Does Price Fixing Destroy Liberty?/Our Paramount Interest

by George Howard Earle, Jr.

CHAPTER VII.

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Our Paramount Interest.

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The Supreme Court has long since declared that Liberty is the greatest of all rights, and it has become so firmly established that in relation to property rights it constitutes the cornerstone of all constitutional protection.

The questions constantly asked: "Why Anglo-Saxon civilization has flourished so much longer than many of its predecessors, and whether it may be hoped that it will avoid the deadly fossilization or death of so many of its predecessors," may find their complete answer in maintaining the safeguards established for the preservation of individual rights under its forms of government. The determination of these present questions by the Supreme Court involves the greater issue whether the tendencies to decay are to be further averted or to be given full swing, with all their deadening effects.

Liberty, and Liberty alone, is the safeguard—the Liberty preserved through all these centuries. Well did the House of Lords say in the Nordenfelt Case:^[1] "The public have an interest in every person carrying on his trade freely; so has the individual. All interference with individual liberty of action, in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy." As widely as Chief Justice Fuller and Mr. Justice Harlan differed, they both concurred that it was unlawful "to deprive the public of the advantages which flow from free competition." And well did the Supreme Court say in Loewe vs. Lawlor:^[2] "At common law, every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction."

If it be asked why the Courts, for upward of five centuries, have been so continuously and constantly insisting upon the preservation of this Liberty, the answer must go deeper, but is no less clear.

Until what the English and American jurists had worked out instinctively was analyzed by philosophers, there was no satisfactory answer to the oft made inquiry: Why so many nations, having attained a high civilization from which a greater advance was to be expected, suddenly became stationary, or fell into decadence? Why was it that hordes of free barbarians had so frequently, and apparently with such ease, overthrown much better organized and higher forms of civilization? These questions were never satisfactorily answered until physiological truth was realized that as you cannot have complete health and continuing growth without freedom, so you cannot have moral, political and economic development without Liberty. Put mind, body, trade or government in too tight bonds and deterioration, if not death, is the inevitable consequence.

But, in civilization, this tendency always exists, because of the profound effects of Liberty and co-operation. Liberty makes men; co-operation makes enlargement of wealth. As the spider ultimately devours her mate after he has aided her in enlarging her progeny, so co-operation tends to make property the chief end of society instead of Liberty and equality. Where wealth accumulates, there is ever the tendency for men to decay; and so, as Thomas Jefferson has pointed out: "The natural order of things is for Liberty to yield and for Government to gain ground." And as the enforcement of order and the protection of ever accumulating wealth becomes the Government's chief end, Liberty is ever more and more forgotten or restricted. Man, placed in second place, less regarded, and more hampered in his free and independent development, loses character, strength, and ceases to exist as a power of force. All these price fixing regulations are putting him under the tutelage and protection of a host of Governmental servants employed and paid by him, with no other possible result than his complete enervation and inability to protect himself. He follows the course of the faineant Kings of France and, like them, perishes when he comes in conflict with men who have remained free.

It has been splendidly written:

