George Howard Earle, Jr.

“ To avoid confusion, it must be borne in mind that the "market price" is an ever-varying one, being determined only be a free market, where each one is entitled, as a freeman, to offer what he pleases or to sell on terms satisfactory to himself. In other words, that it is the price constantly and ever being fixed, and thus meeting every variation and contingency necessary to be faced by men exercising the freedom of a democracy, instead of the bondage of communistic government. ”

“ It cannot be believed that the Courts will ever permit that those, upon whose success and prosperity the revenues and welfare of the nation must depend, should be subjected to treatment that no court of justice would for a moment, permit to be inflicted upon itself under like circumstances,—the vital principle, of course, governing all such cases is that the State cannot force the duty of judgment upon those whose minds it shackles with the fears of danger and with threats of harm. ”

“ The Government makes no provision whatever to instruct those engaged in business as to what they are or are not to charge for their commodities. Indeed it, in fact, constitutes the dealers the governmental agents to determine the proper price for commodities both for themselves, and for the public, with its adverse interest, despite the fact that such dealers have not only a continuing interest, but, very often, a trust duty to others, to make the business that they are transacting as successful as possible. ”

“ Indeed, upon general principles of jurisprudence, has it not always been the law that men, forced to reach conclusions, must be kept free from even the possibility of civil, much less criminal liability, for error in the conclusions that they may reach? ”

“ For the law positively to declare that "no man can serve two masters," and then not only to force him to do so, but put him in prison because he has not done so satisfactorily, and to pass judgment upon him by the verdict of a body of men also, subject to the disabilities of personal interest,—cannot be a portion of our splendid system of justice, buttressed by the Constitution and always safeguarded by Judges whose highest duty is its preservation.
But men cannot be punished for their ordinary human limitations. That the Harvester case fully determines. ”

“ As the Nash [25] and Harvester [26] cases show, such is not the law. That which can be measured by reasonable men, with ordinary daily experience, and upon proper evidence, can be and must be so measured "in many instances," as Mr. Justice Holmes terms it in the Nash case; that which all men know can, in vital particulars, at best be the subject only of surmise, speculation, or guess, cannot be made the basis of any juridicial decision; much less could it be the basis of a verdict at the time of decision known beyond all or "any reasonable doubt." ”

“ Grave error is made in assuming that it is ever a fixed price. It is every varying to meet all influences, and is simply the last price made in a free market. It is in reality, the price of freedom!
Another preliminary consideration must not be lost sight of, and it is that, as every one wants to buy at the lowest prices, and sell at the highest, there is always a perplexing political agitation going on to secure state aid either to boost or reduce prices by governmental action. ”

“ It does seem strange that to enforce freedom of trade, of action, the law should punish those who make a perfectly honest agreement with a belief that it is fairly required for their protection"; and ends by quoting Lord Justice Fry: "To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts." ”

“ Nothing is to be left to mere surmise. Even in civil cases the jury will not be permitted to make a finding, where any essential fact is left to guess work. If it be proven that a man drove a car through a crowded street at one hundred miles an hour, it is perfectly reasonable for a jury to find that a reasonable man would not so act,—that there was a violation of ordinary care and public duty. ”

“ The problem that is now to be dealt with is whether, there being a market price determined through the "higgling of the market," there is the requisite data available to business men upon which, beyond any reasonable doubt, they can, as business men, determine just what deviation from such market price they should make to satisfy any judge and any jury that they had not acted criminally. In other words, to ascertain what any chance twelve men might think a proper variance from the "Market Price"—which is, of course, the recorded judgment of all the rest of the world. ”

“ I will only add in conclusion, that the situation confronting Congress was a difficult one at best. To fix profits definitely and arbitrarily, without reference to place or circumstance, would prove unjust and oppressive in the extreme, for it is matter of common knowledge that what would be deemed a just and reasonable profit in one place or as to one commodity would be unjust and unreasonable in another place or as to a different commodity. ”

“ I myself should deem it to be a misfortune if we were to attempt to prescribe to the business world how honest and peaceable trade was to be carried on in a case where no such illegal elements as I have mentioned exist, or were to adopt some standard of judicial 'reasonableness' or of 'normal' prices or 'fair freights,' to which commercial adventurers, otherwise innocent, were bound to conform. ”

“ There is not a line to be found in these cases under the Act to show the slightest recognition of the definitely established truth, that high prices always have been, and always will be, the forerunner of low prices; that freemen in a free market, with its inducements to gain the higher rewards, strive, invent and compete, so that every temporary rise in price insures not merely a return to the old price, but to a lower one, and finally to the fair and equitable exchange of all commodities, measured by the labor relatively involved. ”

