consideration. The necessary protection of the individual may, in such cases, be the proper measure of the reasonableness of the bargain. When Lord Justice Fry passes on to examine the question of the existence of the common law rule, he assumes, as it appears to me, without sufficient justification, that complete protection of the individual is the only reason which ought to lie at the root of the doctrine. But the reasonableness of the legal principle which forbids general restraint, altogether, is not the same thing as the reasonableness (as between the parties) of the bargain in any particular case, with regard to the argument that the rule, if it existed, would be an artificial one, and would therefore admit of no exceptions, the judgments of the judges and of the House of Lords in the case of Egerton v. Earl Brownlow,' illustrate, I submit, the distinction between a fixed rule of customary law and a rule based on reason and policy. The latter may admit of exceptions, although the former may not. Nor does the Lord Justice, to my mind, sufficiently allow for the weight of a multitude of decided cases when he states that there are 'undoubtedly cases in which it has been said that the restraint must not be universal,' and illustrates this by reference to Ward v. Byrne, Hinde v. Gray3 and Allsopp v. Wheatcroft. The entire history of the subject of restraint of trade proceeds surely on the basis of the existence of the rule in question. With Whittaker v. Howe5 I have already dealt. Jones v. Lees was, as I have pointed out, a case of partial restraint in respect of the mode of manu Egerton v. Brownlow, 4 H. L. Cas. 1. trine as to these covenants laid down in the earlier cases, but it has 2 Ward v. Byrne, 5 Mees. & W. been generally considered in the 548. 3 Hinde v. 123. later as well as in the earlier cases, * Gray, 1 Scott, N. R. that a covenant not to carry on a 4 Allsopp v. Wheatcroft, L. R. 15 Eq. 59. The question in this case is purely legal, viz.: as to the validity of the covenant in restraint of trade. There has been a natural inclination of the courts to bring within reasonable limits the doc 5 Whittaker v. Howe, 3 Beav. 383. 6 Jones v. Lees, 1 H. & N. 189. facture. I consider,' says Lord Justice Fry in conclusion, 'that the cases in which an unlimited prohibition has been spoken of as void, relate only to circumstances in which such a prohibition has been unreasonable.' Is it not a truer view that the courts have never, as a rule, even entered on the consideration of the circumstances of any particular case where the prohibition has been unlimited as to area? In Davies v. Davies1 opposite opinions on the subject of the common law rule were expressed by Lord Justice Cotton and by Lord Justice Fry; but the matter did not call for decision." The case to which the opinion relates is a cause celebre. In 1894 it went to the House of Lords and was affirmed.3 § 9. Sustained by Popular Sentiment.—The learned and able review of the progress of the doctrine in England, as above presented, is in harmony with the popular sentiment in that country as it has found expression in its legislative enactments. The repeal of the statute of Edward VI. has already been noticed, and also the circumstance that the common law was not materially changed. But by a statute of the 7th & 8th of Victoria the common law was modified by the abolishing of the offenses of "badgering, 1 Davies v. Davies, L. R. 36 Ch. D. 359. 2 Maxim-Nordenfeldt v. Nordenfeldt, L. R. (1893) 1 Ch. 630, 651. 3 Nordenfeldt v. Maxim-Nordenfeldt Co., L. R. (1894) App. Cas. 535, at page 555, Lord Watson observes: "When the series of cases from the earliest to the present time are carefully considered, I think they will be found to record the history of a protracted struggle between the principle of common honesty in private transactions on the one hand, and the stern rule which forbade all restraints of trade on the other. In my opinion it does not admit of dispute that the ancient rule has had the worst of the encounter, and has been gradually losing ground in all the courts. I do not think that, between the courts of common law and equity, there has been much, if any, real difference of opinion. But I am bound to say that the language used by equity judges is on the whole more in consonance with the commercial policy of the country than some of the favorite dicta of the common law courts. I purposely say some of the dicta, because I find in the opinions of many common law judges of the highest eminence a clear and liberal recognition of the wider views of policy which have influenced your Lordships in the decision of this appeal." engrossing, forestalling and regrating." By later statutes there was an enlargement of "the power of combination between workmen and workmen, and between master and master, for the purpose of maintaining and enforcing their respective interests and to remove the objection of being in restraint of trade, to which some of such combinations had been obnoxious."'2 A § 10. The American Doctrine. The law on this subject, as established and administered in England, is accepted in this country only in a general sense. As a rule it may be said that in the consideration of the legality of a combination or covenant in restraint of trade, the decision will turn upon the reasonableness of the restraint. court of equity will inquire, not whether the restraint extends to an entire State or to the nation, but