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Aesthetic Action

FLORIAN KLINGER

STANFORD UNIVERSITY PRESS

Stanford, California
Stanford University Press
Stanford, California

© 2024 by Florian Klinger. All rights reserved.

No part of this book may be reproduced or transmitted in any form or by any

means, electronic or mechanical, including photocopying and recording, or in any
information storage or retrieval system, without the prior written permission of
Stanford University Press.

Printed in the United States of America on acid-free, archival-quality paper

Library of Congress Cataloging-in-Publication Data

Names: Klinger, Florian, author.

Title: Aesthetic action / Florian Klinger.
Description: Stanford, California : Stanford University Press, 2024. | Includes
bibliographical references and index.
Identifiers: LCCN 2023011519 (print) | LCCN 2023011520 (ebook) | ISBN
9781503636972 (cloth) | ISBN 9781503637627 (ebook)
Subjects: LCSH: Aesthetics, Modern. | Action theory.
Classification: LCC BH151 .K56 2024 (print) | LCC BH151 (ebook) | DDC 111/.85—
dc23/eng/20230721
LC record available at https://lccn.loc.gov/2023011519
LC ebook record available at https://lccn.loc.gov/2023011520
CONTENTS

Preface
ONE: The Unsettling
1. The Thought of Aesthetic Distinction
2. Life Form and Settledness
3. Aesthetic Unsettling
4. The Use of Unsettling
5. The Account
TWO: Accounting for Ourselves
1. Determinacy
2. The Original Scene of Self-Determination
3. Form as Answer: Hegel’s Conception of the Aesthetic as
Determinacy
4. Form as Question: A Conception of the Aesthetic as
Indeterminacy
5. The Task of a Unified Accounting
THREE: A Three-Way Capacity
1. Rationality and Indeterminacy
2. A Rational Capacity
3. Failed Attempts at Conceiving Indeterminacy
4. Indeterminacy as Part of Our Form
5. Indeterminacy as Such
FOUR: Logical Account of Aesthetic Action: Aspectual
Irresolution
1. The Concept of Aesthetic Action
2. Distinction through Aspectual Irresolution
3. Internal Unity in Crisis
4. Aesthetic Indeterminacy
5. External Unity with Action at Large
FIVE: Material Account of Aesthetic Action: Bond without
Terms
1. Logical and Material Accounting
2. Bond without Terms
3. Aesthetic Interaction
4. Life as Such
5. The Question of Who We Are
SIX: Aesthetic Transformation
1. Aesthetic Action as Transformation
2. Performance without Resources
3. The Work of Aspectual Irresolution
4. Transformation That Includes Its Terms
5. The Aesthetic Self
SEVEN: The Use of the Aesthetic
1. The Political as Example
2. Our Form as Political Task
3. Tino Sehgal: Genus Politics
4. Kara Walker: Politics of Difference
5. Mazen Kerbaj: Politics of Life as Such
Notes
Bibliography
Index
PREFACE

When you work in philosophical aesthetics, as I do, you face one

particular difficulty: this tradition is unified by little more than the
question of whether there might at all be such a thing as the
aesthetic and—if the answer is yes—whether pursuing it is worth our
while. Unlike most other traditions, this one involves questioning its
own right to exist. With every book in aesthetics, the question of
why there might or should be a concept of the aesthetic needs to be
answered anew.
This book invests in the possibility of having such a concept, while
at the same time not taking anything about it for granted. There is
here not a thought of the sort that presumes what the aesthetic is—
or at least such was my attempt. But then of course a starting point
must be assumed, and here this comes down to a certain conception
of ourselves as social and rational performers of the human life form
—performers to whom the question of who belongs in this form
presents itself as a political problem.
So while this book is unapologetically theoretical, and its language
often technical, there is no way it can ground its language in an
already established vocabulary—say, of a particular subfield of
philosophy, academic discipline, or community in the arts. There is
no context—in contemporary philosophy or elsewhere—to which the
aesthetic belongs by default, and addressing it requires that one
convene one’s own conversation.
If, consequently, this book is the opposite of a specialist
conversation between initiates, with the benefit of presenting itself
to readers in a highly inclusive manner, the downside is at the same
time obvious. That no default language exists renders the
communication that is this book fundamentally precarious. The only
way I could hope to develop this communication was by following
the cues provided by artistic production as it happens today, and
through the help of a diverse cast of interlocutors—interlocutors
whose role, in this regard, was not merely to put the project to the
test or contribute thoughts of their own but to make it possible in
the first place. My gratitude goes out to all of them.
Colleagues, students, and friends who contributed to the book in
conversation are Marcello Barison, Vance Byrd, Daniel Carranza,
Michel Chaouli, Paulina Choh, Christopher Clarke, David Hernandez,
Kirsten Ihns, Abhishek Kaicker, Demetra Kasimis, Sebastian Klinger,
Tobias Lehmkuhl, Richard Neer, Sarah Nooter, Marita Tatari, and
Rahel Villinger. Erica Wetter, my editor, provided excellent
stewardship; two anonymous reviewers for Stanford University Press
contributed generously to the development of the manuscript. I
received feedback on versions, chapters, or parts of the manuscript
from María Acosta López, Amir Eshel, Matthias Haase, Thomas
Khurana, Yun Ha Kim, David Kretz, Susanne Luedemann, Tom
Mitchell, Mark Payne, Robert Pippin, Eric Santner, Kenneth Warren,
and David Wellbery. Maya Nguyen’s artistic practice has been in an
ongoing exchange with the making of the book, and she has been a
protagonist in the development of its central ideas.
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ONE
The Unsettling

