of "assuming" that the common law did not include the offence, but that, even so, the statute did. And so originated a doctrine that bas caused much discussion and some difficulties—to be later mentioned.
The Supreme Court, after referring to Mogul vs. McGregor et al.,[1] cited by the courts below as holding that contracts in reasonable restraint of trade were legal at common law, continues: "But, assuming that agreements of this nature are not void at common law, and that the various cases cited by the learned courts below show it, the answer to the statement of their validity now is to be found in the terms of the statute under consideration." And this language is again quoted in Loewe vs. Lawlor.[2] This assumption, once made, has been, since, continued as fully serving the purpose; but as it has resulted in making the law self-contradictory in other cases, and introduced difficulty and confusion, it is of great importance to inquire whether it was well founded—an inquiry still open if I be right—and thus to ascertain whether the common law has not already solved the difficulties thus arising.
Let us, then, inquire whether the common law did not also make every contract, combination and conspiracy in restraint of trade unlawful?
The true distinction lies in the difference between restraining trade and restraining men from engaging in trade. This is often lost sight of, but it is none the less a real and substantial distinction.
The law, unquestionably, protected the liberty of citizen or subject to engage in trade from wrongful
- ↑ 23 Q. B. D. 598 (1889); 1892 A. C. 25 (1891).
- ↑ 208 U. S. 274 (1908).
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