that combination of individuals which we term "the public" get any such right? When we speak of "rights" in these matters, we mean, of course, rights recognized by the law, well-defined legal rights, not vague general "public interests."

These positions, it will be found, bring us to a logical, reasonable, and just basis for the rule of the common law as to contracts of combination.

They will also be found to constitute the legal foundation on which rested the early English and American statutes, of which mention has here been made. Those early statutes, as has been shown, gave to individual citizens the legal right-to purchase labor, and to purchase merchandise, at specific statutory rates. To "inhance prices," therefore, raising them to a point beyond the statutory figure, violated a legal right.

If, however, no individual has the legal right to purchase at any figure other than that fixed by the will of the seller, then no individual suffers any legal wrong by any raising or maintaining of prices by the seller. That is the resulting legal situation, whatever be the figure fixed by the seller, whether it be reasonable or unreasonable. If, too, the would-be buyer suffers no legal wrong through the raising of prices by one man acting separately, he suffers none through the raising of prices by several men acting in concert. On the other hand, if the owner of labor, or of merchandise, has the legal right to sell or not to sell, at his own will, and to sell at his own price, he has the right to fix that price either separately or in concert with others.

But it will be said, that the effect on would-be buyers is different in case of the fixing of prices by several in concert, from the effect in the case of the fixing of prices separately by a single individual. Granted. The wouldbe buyer may be inconvenienced to a greater extent. He may be compelled to pay a higher price. But, unless he has the legal right to buy at a lower price, he suffers no legal wrong by being compelled to pay the higher price.

And mere loss, damage, or inconvenience, constitutes of itself no legal injury, whether it be caused by the act of one man separately, or by several men acting in concert.

The damage, in either case, comes only from the raising of prices. The legal injury, if there were one, would come only from the raising of prices. So that, in its legal aspect, in its capacity of working either damage or injury to any individual, there is no difference between the action of a single individual and of a combination. If the wouldbe buyer suffers no legal wrong from the one, he suffers none from the other.

It may be said, however, that every individual has the right, that all trade should have freedom, and that consequently he suffers a wrong, when several men combine to interfere with that freedom.

As to this, it is conceded, that some one suffers a legal wrong, when men combine to interfere with the freedom of others. But no other man suffers a legal wrong, when I simply put a bond on my own freedom. Bonds of that kind have been recognized as entirely lawful, under the English and American law, for centuries. Nothing that deserves to be called an authority can be cited to show that they have ever been held otherwise. The ordinary contract of hiring is such a bond, which interferes with a man's freedom, by preventing him for the time from joining in perfectly free competition in the field of labor. The ordinary contract of partnership is another such bond, which fetters a man's freedom, and prevents competition between the partners. There are cases without number where contracts which restrain the freedom of the parties contracting, which prevent competition between the parties contracting, have not only been held lawful, but have been affirmatively upheld by the courts, and even specifically enforced.

It is well at this point to consider some of those cases, with the legal grounds on which they have been decided. The case Diamond Match Co. v. Roeber(a) will first

(a) Diamond Match Co. v. Roeber, 106 N. Y. 473.

demand attention, being the most important of several recent cases in the New York Court of Appeals. That was a case in equity, wherein the plaintiff sought specific performance of a covenant by the defendant, whereby the defendant in a contract of sale to the plaintiff of the business of manufacturing and selling matches which defendant was carrying on in the State of New York, covenanted that he would not at any time thereafter within ninety-nine years engage in such manufacture or sale except in the service of the purchasing company "within any of the several states of the United States of America, or in the territories thereof, or within the District of Columbia, excepting and reserving, however, the right to manufacture and sell friction matches in the State of Nevada and the Territory of Montana." The point was raised that the covenant was void by reason of being in restraint of trade. The Court held, however, that the covenant was lawful, and sustained a decree for specific performance. The consideration of the law and the authorities was so full and so able, that it is advisable to quote from the opinion. The Court says:

"The defendant for his main defense relies upon the ancient doctrine of the common law first definitely declared, so far as I can discover, by Chief Justice Parker (Lord Macclesfield) in the leading case of Mitchel v. Reynolds (1 P. Williams, 181), and which has been repeated many times by judges in England and America, that a bond in general restraint of trade is void. There are several decisions in the English courts of an earlier date in which the question of the validity of contracts restraining the obligor from pursuing his occupation within a particular locality were considered. The cases are chronologically arranged and stated by Mr. Parsons in his work on Contracts (Vol. 2, p. 748, note). The earliest reported case, decided in the time of Henry V., was a suit on a bond given by the defendant, a dyer, not to use his craft within a certain city for the space of half a year. The judge before whom the case came indignantly denounced the plaintiff for procuring such a contract, and turned him out of court. This was followed by cases arising on contracts of a similar character, restraining the obligors from pursuing

their trade within a certain place for a certain time, which apparently presented the same question which had been decided in the dyer's case, but the courts sustained the contracts and gave judgment for the plaintiffs; and, before the case of Mitchel v. Reynolds, it had become settled that an obligation of this character, limited as to time and space, if reasonable under the circumstances and supported by a good consideration, was valid. The case in the Year Books went against all contracts in restraint of trade, whether limited or general. The other cases, prior to Mitchel v. Reynolds, sustained contracts for a particular restraint, upon special grounds, and by inference decided against the validity of general restraints. The case of Mitchel v. Reynolds was a case of partial restraint and the contract was sustained. It is worthy of notice that most, if not all, the English cases which assert the doctrine that all contracts in general restraint of trade are void, were cases where the contract before the court was limited or partial. The same is generally true of the American cases. The principal cases in this State are of that character, and in all of them the particular contract before the court was sustained (Nobles v. Bates, 7 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Dunlop v. Gregory, 10 N. Y. 241). In Alger v. Thacher (19 Pick. 51), the case was one of general restraint, and the court, construing the rule as inflexible that all contracts in general restraint of trade are void, gave judgment for the defendant. In Mitchel v. Reynolds the court, in assigning the reasons for the distinction between a contract in general restraint of trade, and one limited to a particular place, says, 'for the former of these must be void, being of no benefit to either party and only oppressive; and later on, because in a great many instances they can be of no use to the obligee, which holds in all cases of general restraint throughout England, for what does it signify to a tradesman in London what another does in Newcastle, and surely it would be unreasonable to fix a certain loss on one side without any benefit to the other.' He refers to other reasons, viz. The mischief which may arise (1) to the party, by the loss, by the obligor, of his livelihood and the subsistence of his family; and (2), to the public, by depriving it of a useful member and by enabling corporations to gain control of the trade of the kingdom. It is quite obvious that some of these reasons are much less forcible now than when Mitchel v. Reynolds was decided. Steam and electricity have, for the purpose of trade and commerce, almost annihilated distance, and the whole world is now a mart for the distribution of the products of indus

try. The great diffusion of wealth and the restless activity of mankind striving to better their condition, has greatly enlarged the field of human enterprise and created a vast number of new industries, which give scope to ingenuity and employment for capital and labor. The laws no longer favor the granting of exclusive privileges, and, to a great extent, business corporations are practically partnerships and may be organized by any persons who desire to unite their capital or skill in business, leaving a free field to all others who desire for the same or similar purposes to clothe themselves with a corporate char

The tendency of recent adjudications is marked in the direction of relaxing the rigor of the doctrine that all contracts in general restraint of trade are void irrespective of special circumstances. Indeed, it has of late been denied that a hard-and-fast rule of that kind has ever been the law of England (Rousillon v. Rousillon, 14 L. R., Ch. Div. 351). The law has, for centuries, permitted contracts in partial restraint of trade, when reasonable; and in Horner v. Graves (7 Bing. 735), Chief Justice Tindal considered a true test to be whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public.' When the restraint is general, but at the same time is co-extensive only with the interest to be protected, and with the benefit meant to be conferred, there seems to be no good reason why, as between the parties, the contract is not as reasonable as when the interest is partial and there is a corresponding partial restraint. And is there any real public interest which necessarily condemns the one and not the other? It is an encouragement to industry and to enterprise in building up a trade, that a man shall be allowed to sell the good will of the business and the fruits of his industry upon the best terms he can obtain. If his business extends over a continent, does public policy forbid his accompanying the sale with a stipulation for restraint co-extensive with the business which he sells? If such a contract is permitted, is the seller any more likely to become a burden on the public than a man who having built up a local trade only, sells it, binding himself not to carry it on in the locality? Are the opportunities for employment and for the exercise of useful talents so shut up and hemmed in that the public is likely to lose a useful member of society in the one case and not in the other Indeed, what public policy requires is often a vague and difficult inquiry. It is clear that public policy and the interests of society favor the utmost freedom of contract, within the law, and require