1. The Thought of Aesthetic Distinction

Aesthetic Distinction
This book is an action-theoretical account of the aesthetic. The
account consists in a single unified thought, the thought of aesthetic
distinction. In outline, the thought is this: a certain kind of action
that we perform, by virtue of being aesthetic, is different from all
other action. That it is different by virtue of being aesthetic means
that it is different according to its concept.1
We may gain intuitive access to this kind of difference, I suggest,
by comparing the actions of a young child, a schoolteacher, and an
aesthetic performer in drawing chalk lines on a blackboard. The child
draws exuberant but illegible lines and, at best, aspirationally
performs an action; the child is still being initiated into intentionally
fulfilling a concept of any sort. As they are learning how to write on
the board, their lines are a manifestation of an incomplete fulfillment
of the concept performing a writing exercise. The schoolteacher, for
whom this is simply an everyday part of their work, executes an
action that intentionally fulfills the concept performing a writing
exercise. The concept is determinate, and the teacher knows what
they are doing in this fulfillment: they perform a writing exercise.
The determinacy of their action lies in such a knowing what they are
doing while they are doing it. The aesthetic performer performs an
aesthetic action. Perhaps a version of this action can be found in Cy
Twombly’s Untitled from 1969: chalk lines are drawn in rows on a
dark background, a painting that stages the action of writing on a
blackboard.2 The lines establish the context of teaching and learning
through the performance of an exercise—in the sense of exercise
that connotes discipline, austerity, and perhaps ascesis—a practice in
which the ability to write is affirmed. At the same time, however, the
lines present themselves as illegible, a mere physical expression of
writing rather than a signified content conveyed by it, manifesting in
its looping an exuberance and playfulness that seems properly to
pertain not to the teacher but to the learning child.
Rather than settling on the fulfillment of a single determinate
concept, such as performing a writing exercise (the teacher’s action),
Twombly’s action fulfills two concepts at once—performing a writing
exercise, and manifesting childlike exuberance. Thereby, the action
leaves its overall doing unresolved, because it exhibits both
instruction (a writing exercise) and playful—indeed, childlike—
looping exuberance. There is no room for overlap between these
doings. One cannot in a single action be a teacher and a child
novice.
Therefore, we cannot understand Twombly’s action the way we
would understand a nonaesthetic action that joins its components
such that they are parts either of one another or of an overall action
to which they contribute. Twombly’s action, in its entirety, is
performing a writing exercise, and then, again in its entirety, it is
manifesting childlike exuberance. Those concepts are not parts that
we can relate to one another but rather competing aspects of the
action, each of which describes the action as a whole. While he
fulfills both aspects intentionally, knowing what he is doing and thus
rendering them determinately, the action does not resolve them in a
single determinate concept of something the performer knows he is
doing.
Clearly, then, Twombly’s action does not merely stand next to the
child’s and the teacher’s as another, further action. It absorbs those
actions and deploys them to an end that is altogether different, an
end that we may characterize with the concept
exercise/exuberance.3 The action does not just happen to be
unresolved, as would be an action that is simply incomplete, poorly
executed, or otherwise deficient; rather, it invests in irresolution as
its point. As it intentionally presents itself under two aspects without
settling on either, it presents itself as an aspectual irresolution
between those concepts—a special kind of synthesis that here is
treated as the end or intended point of the action. The unresolved
ambiguity that lies in aspectual irresolution manifests the
indeterminacy that is the distinction of the aesthetic.
Now let us say, for the sake of argument, that the three
performers’ actions look the same—the physical movement of
drawing chalk lines is identical. The child does not yet have control
of their hand; the teacher, while their handwriting has deteriorated
after a long day, still completes the writing exercise; the aesthetic
performer’s action presents an aspectual irresolution. While the
child, the teacher, and the aesthetic performer do starkly different
things, the difference is nothing that we can observe externally.
Instead, we can account for the difference only by referring to the
action’s conceptual articulation in the performer’s intention. One
action falls short of intentionally fulfilling a concept (it is not properly
an action), the other as the fulfillment of a determinate concept, and
the last by suspending such fulfillment and instead presenting itself
as an indeterminacy.
Of course, indeterminacy may also be found in the other
performances. The child’s default indeterminacy is one of a capacity
that is not yet fully developed. This is of interest because it shows
that one cannot perform an indeterminacy by performing
indeterminately. Any indeterminacy in the schoolteacher’s action
would be only accidental, due to their action being incomplete—they
grow tired, run out of chalk, or get called away before they have
fully actualized the concept—a failed execution. By contrast, the
aesthetic performer’s indeterminacy through an intentionally
performed aspectual irresolution has nothing accidental or failed or
incomplete about it, and neither is anything about it inarticulate,
opaque, or mysterious. It is not an indeterminate performance but
rather the determinate performance of an indeterminacy. The
thought of aesthetic distinction allows us to say how this last
indeterminacy is different from both the child’s and the teacher’s.
To rule out misunderstandings, saying that the action’s conceptual
articulation lies in the performer’s intention is not to say that it has
to be the execution of a plan. There is no single way in which
Twombly has to come up with his action in order for it to have the
required form. Empirically, he may indeed enact a plan, or, to the
contrary, he may let the action’s concept emerge only as the
performance is underway. He may articulate his intention in step
with the performance or figure out only belatedly what it is that he
was doing. He may come across the concept by experimentation, by
a process of chance selection, or by giving himself over to ecstatic
transport. What counts is the conceptual articulation arrived at, and
only once and insofar as it is arrived at can the action be said to
have the required shape.
Importantly, the action described here is interaction—between the
teacher and the learner, the aesthetic performer and the audience.
To address the interaction is not simply to add to the description of
the action; rather, the interaction belongs to the action’s concept.
This concept, we said, lies in the performer’s intention—it is first-
personal—and we now qualify this by noting that it also lies in the
intention of two performers as they interact. As a performer of
nonaesthetic interaction, I may find myself opposite the learner in
the role of teacher, or opposite the teacher in the role of learner.
In the role of learner, for instance, I am taught by the teacher; the
teacher teaches me, and I learn from the teacher. These are not
performances independent of each other but rather performances
each of which requires and already includes the other—just as giving
must include taking. Teaching is not acting on another externally, it
is acting on them through their own action: learning is being taught;
teaching is making learn. I share in the teacher’s action with an
action of my own, such that the action performed together is
teaching-and-learning, as we might say. The concept of the shared
action is determinate in that it assigns to each of us our role. The
teacher and I are not in a state of doubt or uncertainty about these
roles; we each know what we are doing together. We have settled
on these concepts and on our roles vis-à-vis one another.
Consider now that I interact with Twombly’s Untitled. The
concepts that the action deploys (performing a writing exercise,
manifesting childlike exuberance) are still determinately available to
me; they are just the concepts involved in my interaction with the
teacher and the child, respectively. But deployed as aspects of the
overall concept exercise/exuberance, the concepts do not amount to
anything determinate. In their unresolved ambiguity they manifest
the indeterminacy in which we found the distinction of the aesthetic
to lie. That the action is unresolved between its competing aspects
does not make the action inaccessible or inarticulate—after all, I can
say of what it consists—but there is a sense in which it is impossible
to say what it is that I do as I interact with it. Just as the performer
cannot say from a first-person perspective what it is that they are
doing while they are doing it (they know they are performing an
indeterminacy, but there is no determinate overall concept of doing
this or that), I cannot say what I am doing while I interact with it.
I am not therefore released from engagement with the action, as I
would be were the encounter with something that presents itself as
inarticulate. The action offers itself up in a fully articulate way, by
presenting itself under competing aspects, tying me to this
irresolution, this crisis of an action, as we will also say. I am bound
to it as much as I would be in my role as learner vis-à-vis the
teacher. So, while Twombly and I are bound together in the same
shared act, I have to figure out my role vis-à-vis his action, and (on
the other side of the same task), Twombly’s role vis-à-vis my action.
The action binds me not in a shared performance of a shared
concept, but rather in a shared performance of figuring out what it is
that we thus perform together.
From my side, the task of figuring this out must be a matter of