"Here is the law of progress, which will explain all diversities, all advances, all halts, and retrogressions. Men tend to progress just as they come closer together, and by co-operation with each other increase the mental power that may be devoted to improvement, but just as conflict is provoked, or association develops inequality of condition and power, this tendency to progression is lessened, checked, and finally reversed. * * * In a general way, these obstacles to improvement may, in relation to the society itself, be classed as external and internal—the first operating with greater force in the earlier stages of civilization, the latter becoming more important in the later stages. * * * I mean, so to speak, that the garment of laws, customs, and political institutions, which each society weaves for itself, is constantly tending to become too tight as society develops. * * * Modern civilization owes its superiority to the growth of equality with the growth of association. * * * Civilization is co-operation. Union and liberty are its factors. The great extension of association—not alone in the growth of larger and denser communities, but in the increase of commerce and the manifold exchanges which knit each community together and link them with other though widely separate communities. * * * the advances in security of property and person, in individual liberty, and towards democratic government—advances, in short, towards the recognition of the equal rights to life, liberty, and the pursuit of happiness—it is these that make our modern civilization so much greater, so much higher, than any that has gone before. It is these that have * * * increased productive power by a thousand great inventions. * * * From first to last, slavery, like every other denial of the natural equality of men, has hampered and prevented progress. Just in proportion as slavery plays an important part in the social organization does improvement cease. That in the classical world slavery was so universal, is undoubtedly the reason why the mental activity * * * never hit on any of the great discoveries and inventions which distinguish modern civilization. No slave holding people ever were an inventive people. * * * To freedom alone is given the spell of power which summons the genii in whose keeping are the treasures of earth and the viewless forces of the air. * * * To turn a republican government into a despotism the basest and most brutal, it is not necessary formally to change the Constitution or abandon popular elections. It was centuries after Caesar before the absolute master of the Roman world pretended to rule other than by authority of a Senate that trembled before him. * * * We honor Liberty in name and in form. We set up her statutes and sound her praises. But we have not fully trusted her. And with our growth so grow her demands. She will have no half service! Liberty! It is a word to conjure with. We speak of liberty as one thing, and of virtue, wealth, knowledge, invention, national strength and national independence, as other things. But, of all of these, Liberty is the source, the mother, the necessary condition. She is to virtue what light is to color, to wealth what sunshine is to grain; to knowledge what eyes are to sight. She is the genius of invention, the brawn of national strength, the spirit of national independence. Where Liberty rises, there virtue grows, wealth increases, knowledge expands, invention multiplies human powers, and in strength and spirit the freer nation rises among her neighbors as Saul amid his brethren—taller and fairer. Where Liberty sinks, there virtue fades, wealth diminishes, knowledge is forgotten, invention ceases, and empires once mighty in arms and arts become a helpless prey to freer barbarians. Only in broken gleams and partial light has the sun of Liberty yet beamed among men, but all progress hath she called forth. Liberty came to a race of slaves crouching under Egyptian whips, and led them forth from the House of Bondage. She hardened them in the desert and made of them a race of conquerors. * * * Liberty dawned on the Phœnician coast, and ships passed the Pillars of Hercules to plow the unknown sea. She shed a partial light on Greece, and marble grew to shapes of ideal beauty, words became the instruments of subtlest thought, and against the scanty militia of free cities the countless hosts of the Great King broke like surges against a rock. She cast her beams on the four-acre farms of Italian husbandmen, and, born of her strength, a power came forth that conquered the world. They glinted from the shields of German warriors, and Augustus wept his legions. Out of the night that followed her eclipse, her slanting rays fell again on free cities, and a lost learning revived, modern civilization began, and a new world was unveiled; and as Liberty grew, so grew art, wealth, power, knowledge, and refinement. In the history of every nation we may read the same truth. It was the strength born of Magna Charta that won Crecy and Agincourt. It was the revival of Liberty from the despotism of the Tudors that glorified the Elizabethan Age. It was the spirit that brought a crowned tyrant to the block, that planted here the seed of a mighty tree. * * * We must follow her further; we must trust her fully. Either we must wholly accept her or she will not stay. It is not enough that men should vote; it is not enough that they should be theoretically equal before the law. They must have Liberty to avail themselves of the opportunities and means of life; they must stand on equal terms with reference to the bounty of nature. Either this, or Liberty withdraws her light! Either this, or darkness comes on, and the very forces that progress has evolved turn to powers that work destruction. This is the universal law. This is the lesson of the centuries. * * * But if, while there is yet time, we turn to Justice and obey her, if we trust Liberty and follow her, the dangers that now menace will turn to agencies of elevation."^[3]

At this moment the most stable Government in the world is our own, and it is solely because, in its real essence, it is the most free, in the only sense in which Freedom really exists; where men can act at their own free discretion, restrained only by the necessities of Justice. If the spirit of the Constitution is to be observed, that great instrument is always self-preserving. It needs only to be followed to be safeguarded. To the present time, the great fundamental principles which it buttresses have never been departed from. The wealth producing doctrines of free competition and an unhampered play of the law of supply and demand (as stated in the Patten case^[4]) have ever been adequately protected by the Supreme Court of the United States. That great tribunal, however difficult its task, has on the one hand defended men from the pernicious taxing power of monopoly, whilst, on the other, it has as certainly defended our citizens in their rights both freely "to pursue happiness," through all that is necessary to preserve untrammeled competition in commodities, and freedom from threat or danger of persecution. It has always shown a consciousness that excess profits are, of necessity, the result of excess needs, but their only permanent cure. Whilst Governmental necessity has unfortunately resulted in such profits being, in greater part, diverted to Governmental needs, and thus inevitably delaying the cure, it is mere folly to imagine that a complete prevention of this only effective restorative to business could be other than disastrous in the extreme. It must result in the development of all essential industries by our foreign competitors and by the destruction of our own productive enterprises unless the Government soon relinquishes or lessens its exactions. At the present moment we see all other Governments engaged in fostering the development of their competitive power, with the single exception of Russia; so that there has been no time in history when it could be more dangerous further to harass and penalize those of our citizens engaged in industry. We have already, particularly in the Public Service utilities, too many dangerous and disturbing factors. Unnecessarily to extend such dangers to the whole trade of the United States, and to enforce regulations difficult of application to the merchandising of commodities, under conditions that can never receive adequate judicial consideration, or be workable upon a business basis, must, inevitably, bring on financial depression with all its consequent ills. These causes have often proved the death of Liberty, not only in trade, but in the broader meaning.

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1. Nordenfelt vs. Maxim, 1894 A. C. 559. 1894.
2. Loewe vs. Lawlor, 208 U. S. 274. 1908.
3. Henry George, "Progress and Poverty," Book X, Chap. V.
4. United States vs. Patten, 226 U. S. 525 (see page 542). 1913.