policy changed between the reigns of Henry V and Victoria, we shall see how, within the present half century, the doctrine of greater or greatest freedom in trade has grown and developed in the hands of the judges. In a leading case, more than twenty years ago, that consummate master of modern equity jurisprudence, Sir George Jessel, M. R., said:
If there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into, freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.[1]
This language is adopted and approved in a later case by Lord Justice Fry, and has been frequently quoted with approval, both in English and American cases relating to contracts in restraint of trade. Thus it is paraphrased in a recent Minnesota case as follows:
A contract may be illegal on grounds of public policy because in restraint of trade, but it is of paramount public policy not lightly to interfere with freedom of contract.[2]
In 1894, in the House of Lords, the last remnant of the old rule which attempted to distinguish between partial and general restraints of trade, was swept way. Lord Herschell in delivering his opinion, in the case, said:
Whether the cases in which a general covenant can now be supported are to be regarded as exceptions from the rule which I think was long recognized as established, or whether the rule is itself to be treated as inapplicable to the altered conditions which now prevail is probably a matter of words rather than of substance. The latter is perhaps the sounder view. When once it is admitted that, whether the covenant be general or particular, the question of its validity is alike determined by the consideration whether it exceeds what is necessary for the protection of the covenantee, the distinction between general and particular restraints ceases to be a distinction in point of law.