engaging Twombly’s action with an action of my own. The parallel of
teaching-and-learning suggests that Twombly’s action is not working
on me externally, but is rather working on me through my own
action of taking it up. But the parallel ends here, for no
dispositionally available concept offers itself for taking up; on the
contrary, my taking up of Twombly’s action (my own conceptual
rendering of the action) is the only way it becomes available to me
in the first place. The aesthetic action shared between Twombly and
me is not based in a particular conceptual articulation fulfilled by
both of us (the way teaching-and-learning is), but it consists in each
of us fulfilling the concept of aesthetic action independently.
Perhaps the concept of aesthetic action, as such, is available to
me, and I undertake to constitute Twombly’s action as an aesthetic
action. Or perhaps his action teaches me, in guiding me along its
aspects and manifesting their irresolvability, how to constitute it as
an aesthetic action. But it might also happen that I never recognize
the action as an aesthetic action but rather take it as a decorative
design or, indeed, the scribbling of a child—just as I might in turn
take up any of those things as an aesthetic action, treating it as a
readymade.
So, it seems that whether a performance is an aesthetic action is
decided neither by the action of the maker (Twombly) alone nor by
the action of the taker (myself) alone. A maker might extend a
solicitation that is, as a matter of fact, never actually taken up as an
aesthetic action. And someone might take up as an aesthetic action
a performance that was not initially intended to be one. We cannot
but conceive of aesthetic action as an action for which we never
know the other side in the way we do for a nonaesthetic interaction
of the sort presented by the teaching-learning example. (This is not
an empirical matter. Even if I enter Twombly’s studio as he makes
Untitled and he gives me a first-personal account of his intention, I
still have to establish the action in an independent rendering of my
own.)
While an aesthetic action is conceptually completed only by
another aesthetic action, there is no way to say definitively whether
such another aesthetic action will indeed show up. If it does, the
maker’s aesthetic action then enters into an open series of
encounters, each of which is a completion in its own right. This
means that the account offered here can say how a certain
performance (such as Twombly’s Untitled) could be taken up,
conceptualized as an aesthetic action, but the account claims no
authority to declare that any given performance, beyond this taking
up, is conclusively an aesthetic action. And neither can the account
conclusively establish that a given performance is not an aesthetic
action, because we can never rule out that it might still be taken up
under circumstances and in ways that currently elude us.4
So, to conclude our comparison of different kinds of performances,
we note that aesthetic action presents action in crisis, insofar as the
indeterminacy that lies in aspectual irresolution translates into an
indeterminacy in the relations between the performers involved. On
its first, most general description, then, this crisis manifests the fact
that we seem able to perform something that, on the one hand,
corresponds to the general shape of action as intentional, purpose-
oriented performance that is shared with others, while, on the other
hand, it doesn’t function like action at all, since it is the determinate
performance of an indeterminacy made up of competing
determinations that presents itself as irresolvable.
As this kind of performance, aesthetic action functions differently
from nonaesthetic action, produces different effects, and works
toward its own kind of end. Rather than affirming the concepts that
we already possess, the aesthetic distinction presents us with a
suspension of their established use and deploys these concepts (for
instance, performing a writing exercise, manifesting childlike
exuberance) to a use that is not established and does not fulfill an
established function within our action at large. We can understand
this effect as an unsettling of our otherwise settled ways. The
thought of aesthetic distinction is the thought of the unsettling of
ourselves—of our concepts, of our ways of relating to one another,
and indeed of our sense of who we are. The very point of aesthetic
action is to unsettle.
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2. Life Form and Settledness
The Determinacy of Action
To understand how aesthetic action (AA) is both an indeterminacy
and an unsettling, we must identify the determinacy that it
challenges. Broadly, what is unsettled here is us, in a sense of we
that includes, beyond everyone immediately part of this
communication—me, the writer, and you, the reader—everyone else
we count as one of our kind. That is, we follow Marx and Hegel and
Aristotle in thinking of ourselves as genus-being, or Gattungswesen
—acknowledging the life form that we have in common, the human
form, our form.5 To think of ourselves in this way means that our
performances are cast under this genus distinction, which is to say
that the distinction is conceptually at work in everything we do. Each
performance of a thought or action manifests its performer as one of
us; each actualizes the form.
In this tradition, an actualization of ourselves is inevitably
determinate. We see this when we consider the account of action
that this tradition formulates—an account I call, for lack of better
alternatives, the standard philosophical account. With this rubric I
refer not to the way action is commonly conceived,6 but rather to
the articulation of a certain standard that has come to inform action
theory as of late. The standard account presents itself in the guise of
multiple distinctive conceptions that are generally unified by the fact
that they base action in the human life form. Specifically, these
conceptions share the basic assumptions that action is rational; that
it is based in the causality of self-consciousness; that it has the
human form as its standard, actualized in every action; that it refers
itself to the form by way of mediation with other performers who
likewise manifest the form; and that the shared actualization of the
form is a historical process. How to understand these features is
debated by proponents of the account, but their belonging to the
account is not contested.
Among the account’s contemporary proponents, Michael
Thompson, in his neo-Aristotelian conception, makes a point of
referring action to the human life form as its ultimate framework;
Sebastian Rödl bases action in a conception of self-consciousness
developed from Kant, Fichte, and Anscombe; and Thomas Khurana
recently defends a dialectical naturalism based in Hegel and Marx
that, while not strictly an action-theoretical conception, presents our
self-conscious life form as historical.7 There are certainly further
contributions to the standard account,8 and the assumption
expressed by our tentative list of features is that such an account is
systematically available, at least as a shared philosophical project
with systematic ambition.
That action needs to be determinate is not one of the declared
and internally debated features of the standard account; it is taken
for granted. For present purposes, I present the account with the
aim of showing how it binds action to determinacy. As I must limit
myself to select features of the account that I consider indispensable
to understanding how it conceives the determinacy of action, I set
aside virtually everything the account itself takes as a matter of
debate (i.e., differences between proponents) and instead draw on
that which the standard account leaves undebated because it treats
it as presupposed.
In briefest outline, the standard account says that an action is the
determinate actualization of our life form—an actualization that is
logically articulated insofar as it relates to other action and materially
articulated insofar as it is shared between a multiplicity of
performing individuals. This broadly reflects Aristotle’s distinction
between form and matter: our life form is articulated by the order of
our performance in which it has its logical unity, and by the
distribution into performing individuals in which it has its material
multiplicity. An actualization of our form conjoins the relating of our
actions according to the first, logical, articulation with the relating of
our bodies according to the second, material, articulation.9
As such an actualization of our form, an action stands under
rational causality, the causality of self-consciousness; this is
expressed by two theses that together describe the concept of
action according to the standard account: the logical unity thesis and
the material multiplicity thesis. The unity thesis locates our form’s
logical articulation in the way in which the distinctive causality of
self-consciousness relates actions in a unified order—as determinacy.
The multiplicity thesis locates our form’s material articulation in the
way in which it relates its performers through a sharing of the same
distinctive causality—as individuality. The concept of practical
rationality must include both theses, I contend, even as we should
note that the second is less commonly endorsed by philosophers
than the first.
In the remainder of this chapter, I provide a first outline of the
undertaking of the book: to account for the way in which
nonaesthetic, historical action is unsettled by aesthetic action, which
I show by accounting for the way the philosophical standard account
(in which there is only historical action) is challenged by the account
that I propose (in which there is, in addition to historical action,
aesthetic action). This challenge to the standard account will lead
me to reconceive both the logical unity thesis and the material
multiplicity thesis. It is this twofold reconception which I refer to as
the thought of aesthetic distinction.
It might seem odd to introduce the thought of aesthetic distinction
by way of an outline. After all, one either is thinking a thought or
one is not, and this alternative seems to undermine the usefulness
of preparatory work. But we need not dismiss the outline, in all its