“ It has established the doctrine that the way to obtain large home supplies is to prevent the workings of sound economic law to further enlarging home production, and thus secure independence, and an average of low prices; whilst, at the same time, our foreign competitors, under the law of freedom, are gaining the power to still further control our markets. It has established that a power existing only for self-protection, can contrary to the Constitution, be turned into a power for the destruction of industries. ”

“ No Court even notices the different burden of proof in quasi-monopolistic enterprises, and where the free exchange of commodities is involved; not a single one notices the established truth that continuing trade is but composed of repeated cycles of barter, of repeated exchanges of goods for goods, in which money but aids the revolution, and is in no case the substance of either step ”

“ This always results in agitations most dangerous to our institutions, and in favor of majorities, seeking their ends through unjust and arbitrary power, as by inflating the currency, or penalizing those who use their inalienable right "to pursue their own happiness," obeying the law,—that is, of course, the Constitutional Law,—in an exercise of their own free discretion. ”

“ If men can be "guessed" out of Life, Liberty and Property, they will but live under a tyrannical despotism,—certainly not under the constitutional protections of a free country. Should the contrary of the Harvester decision ever be established in our land, it could not be for long, for economic reasons would make it impossible ”

“ As will be shown later, political economists agree that where the rise of commodities is general, it but indicates a depreciation in the value of money,—I mean its real value,—that is, the amount of other commodities into which it can be converted. Judge Rudkin, in the Spokane case, notwithstanding his indignation at profiteering, observes that it is the people's own fault if they go to high-price stores, where there is not a general rise—that in such cases there is no occasion for relief. ”

“ I cannot see why judges should be considered specially gifted with prescience of what may hamper or what may increase trade, or of what is to be the test of adequate renumeration. In these days of instant communication with almost all parts of the world, competition is the life of the trade, and I am not aware of any stage of competition called 'fair' intermediate between lawful and unlawful. ”

“ For, hereafter, they must know in advance, even in periods of extraordinary governmental extravagance just what are to be governmental exactions; in times of exaggerated uncertainty they must measure even beyond any reasonable doubt the fluctuations and future inflation of the currency, the future result of future years,—how much and when inflated prices will collapse, to what degree "replacement" must and will take place, the varying efficiency of labor, all changes in costs, in interest, in freight rates, and every other item involved in doing business ”

“ It would be as extreme to maintain that a jury, a judge, or any extra-judicial body should be held to the strict accountability of absolute accuracy in all of their conclusions. It is not proper for the Act to make the dealer the judge as to when prices are reasonable, fair and not excessive, and then to punish him for error in the judgments at which he arrives. ”

“ The crux of the matter lies largely in that very principle upon which the writer has sought to lay the greatest emphasis, and it is that the law should not require of a man the performance of a duty which by reason of the uncertainties of its conditions, the infallibility of human understanding, and the ever present elements of bias and self-interest, it is not possible for him to discharge with absolute precision, and then to punish him for errors which unwittingly he might make. ”

“ The common experience as to ordinary commodities has been through competition in a fair market, for all other methods have not merely been tried but have always failed. It needs no argument beyond the mere statement, therefore, that Justice Holmes, in saying that "the law is full of instances" meant either by "full" that there were no exceptions, or that he expressly confined these cases to those where the circumstances, without limitation, were known and could be judged by past instances forming a common experience. ”

“ Every Political Economist knows that—except under monopolistic conditions—Freedom herself not only brings relief, meting out a proper punishment, if any punishment be deserved, but brings the only relief that, throughout the centuries, has ever proved effective. Chains and penalties but enhance prices to give the necessary inducement to face ignominy and danger. ”

“ But if it were proven only that some person had so done, without proper evidence that it was the defendant, or if any of the essential facts necessary to establish the offense were lacking, no jury would be allowed by the Court to guess it out. Justice Holmes undoubtedly had this thought in mind when he said, in the Nash case: [30] "The law is full of instances where a man's fate depends on his estimating rightly that is, as the jury subsequently estimates it, some matter of degree. ”

“ Of course, under the Lever Act, a man with a large business might, for errors of judgment resulting from being forced to decide matters that the law has always insisted he cannot be expected to decide properly, suffer endless imprisonment and fines impossible of payment. ”

“ To compel them to guess on peril of indictment what the community would have given for them if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers, is to exact gifts that mankind does not possess. ”

“ In commodity cases, where prices, of necessity, vary from minute to minute, the decision of one day must be totally inadequate for the next day's prices; and, as there is nothing in the Act by which anyone can obtain relief until after he has acted, at his peril, it is impossible to see how one can have proper constitutional protection under its provisions. ”