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ported cases of indictments for mere combinations to raise the prices of the combiners' own property, whether of their labor or their merchandise, are very few. Where their purpose was the doing of legal injuries to others, the law was frequently invoked to punish such combinations. But where the purpose of single individuals, or of combinations of individuals, was limited to the mere raising of the price of their own property, either their labor or their merchandise, the reports of cases in the English courts show an almost entire absence of even so much as an attempt to enforce those old statutes. In time, by common consent, the statutes making such combinations criminal became obsolete. It was found by experience, that they could not be enforced, and that their mere existence, with occasional sporadic attempts at enforcement, did more harm than good. The only effect of such attempts was to cause temporary annoyance to that part of the community which had an especial regard for the law. In the end, the statutes were repealed. The final outcome has been, in England, that it is to-day the law, as worked out by the courts and the legislature together, that there is virtually no limitation or restriction, directly or indirectly, on the right of every individual and corporation, either singly or in combination with others, to dispose of their own labor and merchandise at their own free will. In England today the law is well established, that the ownership of property, of all ordinary kinds, comprises not only the right of free use (always subject to the proviso that its use is to be in such manner as not to interfere with the rights of others), but also the right of free sale, at the will of the owner, whether the property be labor or merchandise, and whether the owner's will be exercised separately or in combination with other individuals.
The experience of this country has been somewhat different from that of England. In our early colonial legal history there is an almost entire absence of attempts to fix prices, of either labor or merchandise, or to interfere in any degree with the full freedom of the citizen in the exercise of his lawful right to sell his own labor, and his own merchandise, on his own terms, or to refuse to sell it at all. Such attempts, so far as they have come under my notice, were first made, at least to any considerable extent, during the war of the revolution, when the depreciation of the continental and state paper currencies, in connection with the severe burden of public expenditures, caused such widespread distress, that, by a common impulse, resort was had to legislation, in different forms, in the attempt to alleviate that distress. In the year 1777, we find action taken in the Continental Congress, and in several of the state legislatures, looking to a protection of the community by legislation, against the advance in the prices of labor and merchandise, and the fall in the prices of the different kinds of paper money. That action took different forms. But those forms, substantially all of them, consisted in attempts to regulate prices by statute. Very speedily they were found to be, not only ineffectual to good, but, on the contrary, effectual only to evil. For that reason, the greater number of them were promptly repealed. Such as were not repealed, if any such there were, were by common consent ig. nored.
Thereafter there was in this country virtually an entire abandonment of all attempts by statute, or by the action of government in any form, to interfere with the freedom of contract in private employments. That condition continued until a recent period, when there has grown up a widely spread alarm over the modern large combinations of capital, called “trusts," which have been at times stigmatized as “monopolies.” These large combinations of capital have revived the vague dread, felt in antique rudimentary times, of an oppression of the entire community by an excessive raising of the prices of merchandise at the hands of large capitalists. As matter of historical fact, even in early times, in both England and this country, notwithstanding the extremely imperfect development of the machinery of transportation which then existed, no substantial practical evil ever resulted from any attempt to merely raise prices, of labor or merchandise, on the part of either single individuals or combinations of individuals. Such attempts soon found their own levels, and their own limitations. But to-day, with our vast modern development of the science and machinery of transportation, when the markets of the whole world have largely become one, when a rise in the price of any kind of merchandise immediately causes an increase in supply, with a decrease in demand, and when the prospect of large profits invariably draws large amounts of fresh capital to paying investments, there is no longer any danger, from any attempt to enhance the prices of merchandise, whether by single individuals, or by individuals in combination, whether to single individuals, or to that combination of individuals which we term the community. Any atteinpt to raise the price of any article of merchandise immediately impels purchasers to curtail their consumption ; consequently it immediately curtails the demand ; and inevitably it soon brings a return to prices that are reasonable. Experience shows, in times recent as well as ancient, that any attempt to interfere by legislation, or by the arm of the law, with the citizen's full freedom of contract, in fixing the price of his own labor or merchandise, either singly or in combination with others, is wholly needless, and is productive only of evil.
This fact it is, which, in times past, both here and in England, has been the real cause of the virtual abandonment, until recently, of attempts to interfere with the freedom of contract, by the processes of law.
This same fact will-in time-put an end to the present series of such attempts.
Meantime, in view of the revival in this country of legislation of like character with the old English statutes, it becomes important to ascertain the precise condition of the law regulating such attempts, not merely for the purposes of practising lawyers, but for legislators, and students of political science.
In order to fully comprehend the law of to-day on this subject, it will be necessary to some extent to examine its previous history, through the different stages of its development, in England and in this country.
Before, however, beginning such an examination, it is well to call attention to one fundamental distinction. That distinction is the one which exists between private property and private employments, on the one hand, and a class of property and employments which are correctly termed public, on the other, although the title to that property be not vested in the state, and the employments be not those of ordinary public officials. Reference is here had, of course, to railroads, to all classes of public highways, and to all classes of common carriers, innkeepers, and the keepers of public resorts. From a very early period, the state has exercised control, in one form or another, over innkeepers and common carriers, from the necessities of the situation, without reference to any other fact than that their employments were quasi-public, and that state control, to some extent, was necessary for the full protection of the ordinary citizen. Such control did not rest on the fact that innkeepers and common carriers held any franchise, or any property, derived from the state, or, so far as my reading goes, from any fact other than those just stated. In later years, common carriers by steam and rail have found it necessary, in order to construct their roads, to use the right of eminent domain, with other special rights and privileges conferred by the state. This fact has furnished an additional reason, in their case, for holding that they are subject to state control, in the use of their rights, privileges, and property. But in cases where there is an entire absence of any grant, or franchise, or other property, directly conferred by the state, we still find that these properties and employments have for a long time been subject to some form of state control, by virtue of their public nature. Such common carriers are virtually public servants, occupying and operating the people's highways. For every reason, therefore, it becomes necessary that they should be subject to state control. The same reasons generally apply to telephone and telegraph companies, to gas and electric light companies, to ferry companies, to turnpike, plank road, and bridge companies, to the owners of elevators, to companies for owning and operating tramways, pipe lines for oil and gas, and waterworks. They are all public, in their nature and uses; and nearly all of them exist, and get their property, or part of it, by some form of grant from the state.
As to property and employments of this public nature the tendencies and growth of the law are in a precisely opposite direction from those which apply to ordinary private property and employments. In early times, the interests of these common carriers were of comparatively slight importance. In recent times they have increased to an enormous extent. The railroad employees alone in this country number upwards of a million of men. The number of individuals engaged in other employments of the same general nature is very large. Public control, of these properties and employments, has become a greater necessity than ever, in the face of their intimate connection at every point with the daily life of the community.
Public control, with these properties, has taken the form of control, both of the use of the properties, and of the prices of such use. Such control is a necessity. It is recognized as such by all competent judges. It has its legitimate province, and its legitimate limitations. It appears to be increasing, rather than decreasing. The reason is, that the public necessities demand such in-.
This distinction, between public and private properties and employments, will be found to be fundamental. It lies at the bottom of all sound legislation for the regulation of properties and employments of all kinds. Espe