whether it is a reasonable and proper protection of the party in whose favor the covenant is made, and whether it is prejudicial to the public interest. At present there is a strong tendency to the restricting of the right of restraint. This appears from the latest decisions in equity and from recent legislative enactments. In 1890 an anti-trust act was passed by the national legislature, and in most of the States anti-trust statutes have recently been enacted. In many of these enactments the penalty affixed to a violation of a statute is very severe, and in some instances an attempt to control the price of any commodity or to limit its production is made a criminal conspiracy. The Federal statute makes all contracts, combinations or conspiracies in restraint of trade or commerce between the States, or with foreign nations, and, as well, every attempt to monopolize any part of such trade or commerce a crime. The following extract from the opinion of Mr. Justice Peckham, of the United States Supreme Court, in the case of the United States v. The Trans-Missouri Freight Association, recently decided, is of interest as an indication of the trend 17 & 8 Vict., chap. XXIV. 2 Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. Div. 598, 629, 630. See 34 & 35 Vict., chaps. 31 and 39, and 40 Vict., chap. 22. and scope of legal opinion in this country at the present time: "It is true the results of trusts or combinations of that nature may be different in different kinds of corporations, and yet they all have an essential similarity and have been induced by motives of individual or corporate aggrandizement as against the public interest. In business or trading combinations they may even temporarily, or, perhaps, permanently, reduce the price of the article traded in or manufactured, by reducing the expense inseparable from the running of many different companies for the same purpose. Trade or commerce under those circumstances may, nevertheless, be badly and unfortunately restrained by driving out of business the small dealers and worthy men whose lives have been spent therein and who might be unable to readjust themselves to their altered surroundings. 'Mere reduction in the price of the commodity dealt in might be dearly paid for by the ruin of such a class and the absorption of control over one commodity by an all powerful combination of capital. In any great and extended change in the manner or method of doing business it seems to be an inevitable necessity that distress, and, perhaps, ruin, shall be its accompaniment, in regard to some of those who were engaged in the old methods. A change from stage coaches and canal boats to railroads threw at once a large number of men out of employment. Changes from hand labor to that of machinery, and from operating machinery by hand to the application of steam for such purpose, leave behind them, for the time, a number of men who must seek other avenues of livelihood. These are misfortunes which seem to be the necessary accompaniment of all great industrial changes. It takes time to effect a readjustment of industrial life so that those who are thrown out of their old employment by reason of such changes as we have spoken of may find opportunities for labor in other departments than those to which they have been accustomed. It is a misfortune, but yet in such cases it seems to be the inevitable accompaniment of change and improvement. It is wholly different, however, when such changes are effected by combinations of capital, whose purpose in combining is to control the production or manufacture of any particular article in the market, and by such control dictate the price at which the article shall be sold,-the effect being to drive out of business all the small dealers in the commodity, and to render the public subject to the decision of the combination as to what price shall be paid for the article. In this light it is not material that the price of an article may be lowered. It is in the power of the combination to raise it, and the result, in any event, is unfortunate for the country, by depriving it of the services of a large number of small but independent dealers, who were familiar with the business, and who had spent their lives in it, and who supported themselves and their families from the small profits realized therein. Whether they be able to find other avenues to earn their livelihood is not so material, because it is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in,-having no voice in shaping the business policy of the company and bound to obey orders issued by others. Nor is it for the substantial interests of the country that any one commodity should be within the sole power and subject to the sole will of one powerful combination of capital. Congress has, so far as its jurisdiction extends, prohibited all contracts or combinations in the form of trusts entered into for the purpose of restraining trade and commerce. The results naturally flowing from a contract or combination in restraint of trade or commerce, when entered into by a manufacturing or trading company, such as above stated, while differing somewhat from those which may follow, a contract to keep up transportation rates by railroads are, nevertheless, of the same nature and kind, and the contracts themselves do not so far differ in their nature that they may not all be treated alike and be condemned in common. It is entirely appropriate, generally, |