Charles Fisk Beach, Jr.

“ Perhaps everyone of these statutes—including the federal act of July 2, 1890, known as the Sherman Law—is open fairly and honestly to the same criticism, viz., that they seek to crystallize into statutes doctrines of public policy which are obsolete or obsolescent, if not wholly outgrown and outworn. Nothing, as was suggested above, is easier than to generalize in a sweeping fashion about the evils of monopoly and the blessings of competition. ”

“ In a legal sense, monopoly at the present day simply means the obtaining, without a grant from the sovereign, of the exclusive power to carry on a certain trade or business. In a proper sense, the term monopoly is applied to every large and successful business enterprise; and some statutes, as, for example, the proposed legislation in Illinois against department stores, go so far as to seem to proceed upon the notion that, because an enterprise has attained large proportions, it is, in a legal sense, a monopoly—ergo, unlawful. ”

“ The public have an interest in every person's carrying on his trade freely; so has the individual. All interference with individual liberty of action in trading and all restraints of trade of themselves, if there is nothing more, are contrary to public policy and, therefore, void. That is the general rule. ”

“ While non-commercial wagers of every sort have, in the process of time, become illegal, and are now so declared by statute in perhaps every civilized community, it is another curious illustration of the way in which freedom of trade asserts itself in these days that, pari passu with the decline in respect of legal sanction of mere wagers, dealings in futures which are of course a form of wager, have become more and more legal and are now substantially lawful in all enlightened communities. ”

“ For all practical purposes, whether those of the student, the legislator or the lawyer, restraint of trade and prevention of competition in trade are substantially equivalent, and are governed by the same principles. To what extent, if at all, trade ought to be restrained, or competition prevented by statute, or may lawfully be restrained or prevented by contract, involves, at bottom, elementary questions of public policy. ”

“ A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. The course of policy pursued by any country in relation to and for promoting the interests of its commerce must, as time advances and its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts. ”

“ When one begins to talk or think about "public policy," by which the economic soundness of all legislation of this sort is to be measured, he is confronted at the outset with the fact that it is a very vague and variable, or, as mathematicians say, a very unassignable quantity. ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ Upon the most casual examination of the law books we instantly discover that cases declaring a rule of public policy in one year of grace are of very little or no value as authority in ascertaining what is the true rule on the particular subject in another and later year. ”

“ Excessive competition is not now accepted as necessarily conducive to the public good. The fact is, that the early common law doctrine in regard to contracts in restraint of trade largely grew out of a state of society and of business which has ceased to exist, and hence the doctrine has been much modified, as will be seen by comparison of the early English cases with modern decisions both English and American. ”

“ Excessive competition may sometimes result in actual injury to the public and competitive contracts to avert personal ruin may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable and are condemned as against public policy. ”

“ All trades, said the court, as well mechanical as otherwise, which prevent idleness (the bane of the commonwealth) , exercising men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and, therefore, the grant to the plaintiff to have the sole making of them is against the common law, and the benefit and liberty of the subject. ”

“ While thus larger and larger commercial freedom has been attained in the progress of time, as public policy has adapted itself to more modern conditions, it is curious to notice how, in some other directions and along some other closely parallel lines, the pendulum has swung the other way. Commercial contracts in restraint of trade have for one hundred and fifty years grown steadily in public favor, and have constantly secured greater and greater sanction in the courts, whilein certain otheranalogous matters the reins have essentially tightened up. ”

“ By reference to the law books, he is informed with sweeping generality, that at common law monopolies are illegal and void. If he be industrious and curious, and reads Norman French, he finds out that, as early as the reign of Henry V, in the year 1415, a case, which seems to have been the first case of the sort, arose, in which a dyer had bound himself not to exercise his trade for half a year in the same town with the plaintiff. In an action on the bond, this was held to be an unlawful agreement, as in restraint of trade. ”

“ That shows, therefore, that the rule which the learned judge, whose opinion is now before the House, thought depended upon some rule of common law, regardless of policy, was founded upon public policy, and has been restrained and limited and qualified up to this very hour, and beneficially so, by that very policy which it is supposed had no bearing at all upon the foundation of the rule. ”

“ Serious men, and able and conscientious lawyers, have gravely argued in the United States, within the past ten years, to courts of justice, in cases involving the legality of modern commercial trusts, along precisely this line, and have seemed not to understand that the case of "The Monopolies" and other cases of the same sort, are no more valuable as authority or available in argument in the nineteenth century, upon the question of the legality of our commercial trusts, than if cited in a contention over the Monroe Doctrine. ”

“ Lord Mansfield during the reign of George III, presided at a trial and charged a jury, with becoming gravity, upon the astonishing question, which had been the subject of a wager between the parties to the suit, whether a third person, who wore the clothes and bore the name of a man, was a male or a female. The jury found that it was a woman. ”

“ It is a significant fact that during the same period of time when our legislatures, including the federal congress, have been going off upon a quasi-mediæval tangent, the courts have for the most part been unswerved, and have in no notable instance been carried off their feet by the popular clamor. ”

“ It was an obligation with a condition that if a man did not exercise his craft of a dyer, within a certain town, that is, where he carried on his business, for six months, then the obligation was to be void, and it was averred that he had used his art there within the time limited, upon which Mr. ”