admitted sketchiness. There is a sense in which a thought is had
only when it is had in its entirety, and it is such an entirety that this
opening chapter offers—a first grasp.
We begin by looking at what the standard account says about
action according to its logical and material articulations, as an
account of action’s determinacy. We give substantial consideration to
the standard account to provide the reader with the basic concepts
on which this book as a whole relies.
Logical Unity
The logical unity thesis accounts for the unity of action. An action is
the exercise of a capacity—say, writing on the board, asking a
question—a determinate concept from which the action that
actualizes the concept derives its determinacy.10 Such determinacy is
rational if it stands under the specific causality by which it refers
itself to another action that serves as its reason: I am moving my
arm because I am writing on the board because I am doing my job
as a teacher, and so on.11 I am moving my arm because I want to
write on the board such that my moving my arm is the means to the
end of writing. Or, to render explicit the reasoning involved: my
wanting to write and my knowing that moving my arm is a means to
do it provide the premises that lead me to the practical conclusion to
move my arm.12 This is the “reason for acting” that answers
Anscombe’s “Why?” question.13 The reason is what makes my action
good, that for the sake of which my action is performed; being good
for something, or simply the good, is the standard of such practical
reasoning.
The sense of cause expressed in because is as follows: to explain
rationally an action is to justify it, or, as we also say (and this is
something standardly understood in this sort of account), to
establish its normative authorization: I am writing on the board is
what brings me to move my arm in unity with saying that this,
moving my arm, is the action demanded by my writing on the board.
In this sort of explanation, the motivating reason why I perform an
action, and the normative reason why it is to be performed, are
one.14
These two things are one in that the one whose action is
explained is the one who does the explaining. The nexus that
connects actions through reasoning is first-personal; it consists of
intention in Anscombe’s sense. Not only does the performer
themselves do the reasoning, but the reasoning determines the
action precisely insofar as the performer knows it to be their own. As
Rödl explains, to connect actions (and thoughts) intentionally means
that I connect them as mine—not by thinking them to be mine in a
separate act, but by my thinking them to be mine inhering in
thoughts and actions as the cause of their unity. This describes self-
consciousness as the principle of individual life. We can consider it
the action-theoretical appropriation of Kant’s thesis that “[t]he I
think must be able to accompany all my representations.”15
The unity thus constituted through the nexus of intention is the
order of my action. An order that relates actions qua being good for
something is teleological; it relates them as means and ends. On the
one hand, an action is an end for other action that contributes to it
as its means, whereas, on the other hand, it is a means for other
action to whose end it in turn contributes. Referring to the
contributing action, we speak of partial or sublevel action: the end
(action) of writing on the board involves the means (sublevel
actions) of standing, moving one’s arm, formulating what to write,
and so on, just as it in turn contributes as a means (sublevel action)
to the end (action) of finishing today’s lesson, teaching the students
how to write, doing one’s job as a teacher, and so on. In all this,
what counts as action and what counts as sublevel action is a matter
of the performer’s first-personal understanding.
But not all ends can be strung together in the same way, because
ends manifest different temporal shapes. According to a vocabulary
that has been in use since Aristotle, an action that fulfills a finite end
has the temporal shape of a performance—it is a movement
(kinesis) of the sort writing a sentence on the board. A movement
has a beginning, a middle, and a conclusion: phases that the action
needs to traverse to arrive at its end, and it has been said that the
action’s progressive sense (its moving through phases) contrasts
with its perfective sense (its reaching its end). Action that fulfills an
infinite end, in turn, has the temporal shape of a practice, it is
activity (energeia) of the sort working as a teacher. An activity is an
ongoingness whose end is fulfilled at once, by any performance of
the required sort. The progressive sense of the action has been said
to coincide with its perfective sense. A practice concept is available
dispositionally or habitually, such that any actualization in an open
series of actualizations fulfills the concept, none being either first or
last. (Note that we render as sense what is commonly called the
aspect of the verb, to avoid confusion with Wittgenstein’s concept of
aspect that is central to our discussion throughout the book.16)
Together, the two types of end describe the way in which the
determinacy of action is manifested. The logical support that these
temporal shapes provide for each other implies generally that
movement can contribute to either further movement or to activity,
while activity can contribute only to further activity. The highest-level
activity, the ultimate action concept that holds together our practical
order, is our life form. Because the causality of self-consciousness
produces the determinacy under which an action manifests its
performer as one of us, the actualization of any concept is one with
the actualization of our form as a whole. We think not of the
determinacy of the action and, separately from it, of the determinacy
of our form as a whole, but rather of a unified determinacy
manifested in a single act.
To characterize the way in which a performer refers themselves to
the human life form, Marx describes the form as a genus, and claims
that we actualize ourselves as a “genus-being” which, as Khurana
shows, is precisely not the “species-being” or “species-essence” into
which the term Gattungswesen is commonly translated.17 If a
species is an instantiation of the universal genus of life, species
performers are bound to manifest the genus through a particular
nature that is given to them, whereas genus performers, in
manifesting the genus directly, transcend limitation by any such
particular nature; they are unbound in a sense that no given species
form can exhaust. Not a species, but the genus as the ground of any
species is the normative standard to which human activity refers
itself.18
While other living things—plants or animals—are determined by a
species nature under which they fall, we are not determined by our
nature on the species level. Aristotle says that while the
characteristic activity of every other thing is determinate, the
characteristic activity of the human is indeterminate insofar as it is
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went into effect. I did not propose to put myself in the shape of a
criminal.”[56]
It may be a matter of surprise to many that even one man of this
kind could be found in Chicago. If such virtue were prevalent the
enforcement of law would be easy. Mr. Douseman says that for 6
months after the Interstate Law was passed no rebates were paid;
everybody was on an equality. “After the first six months, rebates
began to be given. At the end of the first year they were quite
frequent, and they have continued ever since. Prior to 1887 the only
time when rates were absolutely solid, when every one was on the
same basis, was when the Vanderbilts were trying to bankrupt the
West Shore road, and rates were down to 12 cents in New York.
Everybody then, as I understand, had the same rates.”
The condition of things in 1890 is shown by the reported
statement of a Chicago railroad manager quoted by the Commission.
“The situation in the West is so bad that it could hardly be worse.
Rates are absolutely demoralized, and neither shippers, passengers,
railways, nor the public in general make anything by this state of
affairs. Take passenger rates for instance; they are very low; but who
benefits by the reduction? No one but the scalpers.... In freight
matters the case is just the same. Certain shippers are allowed heavy
rebates, while others are made to pay full rates.... The management is
dishonest on all sides, and there is not a road in the country that can
be accused of living up to the Interstate Law. Of course when some
poor devil comes along and wants a pass to save him from starvation,
he has several clauses of the Interstate Act read to him; but when a
rich shipper wants a pass, why, he gets it at once.”[57]
Complaints and investigations from time to time in subsequent
years showed the continuance of these conditions. For one concern a
large number of cars of corn were carried from Kansas City to St.
Louis at 6 cents per hundred lbs. while the tariff was 15 cents.[58] In
the traffic to Chicago one firm shipped all the grain over one road,
and another firm “had the rate” on another line. It was clear that
these shippers had advantages that enabled them to keep other
shippers out of the field.[59]
A wholesale grocery house getting 25 percent rebate on its
shipments established branches in various cities. Through a
disagreement with one of the railroads that thought it was not
getting its share of the business, the rebate enjoyed by one of the
branches was withdrawn, and the branch in that city went out of
business. A leading dry-goods firm declared that so long as it secured
a rebate of 25 percent it had no objection to existing methods of rate-
making.[60]
The International Coal Company declared, in a suit against the
Pennsylvania Railroad for damages, that it was driven out of
business by discrimination, its rival receiving rebates of 20 cents per
ton in 1898–9 and 10 cents per ton in 1899–1900.
The railroads show a disposition to back each other in disregarding
the law. Mr. McCabe, traffic manager for the Pennsylvania lines west
of Pittsburg, said the Pennsylvania system would stand by any rate
made by its connecting lines.[61]
 CHAPTER IX.
SUBSTITUTES FOR REBATES.

