Page:Earle, Does Price Fixing Destroy Liberty, 1920, 138.jpg

138 As has been pointed out, no one can tell what taxes may be levied; no one can tell what the risks of business may be; no one can tell what the replacement cost may total; every one that enters business has to guess at these and a thousand other factors—and nine men out of ten in the long run guess at them incorrectly,—to their ruin.

Of course, the learned Judge would be right had the Weed case fallen within the principle of the Nash case; but the Supreme Court has, again and again, so plainly marked the distinction between it and the Harvester, Collins and Pennsylvania Railroad Cases, which have been discussed, that it is perplexing to understand why there should be any conflict or difficulty in arriving at the one correct result. To repeat, again, where all the facts and circumstances are known, ordinarily intelligent men can reasonably and lawfully make deductions from them. With a preponderance of evidence, men can find only from their common experience whether they have exercised the care of reasonable men, or whether they have compiled with certain duties, even where they have intended the natural consequences of their acts. But the cases where these fundamental rules of conduct have been laid down deal generally with Common Law wrongs. When, however, it comes to dealing with property and exercising the property rights appertaining to freemen, there has been built up and safeguarded an absolutely different system. It has become fundamental that men should compete with each other and with an absolute and untrammeled freedom of discretion, and it is not only the best