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RECENT decisions of our highest legal tribunals, especially the United States Supreme Court and the New York Court of Appeals, holding that a mere combination of common carriers, or of private property owners, providing for the fixing of rates and prices for their own property, by one common authority for all, constitutes a crime, are, in my opinion, so far at variance with the tendencies and growth of English and American law, and are so hopelessly in conflict with the fundamental principles of the law of property under a modern constitutional government, that an unusual degree of interest attaches at the present time to an examination of the law applicable to such combinations.
It will be found that much light will be thrown on the questions involved, by a short review of the history of the English and American law relating to state control of trade and commerce. Careful investigation will show, that the recent statutes under which the decisions alluded to have been made, are not novelties; that they are merely revivals of old attempts to protect the community -by statute-against dangers of the imagination ; and
:. we shall find the strongest reason for believing that here again history will repeat itself, and that the legislation and judicial interpretation of the present will follow the same course with the legislation and judicial interpretation of the past.
The rudimentary stages of the growth of the English law abounded in attempts to restrict and control trade and commerce by statute. Those attempts took various forms. The most frequent consisted in the passage of statutes regulating prices, of labor and merchandise. Other statutes, as to trade and commerce of specific classes, were completely prohibitory. Such were the statutes prohibiting the export of gold and silver, of wheat and other grains, of wool, of tools and machinery; and forbidding the departure of artificers from the kingdom to work in foreign countries. Violations of these statutes were made crimes, and were punishable by fine and imprisonment.
One class of these statutes, while not fixing specific prices, for specific classes of merchandise, endeavored to prevent any attempts to raise prices, whether by single individuals, or by combinations of individuals.
" Engrossing," as it was termed in the old statutes, which consisted only in buying and holding in quantity, with a view to a subsequent sale at an advance in pricethe object of nearly all wholesale buying-—was made a crime ; whether on the part of a single individual, or of individuals in combination, was immaterial. The old English statutes on this branch of the law, if they had been enforced, would have abolished the occupation of wholesale merchant or middleman, and would have virtually compelled every producer to be his own salesman. Trade and commerce, as they exist to-day, and as they necessarily must exist to supply the needs of any large community, would have been made impossible.
In connection with the statutes of the classes already mentioned are to be considered statutes against conspiracies, or combinations, to raise prices, of both labor and merchandise. The earliest of these was the Statute 2 & 3 Edw. VI., c. 15, which made it a crime, for certain classes of tradesmen to combine to raise the prices of the commodities in which they dealt, or for workmen to combine to raise the prices, or limit the hours, of their labor. These statutes were part of the general scheme of state control, of labor, trade, and commerce.
In time all these attempts to control prices and labor were abandoned. From the earliest date, the re
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 de. preciation 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 ignored.
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-putan 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 pur