Numerous substitutes for the direct rebate were used. In some

cases $10 a car was paid on shipments of flour from the Northwest
under pretence of paying for the cost of loading the car above the
minimum weight.[62] Railroads paid 50 cents for the loading of each
private stock car, and ¾ of a cent for every mile the car was hauled,
loaded or empty. Yardage was also paid to the car-line for keeping
the cattle in its charge in its own yards, at the rate of 3½ cents per
hundred lbs. for all cattle hauled to its yards. “The amount of these
rebates,” said the Commission, “more than pays the entire cost of the
improved stock cars within 2 years, besides covering operating
expenses.”[63]
Twenty-six railroad companies operating in the territory extending
in different directions from Chicago, and engaged in the business in
which discriminations by allowances of car-mileage were supposed
to exist, were summoned to make a showing of the allowances paid
by each of them for car-mileage for the different classes of cars
furnished by shippers, car companies, and individuals, or connecting
lines. A single railroad company paid car-mileage to 65 different
companies or firms owning cars, of which number 54 were shippers
and the rest fast freights. The Commission found that the mileage
paid on private cars yielded a profit in many cases of 25 percent, 50
percent, and even more.
“The rates allowed for car-mileage were shown to be as follows:
For ordinary freight cars, a uniform rate of ¾ of a cent a mile; for
Pullman palace cars, 3 cents a mile; for Pullman tourist sleepers, 1
cent a mile; for ordinary passenger cars exchanged with other
companies, 3 cents a mile; for baggage, mail, and express cars
exchanged with other companies, 1½ cents a mile by some roads,
and 3 cents a mile by others; for refrigerator cars used for carrying
dressed beef, 1 cent a mile in some cases, and in other cases ¾ of a
cent a mile; for furniture cars, oil-tank cars, palace live-stock cars,
and other cars owned by private individuals and companies, ¾ of a
cent a mile. Some companies pay mileage on tank cars both loaded
and empty, and some only when loaded. For palace horse-cars no
mileage is allowed on some roads, shippers in such cars paying for
the car.
“The cost of the investment in cars, and the amount of mileage
allowed for their use, show that the investment is very profitable.
Refrigerator cars cost from $900 to $1000; private cattle-cars cost
about $650; oil-tank cars about $610; cars used for the
transportation of live hogs about $500; ordinary freight cars from
$450 to $500. Repairs on the cars are made by the railroad company
in whose use they are when repairs are required. The life of a box car
averages 15 years, and of a refrigerator car 8 years.”[64]
“Private cars,” owned by the railroads but chartered for private
use, were the subject of discrimination of another kind. For example,
a commercial salesman travelled with his assistant over the Northern
Pacific in a private car stocked with samples. For the first trip he paid
15 round-trip fares between St. Paul and Portland, but for
subsequent trips the road charged 15 local fares from point to point
where stoppages were made. As theatrical and other parties in
private cars were usually carried for 15 round-trip fares it was alleged
to be unfair to charge the drummer local rates.[65]
Terminal charges for delivery at certain places were made a means
of discrimination.[66] Free cartage for some shippers and not for
others,[67] or for one town and not for another, gave a decided
advantage to the favored shippers.
To get the business of B., a Pittsburg dealer in beer, the B. & O.,
with the approval of Wight, one of its general officers, gave B. 3½
cents per hundred for hauling his own beer from the station, while
K., another beer dealer there, received no such concession, but paid
the same freight rates and hauled his beer at his own expense. Wight
was indicted and convicted before the district court for violation of
Section 2 of the Interstate Act, and the United States Supreme Court
sustained the decision in 167 U. S. 512, May, 1897, holding that the
cartage allowance in one case and not in the other was a
discrimination under the 2d section of the Commerce Act.
In Grand Rapids, Michigan, free cartage had been in vogue for 25
years, but in Ionia, near by, no free cartage was afforded by the
railroads, although the station was nearer the centre or main delivery
area of the city than in Grand Rapids. This had the effect of a
discrimination against the merchants of Ionia amounting to about 2
cents per hundred lbs.[68]
In June, 1889, the Commission asked most of the leading roads,
585 in number, for information about free cartage delivery. From the
answers it appears “that 65 railroads allowed free cartage delivery or
equalizing cartage allowances, and 389 railroads do neither; 200
companies only switch cars over to mills and manufacturers. No
company furnishes free cartage delivery at all stations, but as a rule,
only at a few stations. The estimated cost of free cartage delivery will
average about 2½ cents per hundred pounds. Where an allowance is
made for switching or for equalizing distances from shippers, the
average cost is about $2 per car or $2.50.”[69]
Denial of the stoppage-in-transit privilege at one locality while
allowing it to others is unlawful.[70] Differences in the time allowed
for unloading may amount to a substantial preference. At
Philadelphia 96 hours was allowed for unloading, against 72 hours at
interior points, for coal, coke, or iron, and 48 hours for other goods.
With demurrage charges of $1 for each day’s delay in unloading
beyond the allotted time, the difference between 48 and 96 hours
would mean $2 a car.[71]
Free storage is another method of favoritism, sometimes used
systematically and extensively, as described by the Commission. “A
shipper sends a carload of freight to a specific destination consigned
to his order by arrangement with the carrier. The freight is kept in
the car or freight house or some warehouse which the carrier
controls, and on orders of the shipper or his agent issued from time
to time the freight is delivered in small lots to designated persons.
These persons are the actual consignees, and the shipper is enabled
by this means to avoid paying the higher less-than-carload rate and
to reap other advantages through this privilege of storage. Such
special facilities as storage, handling, cartage, distribution, and
reshipment of less quantities, either without charge or at extremely
low compensation for the character of the service, amounted
substantially to providing a shipper with branch business houses.”[72]
Overbilling and underbilling have been found to be very
convenient substitutes for the rebate. A bill of lading may
acknowledge the receipt of 70 barrels of flour; 65 only are shipped,
and the railway pays damages for the loss of the 5 non-existent
barrels. On the other hand railroads have been known to suggest to
millers that they ship flour on the generous plan of shipping 200
barrels and billing 125.[73] Some shippers have been allowed to ship
only 4 boxes of peaches to the hundred lbs., while others were
permitted to ship 6 boxes to the hundred lbs. “That is the billing.
Sometimes peaches are billed 4 boxes to the hundred lbs. to one
point, and 6 boxes to the hundred lbs. to a point 350 miles farther
on.”[74] At another time the cashier of an important firm is made a
nominal agent for the railway company, and under the name of
commission to him an enormous rebate is allowed for all the
business his employers send over the line. Or again, the railway
company purchases from a favored trader its supplies of the goods in
which he deals, at a fancy price.
The “expense bill system” has proved to be an instrument of
preference and fraud. On presentation of an “expense bill” showing
payment for shipments into Kansas City the railroads would allow
reshipment of an equal weight from Kansas City to Chicago at the
balance of the through rate from the point of origin to Chicago.[75]
This gave grain from the West an advantage over grain grown near
Kansas City. When the rate from Kansas City to Chicago was 20 cents
on wheat and 17 cents on corn the grain carried on the balance of the
through rate under the expense bill system was carried 8 to 10 cents
less than grain grown in Missouri and Iowa.[76]
Not satisfied with the discounts obtained on actual expense bills,
shippers altered bills and forged new ones to enlarge their traffic at
the cut rates. In this way “expense bills showing a high balance were
constantly substituted for those showing a low balance.”[77]
Rebate equivalents were given in the form of elevator rebates and
allowances. Elevators owned or controlled by railroad companies
were leased at nominal charges to favored shippers, or secret
commissions were paid to favored parties for all grain consigned to
specified elevators. One railroad for example paid a concern, holding
a line of elevators on the railroad, 1¼ cents per 100 on all grain
consigned to those elevators.[78]
In this case the consignment was 150 cars a day from November to
May, averaging 32,000 to 34,000 lbs. a car. The commissions
therefore amounted to $4 a car, $600 a day, $120,000 a year.
The United States Industrial Commission says, under the head of
“Freight discriminations and allowances to elevators:” “On each of
the leading railways from grain-producing sections to Chicago,
allowances, ranging from one-half to 1½ cents per bushel, are made
on grain to one or two favored firms.... The favored elevators are thus
enabled to pay higher prices for grain. The average profit in handling
grain is less than 1½ cents per bushel, and smaller buyers can thus
easily be driven out of business.... The small shipper being driven out
of business, the large dealer is then in a position to depress the price
of grain to the producer.”[79]
The railroads deny equal rights in the building of elevators. A
railroad which had granted the right for two elevators at Elmwood on
the company’s right of way refused to give H. & Co. the same
privilege. The State Board of Transportation ordered the railroad to
discontinue the discrimination against H. & Co., and give them the
same privileges as others. But the United States Supreme Court held
that the road could not be forced to grant its property for private use.
[80]

