If it be asked of what importance all this is, in view of the fact that the Supreme Court has, in any event, already held that every contract in restraint of trade is void, the reply is, that if the so-called reasonable restraints of the common law, properly understood, are to be included, the Act is then defeating its own purpose of protecting and encouraging national trade; for, if they be included, then are contracts in furtherance of trade made illegal. But a second and greater difficulty lies in the fact that, driven just as the common law judges were by the real reason and sense of the thing the courts are one by one allowing all these alleged exceptions to a professedly universal rule, and thus making both the rule and the exceptions uncertain to those who do not inquire deeply. It is believed that the court has never precluded itself by this labor-saving assumption from making this inquiry, and that the inquiry when made will only fortify the conclusion that it has reached independently, while at the same time clarifying the principle governing the so-called exceptions.
The court, in any event, has never said that any restraint or limitation of the totality of National trade was a reasonable thing to permit, though it has already permitted an exercise of the liberty of contract that tended to its advancement; but that is the exact position of the common law.
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