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

the expenditures, with the necessity of paying interest and dividends, compels the investors to put prices down to figures which will bring buyers, and bring them quickly. Moreover, the investment of large amounts of capital in single enterprises invariably leads to large economies. The reason is, that the amount of waste reaches larger figures, and therefore makes a larger impression on the minds of managers. In addition to that fact, the larger the number of men there are employed in a single business, the greater is the certainty that some of them will find new materials, and devise new processes, to be used in that business. The uniform experience, therefore, has been that the modern methods, of consolidation, and concentration of large masses of capital in single industries, have caused large decreases in price, and have thus prevented the very results which have so long been dreaded as likely to be their outcome.

But we get still more light on this branch of our examination from the course of prices in the instances of genuine "monopolies," which exist in large numbers under our law, and are fostered by it. Every patent is a "monopoly." Every author's copyright is a "monopoly." Every railroad company has, to a certain extent, a “monopoly❞—that is, it has a property which is sole and exclusive, and is made such by law. In all these cases it has invariably proved an impossibility in practice, for the owners of patents to keep up the prices of their patented articles, or for the owners of copyrights to keep up the prices of their books, above what is reasonable, in other words, above what buyers are willing to pay. If a buyer is not willing to pay the price of the seller, he simply declines to buy. He buys something else. Or he goes without. In that course the buyer has always found adequate protection. Suppose that some individual today had a strict legal "monopoly" in wheat, and then made the attempt to raise the price of wheat unduly. The immediate result would be that people would use other kinds of food. To "corner" wheat successfully, a man

must be able to "corner" corn, rye, rice, oatmeal, peas and beans, with other kinds of food products too numerous to mention. He might as well try to "corner" the ocean. Every article of trade and commerce, staple or other, has to compete with many other articles, which, though not precisely identical, can be made to serve substantially the same uses. In this way, even railroads, in effect, compete with other railroads, although their control of their own traffic seems at first sight to be without limitation. Take the case of any railroad leading into one of our large cities. In effect, it has to compete with other roads which tap other territory. If its rates are higher than those of other roads, for passengers or merchandise, people will move away and live on other lines. Aside from that, however, every owner of a railroad, of a patent, of a book, or of property of any kind, finds that he makes more money by putting prices down to figures that are reasonable, that is, to figures which correspond to the values of the things sold to the buyers, than by keeping them up beyond those figures.

Prices must be left to that kind of regulation. They need no other. No other can be just. All attempts to regulate prices by the arm of the law, directly or indirectly, by direct legislation, or by criminal indictment, have resulted in failure. Experience shows, that there is no way practicable for the right fixing of prices, except by competition of one kind, that is, competition between buyers and sellers. That kind of competition will always exist, and will always be found effectual to fix prices at figures which are reasonable, and therefore just. That is all that we have the right to ask. It is all that we can get.

Many economists, and many jurists and legislators, in their consideration of these questions, have had an especial fear of the large modern combinations of capital in the hands of corporations. Corporations, in this respect, have seemed more dangerous than individuals. This is a point which calls for some attention.