THE OPEN MARKET
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power of individuals acting each according IX to his own preference and that of an or Underlying this refusal to justify the sort ganized and extensive combination may be of competition which is now under discus so great in its effect upon public and pri sion is the general public policy against vate interests as to cease to be simply one monopolization. It is opposed to present of degree and to reach the dignity of a ideals that a combination should be given difference in kind. Of the general proposi the power to use methods which will en tion that certain kinds of conduct not crimi able it to gain control of its market. It is nal in one individual may become criminal then explicable that the courts by a con if done by combination among several, there siderable majority have declared that a can be no doubt. The distinction is based combination cannot bring its organized on sound reason, for a combination may force to bear upon an individual rival so as make oppressive or dangerous that which to cut him off from his source of supplies. if it proceeded only from a single person When it is more or less true that any man •would be otherwise, and the very fact of may enter any business upon his merits, the combination may show that the object the perpetuation of the open market is as is simply to do harm, and not to exercise sured; but if the law left the situation alone one's own just rights." so that any man were subject to the risk of We have seen that the law as declared such unfair competition that none would by the majority of courts is to the effect dare to have dealings with him, the combina that when a combination exerts its force tions would in effect have a permanent hold upon outside dealers to prevent them from upon the industries. It- is in the fear of having any relations with rivals of the this that we have seen the enactment in combination, the rivals have an action for so many jurisdictions of anti-trust laws to the damages caused by the interference. settle the common-law discute once for all This law is by the majority of courts in favor of the industrial trader against the applied, as it seems consistently, when the dictation of the combination. For to the power of the combination is brought to bear majority of men an end of competitive con upon its own members to prevent them ditions in the ordinary businesses would seem from having any dealings with those out the final catastrophe beyond which there side the combination. The same elements could be nothing but the horror of anarchy of wrong exist whether the attack of the or the hopelessness of socialism. It is because conspirators upon their victim is indirect or of these perils to society that we are finding direct. And the key to the general problem to-day such agreement in the propriety under discussion seems to be this, that co- of regulation of the industrial situation by •ercion of the sort discussed here is tortious law. A very great change this is from the in itself, like fraud, and therefore, like fraud, doctrines of laissez faire of the early nine an unfair method to use in competition. teenth century to the principles of state And conspiracy will continue to be a wrong control in this early twentieth century. of which the law will take notice so long The interference of the law to protect against as is it true that an organized force has the encroachments of monopoly is welcomed the power to overwhelm unorganized indi now; the conservatives are few to-day who viduals. This principle of law that we cry out against such interposition of the bave under discussion has therefore this law as an interference with economic liberty. foundation of fact, that a concerted refusal For at last it is recognized that such police to deal disturbs the industrial order in a of the monopolies is necessary for the main •way in which an individual refusal never tenance of industrial freedom. CAMBRIDGE, MASS., March, 1905. can do.
