Page:Earle, Does Price Fixing Destroy Liberty, 1920, 083.jpg

Rh judged by past instances forming a common experience. It certainly did not mean, as has been said, that where a man was indicted for manslaughter for driving recklessly through a crowded street, he could be convicted upon guesses by the jury as to whether he was even there. It cannot possibly be argued that because matters are left to juries in cases where from experience they are the best judges,—where all essential facts to be placed before them are known,—that necessarily it follows they are to be permitted for the first time to guess men into jail in cases where the facts are not known or cannot be ascertained. To argue that because, in many instances "common experience" enables men to make reasonable findings, men should be permitted to find where "common experience" has demonstrated their inability to do so, needs no reply.

In the Harvester case the indictment was for the enhancement above real value and at a price in excess of real value; and, to give this some color of reasonableness, the real value was declared to be "its market value under fair competition and under normal market conditions"; but, as Mr. Justice Holmes ably says: "We have to consider whether in application this is more than an illusory form of words, when, nine years after it was incorporated, a combination invited by the law is required to guess at its peril what its product would have sold for, if the combination had not existed, and nothing else violently affecting values had occurred. * * *  Value is the effect in exchange of the relative social desires for compared objects expressed in terms of a common denominator.  It is a fact and generally is more or less easy to ascertain.  But what it would