Page:Earle, Does Price Fixing Destroy Liberty, 1920, 089.jpg

Rh Lord Justice Fry: "To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts." Lord MacNaghten concurred in the decision, and finally Lord Morris says: "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.  The question of 'fairness' would be relegated to the idiosyncrasies of individual judges." And Lord Field concurred upon the grounds stated by Lord Justices Bowen and Fry, Lord Hannen also concurring.

For the Supreme Court, therefore, to abandon the position so clearly taken by it, that trade cannot be made free by tying up traders by a requirement that they should conduct their business under the threat of a criminal punishment if they did not successfully do what all these Judges, both American and English, have determined was beyond their power, would be a violation of both the Fifth and Sixth Amendments of the Constitution of the United States, and would, by destroying the one sure remedy for high prices—that is free competition—effectively tend to make them permanent.