by George Howard Earle, Jr.

“ There was, therefore, an inherent and inevitable conflict between these two phases of man's liberty: the liberty to bind himself, that is, to contract, and the liberty to remain unbound —the right to contract pro tanto and of necessity destroying the other right. This balance being even—liberty against liberty—public policy had to control the issue; and trade, being of vital interest to the public, the contractor was permitted to choose his freedom to contract wherever such choice advanced trade. ”

“ The public have an interest in every person 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. ”

“ But a second and greater difficulty lies in the fact that, driven just as the common law judges were by the real reason and sense of the thing the courts are one by one allowing all these alleged exceptions to a professedly universal rule, and thus making both the rule and the exceptions uncertain to those who do not inquire deeply. ”