One method of discrimination I learned of in the West a few years

ago is not adequately described in any report.[81]
The head of a road running into Chicago from Missouri River
points formed a grain company to buy grain in Kansas City and sell it
in Chicago. The railway guaranteed the grain company against loss.
When wheat was 50 cents in Kansas City and 60 cents in Chicago,
the grain company paid 51 cents in Kansas City to get the grain. The
railroad charged the regular 10 cent tariff. The grain was sold at 60.
The railroad paid back 1 cent on the guarantee and still made 9 cents.
And the railroad-grain-company-combine was able to drive other
buyers out of the market and other railroads out of the traffic. The
Santa Fe, for example, carried 28 percent of the grain going into
Kansas City, but only hauled 3 percent out to Chicago.
 Railroads sometimes seek to evade the law by contracting to
deliver goods at a certain price including the freight and the payment
for the goods in one lump sum, so that the freight charge is merged
and cannot be ascertained. Nine years ago, in 1896, the Chesapeake
and Ohio Railroad contracted with the New York, New Haven and
Hartford to deliver 2,000,000 tons of coal at New Haven at $2.75 a
ton. The published freight rate at that time was $1.15 and the price of
the coal at the mines $2 a ton. The Interstate Commerce Commission
held that this was a discrimination by the Chesapeake and Ohio
Railroad against every independent mine owner in its territory, and
that the railroad had no right to contract to sell coal at any price. The
Federal Court sustained this view, and it is stated that the
Department of Justice will ask the Supreme Court for a blanket
injunction against the two railroads, restraining them from carrying
freight at less than the published rates. It is said that J. Pierpont
Morgan guaranteed that the Chesapeake and Ohio would perform
the contract.
Action against an individual or company is quite as effective a
form of discrimination as action in favor of a rival. Shippers at a
certain place on the Chicago and Northwestern were handicapped by
refusal of through rates on asbestos, compelling them to pay higher
rates than their competitors.[82] A Southern railroad charged the
Bigby Packet Company a much higher rate on cotton from Mobile to
New Orleans than the established rate on local shipments of cotton,
in order to discourage shipments by way of the Packet Company
from the point of origin in Alabama, and compel the cotton to travel
all the way by rail.[83]
 CHAPTER X.
DENIAL OF FAIR FACILITIES.

The refusal to furnish cars in fair proportion is a familiar form of

discrimination all through this period, usually in combination with
other forms of preference. In Kansas, on the line of the St. Louis and
San Francisco Railway, were two coal companies whose plants were
of about equal capacity, and several individual shippers. The railway
and its officials became interested in one of the coal companies, and
by rebate and other process it was given rates which averaged only
forty percent of the rates charged other shippers. The result was that
all the other shippers were driven out of business, part of them being
hopelessly ruined before giving up the struggle. In addition to rate
discrimination the railway practised gross favoritism in the
distribution of cars. For example, during one period of 564 days, as
was proven in court, the road delivered to the Pittsburg Coal
Company 2,371 empty cars to be loaded with coal, although such
company had sale for, and capacity to produce and load, during the
same period, more than 15,000 cars. During the same time this
railway company delivered to the Rogers Coal Company, in which the
railway company and C. W. Rogers, its vice-president and general
manager, were interested, no less than 15,483 coal cars, while 466
were delivered to individual shippers. In other words, the coal
company owned in large part by the railway and its officials, was
given 82 percent of all the facilities to get coal to market, although
the other shippers had much greater combined capacity than the
Rogers Coal Company.
During the last four months of the period named, and when the
Pittsburg Coal Company had the plant, force, and capacity to load
thirty cars per day, they received an average of one and one-fourth
cars per day, resulting as was intended, in the utter ruin of a
prosperous business and the involuntary sale of the property, while
the railway coal company, the railway officials, and the
accommodating friends who operated the Rogers Coal Company,
made vast sums of money; and when all other shippers had thus
been driven off the line the price of coal was advanced to the
consumer.
Another railway interested in a coal mine furnished cars in
abundance to that mine and to others that would sell their product to
the mining company in which the railway was interested, but
systematically failed to furnish cars to other operators.[84] One
operator, after being forced for years in this way to sell his product to
the railway mining company at a very low price, was obliged to build
a railway of his own in order to reach other lines of railroad and so
have a fighting chance for cars.
In Arkansas a coal mine owned by the Gould interests was able to
ship its product to market at very low rates, while the owners of an
adjoining mine were forced to haul their coal to the same market in
wagons because the rates charged them from the coal railway were so
high as to absorb the whole value of the coal at destination.
A big capitalist in the West got hold of great oil fields on the Pacific
slope, wonderful prospects, contracts to supply big cities, etc. Some
one told him he had better see the railroads before he made his
contracts. He thought the transportation question would be all right
and went ahead. When he got his contracts made and wanted to ship
the oil, he asked for cars, and then he found the transportation
question was not all right. He could not get the cars.
Sometimes a railroad has arbitrarily refused to haul goods to
certain consignees. A case of this kind came before the Texas Railway
Commission in the case of the Independent Compress v. Chicago,
Rock Island and Texas Railway Company. The Bowie Compress,
located at the same station with the Independent, had some sort of
pull which caused the railroad to refuse to haul cotton to that station
unless consigned to the Bowie Compress. The railway also allowed
compression charges out of the through rate on cotton shipped to the
Bowie Compress, refused freight from points of origin, and reshipped
the cotton from the Bowie press at through rates, while refusing such
concessions to others.[85]
 The refusal to deliver at a certain place may be as effective
sometimes as the refusal to deliver at all. When in 1890 Mr. Nelson
Morris tried to establish competitive stock yards in Chicago to get rid
of the graft of the Union Stock Yards owned largely by railway
interests, the Vanderbilts being in the lead, his enterprise was loudly
applauded by the stock raisers of the West; but the railroads made
short work of Morris. They simply refused to deliver to his yards the
cars shipped there. They did not recognize any such place as the
Morris yards and calmly hauled all cars to the old terminal. If Mr.
Morris wanted them he must come and get them and pay switching
charges. This ruined the venture.
Big shippers may be given an undue advantage by excessive
difference between the rates on carloads and less than carloads.[86]
On June 29, 1898, the Western railroads advanced their less-than-
carload rates to the Pacific Coast to a minimum difference of 50
cents a cwt. above the carload rate; and “on a great many
commodities the difference is greater than the profit on the
goods.”[87] The Interstate Commission regards a moderate reduction
on carload shipments as fair, but will not sanction lower rates for
cargo or train-load quantities than for carloads.[88]
 CHAPTER XI.
CLASSIFICATION AND COMMODITY RATES.

