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fulfil its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsylvania and other states, and refined sugar was also forwarded by the companies to other states for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummate, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked."

Having thus rendered nugatory the provisions of the Act, for most of the purposes obviously within its scope, the court held, when the Freight Association case came before it, that the statute did apply to agreements by common carriers of the nature of the agreement there before it. As said by Peckham, J., in the opinion of the court :(a)

"To exclude such agreements would leave little for the act to take effect upon."

It was urged against the applicability of the Act, that such a construction involved a repeal by implication of the provisions of the Interstate Commerce Act. But in answer to this argument the learned Justice pointed out that the Interstate Commerce Act contained no provision either authorizing or prohibiting such agreements, and held, therefore, that there was no case of repeal by implication and no inconsistency between the two statutes. It is most respectfully submitted that in reaching this conclusion the court lost sight of the undisputed legal position that such an agreement needs no statutory authority to make it lawful. In the absence of a statute expressly prohibiting it, it is lawful and always has been lawful. Consequently when the Interstate Commerce Act, though prohibiting certain acts and agreements of a kindred nature, yet left untouched the common-law right of the carrier to enter into an agreement for the fixing of reasonable rates for its services, it did in so far expressly

(a) 166 U. S. p. 313.

continue the authority for the making of such agree

ments.

The decision, however, was otherwise. By construction based upon previous decisions under other acts, it was further held that the terms "trade and commerce" in the Trust Act included the business of transportation by common carriers between the States.

It is now apparent that in the view of the case taken by the Supreme Court the validity of the agreement was not necessarily affected by the circumstance that the contracting parties were common carriers; except in so far as their business of interstate carriage brought them within the scope of the term "trade and commerce between the states.” The decision was not rested upon the conceded right of government to control public employments. A similar agreement for the fixing of prices between parties engaged in any other business, public or private, would have fallen under the condemnation of the Court, provided the business were within the description of interstate commerce.

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In this aspect, the decision of the court is covered, it is respectfully submitted, by the line of historical statement, and legal argument which is the main burden of this treatise. It is as a mere contract or combination in restraint of trade" that the agreement in question was treated by the court. As a violation of the legal obligation of a common carrier to charge only rates that were reasonable, there might of course have been a ground for criminal jurisdiction. If, on the other hand, either of the combining companies had charged rates above those fixed under the authority of the Interstate Commerce Commission, then their action would have had another criminal aspect. But it was conceded on the record, that the rates charged had been reasonable. And it was not contended that there had been any violation of the act regulating interstate commerce.

The case therefore resolves itself into one where the mere act of combining-not to accomplish any unlawful

purpose, or to use any unlawful means for the accomplishment of a lawful purpose-was held criminal, under a statute not expressly prohibiting the particular act in question, and not in terms referring to the particular parties or class of parties proceeded against. So regarded, it is submitted that the considerations urged against the case People v. Sheldon apply with at least equal force here.

Each of these two cases holds that a mere contract, to fix rates or prices of the property of the parties contracting, which interferes in no respect with the freedom of action of all the rest of the world beside, which therefore violates no legal right of any member of the entire community, constitutes a crime.

It is most respectfully submitted, that therein these cases are irreconcilably in conflict with the fundamental principles of the English and American law, as established by a long line of authorities, the soundness of which has never been called in question.

CHAPTER VI.

SOME GENERAL CONSIDERATIONS.

THIS discussion on these questions of law really involves a question of economics. That question is this: Do these combinations, formed to prevent competition among the combining parties, or to raise prices, work any substantial damage to "the public"?

To this question the answer is to be found in the facts of history.

The answer is, that the experience of both the English and American peoples, an experience long and exhaustive, shows that such combinations work no substantial damage to any but the parties combining. Such combinations have been known in England for centuries. They have existed in this country ever since the operations of trade and commerce acquired large proportions. No instance can be cited, where such a combination has been able to raise or maintain prices, of either labor or merchandise, above a reasonable figure, for any considerable time. That is the real reason, why those early statutes were not enforced, why there is an almost entire absence in the English reports of prosecutions for their violation. No one was seriously damaged. No one had any sense of injury. Such combinations have been formed without number in the history of English and American trade, to raise and maintain the prices of all the necessaries of life, of wheat, corn, lard, pork, coal, of substantially all the staples of commerce. No such combination has ever had any substantial result, other than to make a slight rise in prices, in some local market, for a very short time. The only substantial result, to others than the

parties combining, has been the wreck of a few speculators. These combinations to raise prices have been made, not only in the staples of commerce, of which the supply, especially in these modern times, is always large and unknown, but in stocks and securities, of which the supply is limited and exactly ascertainable. The result has been invariably the same, in cases of both classes; only a temporary "flurry in the market." The reason is not hard to find. The combinations always come to an end from their own inherent necessities. The advance of prices is only their primary purpose; their ultimate purpose is the making of sales at the prices so advanced. If the prices are advanced too high, sales cease, and prices soon fall to a figure that is warranted by the existing supply and demand. The unfailing protection of the community at large is always to be found in the interest account. Large amounts of merchandise cannot be carried without large amounts of money, involving in one form or another the payment of large amounts of interest. Meantime, in the case of all staples, all "articles of prime necessity," the streams of supply continue to pour in. Sooner or later, and always soon, the growth of the interest account, with the impending danger of a falling market, compels sales; and the sales, when made, must be made at prices which buyers are willing to pay. If the combinations are small, then it is easy to buy from other sellers. If the combinations are large, then it is a virtual certainty, that some of the combining parties will soon break away from the combination, or prices will be the sooner reduced by the increase in the interest account.

Many men in modern times have been alarmed by the mere magnitude of the masses of capital employed in the great modern so-called "trusts." But this alarm has no sound foundation. It is in that very magnitude, that "the public," and every individual member of it, has the surest protection. The reason is, that where capital is invested in special industries in such large masses, the magnitude of the investments, and of

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