632
The Green Bag
worked out has been largely modified by the doctrines in favor among econo mists and publicists for the time being, and, accordingly, the tendency of decis ions has inclined to one or another with the fluctuation of theory. The oscilla tions have been less violent in case-law than in legislation, and they have fol
lowed expert opinion, or what was deemed to be such, rather than the voice of the multitude or the party. For the men who make law, by judicial methods at any rate, are not mere men in the
crowd; they rather belong to the edu cated class who mediate between the
leaders of thought and the general pub lic opinion that sooner or later follows them.
Without any aid of legislation,
without expressed disapproval of a single authority, the law as to restraint of trade has in our own time effected a
change of front that has brought it completely into line with modern busi ness conditions. The common law favors competition wherever free competition is practicable, but prefers regulation by public authority to restrictions imposed by any combina tion of private interests; and this, in either case, with a view to the common advantage, and not on any assumption
of absolute natural rights.
a special training as that of the learned professions of this day.
The man who had thus made himself a full member of a craft or corporation
had a positive right to exercise his call ing, or “lawful mystery,” without hin drance, and his neighbors were entitled
on their part to the benefit of his skilled work. Our modern notion of letting every man try his chance, and trusting
unchecked competition between all sorts of competent and incompetent persons
to secure the public interest automati cally, may have its virtues, but it is modern, and not mediaeval. The old common law made no objec
tion to the self-government of the trades, nor, with one material reservation, to the number of one trade in any one place being limited. The reservation wa
that the privilege must not be abused so man as to hascreate his rights, a monopoly. which must Thebe crafts pro tected;
it is also his duty to exercise
them for the public good, and he may not disable himself from exerting them. Doubtless,
abundant
mistakes
were
made in working out such a system, and some which now appear to us childish. Still it was in itself a consistent plan, and by no means contemptible.
It had to pass away with the condi
Now, we must be careful at the out set not to be misled into making familiar
tion of society for which it was made but it left its mark in a continuing hatred
historical words bear a purely modern significance. Free competition is favored
of monopoly which has not lost its vigor in the latest jurisprudence and legisla tion of English-speaking countries; a
in the law.
That is true, but it did not
originally mean unlimited competition between all men. The merchants and the tradesmen of the Middle Ages held to be qualified persons. Before they could exercise their business they passed
vigor which, now as much as ever, needs
to be guided by well-advised judgment. If the competition under equal condi
through a stage of apprenticeship and
tions is to be free, then it follows that the consequences must be accepted. A man cannot complain if a more skilful
when they became free of their guild or
or fortunate competitor diminishes his
craft, this freedom was the same (as almost always in mediaeval speech) as a privileged condition, as much earned by
the law will not give him. It is curious that our earliest classical
profits.
A monopoly is exactly what