Classification and commodity rates afford many examples of

discrimination in the period we are studying. We find furs and fur
scraps classed as double first-class, while hats and fancy products,
for which these commodities constitute raw material, were first-
class.[89] Celery was classed with peaches and grapes, instead of with
cauliflower and asparagus, lettuce and peas.[90] The charge for beans
and peas (70 cents) was almost double the charge on tomatoes (44
cents).[91] Flour for export was carried at much lower rates than
wheat. Before 1886 wheat was carried from Texas, Missouri, and
Kansas at 15 cents per hundred lbs. less than flour, without regard to
distance. From 1886 to the end of this middle period the rates on
wheat for export show a difference of 4 to 11 cents per hundred below
the rates on flour. As the profit to American millers on flour for
export is from 1 to 3 cents per hundred it is clear that such
discrimination is prohibitive upon American millers in favor of
English and other foreign millers. The public policy and good railway
policy seem to require the same rate on export wheat and export
flour.[92] Corn was carried between Kansas points and Texas points
for 7 cents per hundred less than corn meal,—a strong discrimination
against Kansas millers.[93] The Eastern railways also carried corn at
lower rates than corn meal to Eastern mills, and carried the meal,
hominy, ground corn, etc., back to Indiana. This gave the railways
more traffic, but it was a tremendous waste of industrial force and
injured the Western mills, since a discrimination of 5 percent was
sufficient to eat up three or four times the profit of any miller.
The Southern Railway put soap in the sixth class with a rate of 49
cents a hundred, or 33 cents when shipped by large manufacturers,
while Pearline was put in the fourth class with a rate of 73 cents a
hundred. Pearline and soap are competitors. There is no appreciable
difference in the cost of transportation. But Pearline commands a
higher price, so the railways charged more than double the rate they
got for soap from the manufacturers. In another case brought before
the Commission in 1889, soap in carload lots was put in class V,
while sugar, cerealine, cracked wheat, starch, rice, coffee, pickles,
etc., were in class VI. One make of soap was put by many railroads in
the second class, while other soaps of similar use and value were in
the fourth class.[94]
One of the strangest anomalies of classification is the rating of
patent medicines as first-class, while ale and beer are third class. In a
complaint on the latter score by a prominent manufacturer of patent
medicines against the New York Central and other railroads, it was
shown that the medicines were similar in bulk and intrinsic value to
the liquors, and it is possible that the similarity went much farther
than this.
Blocks intended for wagon-hubs took one rate on the Lake Shore
and Michigan Southern and boards for wagon boxes another rate.
Railroad ties have been charged a higher rate than lumber. A high
rate on railroad ties prevents their being shipped and depreciates
their value at home, so that the discriminating company is able to
buy them at a low price.
The Union Pacific years ago made prohibitory rates on steel rails in
order to hinder or prevent the construction of a road that promised
to become a competitor of one of the Union Pacific’s connecting
lines. Prohibitory rates on rails, ties, etc., have often been maintained
to obstruct the building of competing lines, and to render them more
costly.
 CHAPTER XII.
OIL AND BEEF.

Oil in Standard hands continued to receive favorable attention

from the railroads throughout the middle period. The Combine was
preferred by an “unreasonable mileage” payment of ¾ of a cent a
mile on its tank cars, loaded or empty,[95] while others who attempted
to ship in tank cars had to pay mileage to the railroads for the return
of their empties; by practically compelling independents to ship in
barrels, and charging for the weight of the barrel; and by making an
arbitrary allowance of 42 gallons for leakage on tank shipments with
no allowance for waste in barrel shipments.[96]
The Commission held it unjust to allow for leakage on tank
shipments and not on barrel shipments; that the weight of the barrel
must not be charged for if the weight of the tank is not, the same
quantity of oil must have the same rate no matter what the package
might be, unless the shippers were offered facilities for shipment by
tank as well as barrels so that the option was theirs. The
representative of the oil combination was questioned by the
Interstate Commerce Commissioners, in relation to the mileage, etc.
“Are you allowed mileage on tank cars?”
“No, sir.”
“Neither way?”
“Neither way.”
But the railroad officials in this case refused to commit oil-perjury.
Asked what mileage they paid the Combine they replied: “Three-
quarters of a cent a mile.”
When Rice asked what the railroads would charge him for bringing
back his empty cars if he shipped in tanks, he was told he would have
to pay 1½ cents or more a mile. He found that if he tried to sell his
oil in California it would cost him $95 to get the empty tank car back,
while the railroads paid the Standard for the privilege of hauling its
empties back. Rice saw that from the South he could get return loads
of turpentine, but the railroads absolutely refused to give him rates.
[97]

