when the Act used exactly the same terms the Common Law had so continually defined, that so many have simply taken it for granted that it meant exactly the opposite; and thus destroyed the freedom of men to trade in open competition. That for the first time in all history, men were to be punished for following the guidance of the Courts, no other regulation for their conduct being even substituted.
How could it be possible for a learned Judge, in a suit for damages brought for the non-delivery of goods under a contract, to tell a jury that a just, proper and reasonable price as a measure of damages was the price fixed in an open and competitive market (called by our judges "the market price"); and in a criminal indictment for exactly the same transaction instruct it that the same thing was ample evidence upon which it, beyond a reasonable doubt, could convict for a "crime" committed within the Lever Act.
Certainly, heretofore, an unjust and unreasonable price has always been a price arbitrarily fixed other than by free trading, whether by Government or other freedom-destroying method. Is not the question as to how such a violent change is supposed to have taken place by a mere use of the words always used with this established meaning,—as Lord Dundreary would say, "one of those things no fellow can find out"? It certainly is not allowable by any judicial methods heretofore prevailing.
The language of Mr. Chief Justice White in the Wilder case,[1] exactly covers the ordinarily assumed meaning: "In the first place," he says, "the contention cannot be sustained consistently with reason. It overthrows the general law. * * * In the second
- ↑ Wilder Mfg. Co. vs. Corn Products Refining Co., 236 U. S. 165 (see page 173). 1915.
