but in contradiction to, the principles of the Common Law and of established political economy. Such attempts at price fixing, from their very nature, could not permanently succeed, and only tended to confusion and a resulting increase of prices through the accompanying increase of risk and uncertainty.
That the Harvester case is right, the Lever Act wrong, if it is to be so interpreted, seems of the easiest test.
Men may, of course, be indicted if (as Justice Holmes says in the Nash Case) "in many instances," they do not use the ordinary reasoning of the average man; to punish them for not having higher powers would be pure despotism.
Now, the Lever Act, if anything, is an act to punish, not for mistake, but for inordinate greed; not for taking precautions against risk, where uncertainty abounds; but for doing what the supposed "reasonable man" must beyond any reasonable doubt know was not necessary to meet all contingencies.
But, if the average reasonable man had power to do this, all ordinary men must be enormously rich, for guessing being no longer necessary, men need not limit their wealth except by their wishes. So that the Act would require criminal punishment for not having extraordinary powers! It would be by legislation, an attempt to do the impossible, and by edict to turn mere surmise into mathematical deduction, and necessary speculation into deliberate crime! But, as statisticians generally agree that but one man who attempts business out of each ten, succeeds, that would be to declare a thing only guessed at, proven beyond reasonable doubt, in the face of the fact that the chances of the guess being right is "only one in ten."
And when that does occur to any large degree, it