Besides all this the Standard was accorded the privilege of

systematic underbilling. According to the testimony before the
Commission in 1898 by the Boston & Albany agent in East Boston,
the centre of the Standard Oil business in New England, the
Combine’s tank cars, which usually weigh from 35,000 to 50,000
lbs., were ordinarily billed at 24,000 lbs. Out of 14 cars sent over
another road from East Boston to Newport, R. I., at least half were
billed and paid for on the basis of 24,000 lbs. to the car, although
their average weight was shown to be 48,550 lbs. per car. It was
claimed that these underbillings were clerical errors. In considering
the motives and reliability of such a claim we must not forget the
curious habit shown by these clerical errors of piling up in great
bunches in the Standard Oil business, and the still more curious fact
that all the errors are in favor of the Trust—none against it. Long
before the Commission had found that the railroads leading from the
oil fields were in the habit of “blind billing” the Standard cars at
20,000 lbs., though the actual weight was frequently 30,000,
40,000, 44,000 or more.[98] Rice complained of this to the
Commission in July, 1887. Immediately all the old numbers on the
3000 tank cars of the Oil Trust were painted out and new numbers
painted on, so that the cars mentioned in the railroad accounts could
no longer be identified with the cars on the tracks.[99] The Standard
has some very oily ways, and knows how to use a pot of paint and a
brush as well as a rebate.
The Standard desired to fix the rates on oil to New England, the
South, and the West, and as usual the railroads let it have its way.
The result was a practice of adding the Boston rate to the local rate
on shipments of oil into New England, which puts the independent
refiners at a great disadvantage. The rate on corn from Cleveland to
Boston is 15 cents per hundred lbs., and to New Haven the same, but
the rate on petroleum from Cleveland to Boston is 24 cents, and to
New Haven it is the Boston rate, 24 cents, plus the local rate, or a
total of 36 cents from Cleveland to New Haven. Now the Standard
Oil has got large warehouses in East Boston, and they bring their oil
by boat and store it there, and then they get the freight rates simply
from Boston down to the Connecticut point, whereas the Western
refiner who has no storehouse has to pay first the Boston rate, and
then this local rate also to the other point, even though the oil may go
direct, so that the rates are practically prohibitive to the Western
refiners.[100]
To shut out the oil fields and independent refineries of Colorado
and Wyoming, the Standard resorted to terrific discrimination in
rates. The Chicago and Northwestern Road would bring a carload of
cattle from Wyoming to Chicago for $105, but for a car of 75 barrels
of oil the freight was lifted to $348. The rates from the Western fields
to San Francisco were also put very high, and the Standard built
great storehouses on the Pacific Coast, which it fills from the Eastern
fields, the freight rates from the East being suddenly lowered when it
wishes to refill the said storehouses, and put back again as soon as
they are full. The people of California are compelled to buy Eastern
oil for the profit of the Trust, instead of buying Colorado oil, because
the freight on the latter is prohibitive.
Aside from these sudden fainting spells of the oil tariff at
convenient seasons for the Standard, the ordinary arrangements
showed thoughtful care for its comfort. The regular rate on oil from
the Colorado oil wells to the Pacific Coast was made 96 cents per
hundred, while the rate from Chicago through Colorado is only 78½
cents per hundred.[101]
The Chicago pork-packers generally had things their own way in
this period, but apparently not always. In 1890 the Commission
decided that the railroads were discriminating against the Chicago
packers by lower rates from the Missouri River on hog products than
on live hogs.[102] Even then, however, they were receiving rebates
from the railroads which made questions of tariff rates comparatively
insignificant.
In 1891 the Federal Grand Jury indicted Swift & Co., the Chicago
packers, for having received $5,000 a month in rebates from one
road alone, the Nickel Plate. Compared to the train loads of their cars
passing east and west on other lines, their traffic on the Nickel Plate
was light.
 In his testimony to the Senate Committee this spring, Mr. Davis
said: “A few years ago one of the Chicago packers was a director on a
Western railroad. He was a large receiver of live-stock from Kansas
City, upon which the freight rate was $54 per car. A rebate of $25
was paid to the packer at the time of shipment, and it was the custom
to file claims for the remaining $29, which were allowed on the
grounds of some imaginary loss or damage to the stock in transit.
The same party paid rebates amounting to from $30,000 to $50,000
a month for every month in the year. On putting down on a piece of
paper the amount of $10,000, and after placing this under the eyes
of a superior officer, he would leave and subsequently look for that
amount in currency by express, and would then proceed to divide it
among certain favored shippers.”[103]
A few years ago, in proceedings before Judge Grosscup of Chicago,
it appeared that while the published rate on packing-house products
was 23½ cents, the favored packers were given a rate as low as 15
cents.
Investigations by the Commission in December, 1901, and
January, 1902, took the lid off of the dressed-meat business and
discovered a large congregation of secret rebates. The Pennsylvania
system was cutting the rate on packing-house products 5 to 7 cents
below the published rate, making it 25 cents and sometimes 22 cents,
in place of 30 cents, from Chicago to New York. Rates from
Indianapolis, Cincinnati, and other points were also cut.[104]
The examination brought out the fact that President Cassatt and
other officers above the traffic manager knew what he was doing and
authorized or permitted the rate cutting.[105]
“Commissioner Clements. Who takes the responsibility for doing
these things, for making these serious departures and cuts, in regard
to the Pennsylvania Railroad? Is it you? Do you do it without any
authority from the officers of that road above you, or do you have
their approval of it?
“Mr. McCabe. I am in charge of the freight traffic, and I do the
best I can under the circumstances.
“Commissioner Clements. Do you act independently of them, or
do you have to have their approval?
 “Mr. McCabe. I assume to do what I think is proper, being
governed by the competitive conditions.
“Commissioner Clements. Do you have reason to know that the
officers above you in the management of that company’s affairs knew
of it?
“Mr. McCabe. Not in detail.
“Commissioner Clements. I do not mean the details. I could have
answered that myself. But as to the general fact that the
Pennsylvania Railroad was cutting the rate in this serious way, was it
known to the president of that company and other officers?
“Mr. McCabe. I do not know.
“Commissioner Clements. Have you ever had any conference
with the officers above you in the management of that company’s
affairs in which you disclosed this condition of things?
“Mr. McCabe. I have said to them from time to time that rate
conditions were so and so; that rates were not being maintained, and
that our competitors were cutting the rates.
“Commissioner Clements. And that you must cut the rates? Did
they sanction it, or approve it, or tell you to stop it?
“Mr. McCabe. I think they left it to my discretion.”
The Big Four, a Vanderbilt line, cut rates 6 cents below the 30 cent
tariff from St. Louis.[106]
Mr. Mitchell, traffic manager of the Michigan Central, says his
road carried dressed meats at 40 cents, or 5 cents below the
published rate.
“Chairman of the Commission. Did you carry any considerable
amount of dressed meats during 1901 that paid the tariff rate?
“Mitchell. I think not.
“Chairman. Practically all of it went at some secret rate?
“Mitchell. Yes, sir.”
This man thought his road paid the four Beef Trust houses
$200,000 or $240,000 a year in rebates.[107]
Mr. Mitchell said rebates were paid indirectly by means of bank
drafts. The railroad makes a deposit in bank. The traffic manager
checks against it, and the bank supplies drafts on New York or
cashier’s checks which are sent to the persons who are to receive
rebates.[108]
The railroads try to be good sometimes, make New Year’s
resolutions, and stop the rebates; but some naughty boy breaks his
vows in two or three weeks, and then the rest follow suit. Here is the
testimony of a Western traffic manager on this point.[109]
“Commissioner. What proportion of the traffic (in provisions)
have you carried at the tariff rate?
“Traffic Manager. It was a very small proportion of the total, and
it was probably along about the first of last year.
“Commissioner. You are accustomed to indulge in New Year’s
resolutions?
“Manager. Yes, sir; we all swear off on New Year’s, and begin
again.
“Commissioner. Is it a fact that from Jan. 1, 1901, there was a
period when the tariff rate (on provisions) was actually applied by all
the roads?
“Manager. Yes, sir; I think it was.
“Commissioner. How long did it last?
“Manager. I think it lasted probably two weeks.
“Commissioner. What led you, then, to cut your rate through St.
Louis?
“Manager. Our agent in Kansas City discovered about January 20
that provisions were moving through Chicago at less than tariff rate.”
The Commission found that all the railroads made low rates for
the Beef Trust, but they could not find any railroad that led off in the
business of cutting rates. Each one said it cut rates because it found
the others were cutting. They were all followers.[110]
The Chairman of the Commission said to the Vanderbilt traffic
man: “I observed that you spoke of your road as following the others.
“Mr. Cost. Yes, sir.
“The Chairman. I have heard a similar statement from other
gentlemen. Have you any idea who is the leader?
“Mr. Cost. No; I have not. I could not give you that information.
“The Chairman. You have never heard of the leader?
 “Mr. Cost. No, sir.
“The Chairman. They are all followers.
“Mr. Cost. That does really seem to be the case.”
Mr. Grammer, general traffic manager of the Lake Shore, testified
in 1902 in respect to “provisions,” cut meats, lard, etc., from Chicago
to New York: “The minimum weight on a car of provisions is 28,000
lbs. The rate is 25 cents. That is about the maximum rate obtained
this last year, 1901, and that means $70 a car. We pay out of that to
the stockyards $2.40 a car for switching, we pay $15 car-mileage for
a round trip of the car, and at New York we pay 3 cents a hundred
lighterage; that is, $2.40 and $15, $17.40, and $8.40—$25.80 which
we pay out of that rate as absolute arbitraries. That leaves the Lake
Shore $16 or $17 net for hauling that car to Buffalo, with the return
car empty, and we have to give practically passenger service to that
traffic. I think it is unremunerative business, and I have always taken
the position that we do not want any provisions on the Lake Shore
road at less than the full tariff rate, whatever that might be. The
dressed-beef minimum will average 22,000 lbs. That car is subject to
the same arbitraries and mileage. The lighterage is 3 cents a
hundred, which would be $6.60 instead of $8.40, and it is subject to
the same service eastbound and westbound as to movement; and
there is not 1 percent of those cars loaded east with dressed beef that
are loaded with any freight coming west.” In spite of the
unremunerative character of the business Manager Grammer says
they cut the rate 5 cents a hundred.[111]
Mr. Paul Morton, at the head of the traffic department of the Santa
Fe, testified in 1902[112] that his road carried dressed meats and
packing-house products below the published rates in violation of law.
“Mr. Morton. We have carried the business from Kansas City to
Chicago for 5 cents less than the published tariff to Chicago and
Chicago junction points.
“Mr. Day. Domestic as well as export?
“Mr. Morton. Both.”
“The Santa Fe,” he said, “at the beginning of 1901 joined with the
other roads in a general declaration of good faith and intention of an
absolute maintenance of rates. We maintained the rate until about
April 1.” The Santa Fe found that they were only carrying 2 percent of