eral condition. But to attempt this by national laws under a constitutional amend ment would be a great mistake. There is a question so closely related to that of the labor combinations, both in reason and in law, that it seems unwise to close this general view without a few words about it. The subject of trusts, or com binations of capital, presents many of the same social questions, and almost identi cally the same legal points, as that of tradesunions and boycotts. Under the favorite maxim of the labor agitator that labor is not a commodity, it is true that the statutes and doctrines relating to the monopoly of an article of necessity do not apply; but both the Interstate Commerce Act and the Anti-Trust Act are statutes which have greatly confused this distinction; and it is very difficult, under both of them, not to treat labor combinations, and capital or trade combinations, by the same test. Moreover, the right to labor and sell one's labor is one of the quasi-natural rights, secured as well by most of the State constitutions, under the interpretation given by courts to the meaning of the word " property," as by the federal constitution and its fifth and four teenth amendments; but there have been, at least in the State courts, two distinct ten dencies, evidently reflected from popular sentiment; one which tends to allow, and rec ognize as lawful, combinations among labor ing men to sell their services; and another which even without statute has tended to re strict similar combinations of capital, or pro ducers, as in restraint of trade. The two streams have scarcely met as yet in any court except those of Illinois, where a re cent case very precisely shows their junction, and decides a labor combination of stenog raphers to be illegal upon strict common law grounds of restraint of trade; 1 and we are familiar with the universal effort through out the country to pass anti-trust statutes of the most drastic nature, which shall apply 1 More v. Bennett, 29. N. E. Rep. 888.
only to capital or combinations of producers, and frequently even make an exception of capitalists of certain commodities, such as farm produce. It is a matter of common knowledge that these statutes, where not held unconstitutional, have been generally fruitless, except in so far as they have reenacted the common law doctrine of re straints of trade. The recent decision of the United States Supreme Court in the rail way association case is almost the first which has sustained them in any forcible form, and this decision evoked much criticism from leading members of the bar. My belief is that, constitutionally and eco nomically, analogous rules do apply, and must and should apply, both in the case of labor and in that of capital; and from the attitude we have taken on the labor question, necessarily results the position one should assume on that of trusts or combinations of capitalists. Just as a simple strike, i. e. a refusal to work for less than a certain amount, is lawful, though concerted, and though attended with injury to the employer or other individuals, so a simple agreement to maintain the price of a certain commodity at a certain figure should be perfectly law ful, as it is consonant with common sense and the daily course of business of all com mercial life. The efforts of statutes to for bid such agreements, and of courts to en force such prohibitions even by criminal process, are childish and will, in the long run, prove vain. For a number of producers to agree that they will sell their product at a definite schedule of prices is not only not in restraint of trade, but an encourage ment of it, and has the justification of all the history of the English guilds and com panies behind it. If it is impossible for two hundred manufacturers to fix a price for their goods, it is impossible for two; and by the same argument it should be impossible for railroads or theaters or newspapers or insurance companies to do the same. A published schedule of rates results in fairness
