592
THE GREEN BAG
"The very statement of the rule implies that the contract must be one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary. The covenant is inserted only to protect one of the parties from the injury which, in the execution of the con tract or enjoyment of its fruits, he may suffer from the unrestrained competition of the other. . . . But where the sole object of both parties in making the contract as expressed therein is merely to restrain competition and enhance or maintain prices, it would seem that there was nothing to justify or excuse the restraint, that it would necessarily have a tendency to monopolize and therefore would be void. In such a case there is no measure of what is neces sary to the protection of either party except the vague and varying opinion of judges as to how much, on principles of political economy, men ought to be allowed to restrain competition. There is in such contracts no main lawful purpose, to sub serve which partial restraint is permitted, and by which its reasonableness is meas ured, but the sole object is to restrain trade in order to avoid the competition which it has always been the policy of the common law to foster." He says further: "It is true that there are some cases "in which the Courts, mistaking, as we con ceive, the proper limits of the relaxation of the rules for determining the unreasonable ness of restraints of trade, have set sail on a sea of doubt and have assumed that the power to say that in respect to contracts, which have no other purpose and no other consider ation on either side than the mutual restraint of the parties, how much restraint of com petition is in the public interest and how much is not." That Is to say that whenever the courts have departed from the original contracts in restraint of trade per se as to which the contracting out of trade is simply ancillary, and undertaken to apply to a combination
and conspiracy tending to monopoly the element of reasonableness or unreasonable ness, they have set sail on a "sea of doubt" and assumed a power which they cannot legitimately exercise. And again, in applying the authorities to the particular case in hand he said: "Upon this review of the law and the authorities, we can have no doubt that the association of the defendants, however reasonable the prices they fixed, however great the competition they had to en counter, and however great the necessity for curbing themselves by joint agreement from committing financial suicide by illadvised competition, was void at common law, because in restraint of trade and tending to a monopoly." And while it was attempted from the facts to show that although there was a combination or conspiracy in that case tending to monop ly, it was reasonable in its character, he held: "We do not think the issue an important one, because as already stated, we do not think that at common law there is any question of reasonableness open to the courts with • reference to such a contract. Its tendency was certainly to give defendants the power to charge unreasonable prices had they chosen to do so." Here the learned judge distinctly holds that the element of reasonableness is not predicable upon a combination or con spiracy tending to the monop ly of trade. It follows from this that the attempt that is made by the so called " Hepburn amend ment" to the Sherman antitrust law to import the clement of unreasonableness into that statute has no foundation in the common law and is in direct violation of the well-considered legal distinction that has always existed between contracts per se in restraint of trade, where one individual contracts with another to contract himself out of trade, and combinations and con spiracies tending to the monop- ly of trade. These legal considerations disclose very
