molestation; but it did not protect it absolutely. It might always, for example, from the earliest times, be made valueless by an exercise of a like liberty by others—that is, by competition.
But it was protected from all unlawful attack, absolutely. It was only thus protected as part of the liberty of the citizen, and the liberty to make a binding contract might be equally important. 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. That is the whole doctrine of "reasonable restraints," if the best considered cases are looked to. In other words, if the contract were fair and reasonable, and beneficial to the public—that is, in advancement of an enlarged trade—it was "reasonable" to permit a liberty of contract which, if denied, would tend to diminish trade. "Reasonable" restraints of trade, therefore, were not in reality, restraints upon trade at all, but only such voluntary restraints upon traders as advanced trade; and it was chiefly because they advanced trade that they were permitted. While the law was tender of the rights of the individual, and protected them in trade, its chief end and aim was totality—trade in gross, the trade of the nation or realm; and of that it was jealous to the extreme.
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