the method of accomplishing restraint universally adopted; where it is, therefore, undertaken in unusual ways or great degree, the primary presumptions against all that may restrain still needs to be negatived. In present times, to say that a suppression, an elimination of competition on a great scale, or out of the beaten and ordinary path, would not tend to oppression, would be substantially to reverse the ordinary presumption though that involves no greater hardship than the readiness to display a clean bill of health. "But if there are circumstances recited in the instrument" (or probably if they appear by averment) "it is for the court to determine whether the contract be a fair and reasonable one or not, and the test appears to be whether it is prejudicial or not to the public interest, for it is on grounds of public policy alone that these contracts are supported or avoided.[1]
By the suppression of competition one of these magnificent combinations can, and has, filched millions of money from the people in a single year; and so, when the National police has been stricken down on his beat, is it too exacting to require that it should at least be able to establish that its purpose was not also to rob the house? To make that at least reasonably clear? Can any one say to-day that, as a rule, the stifling of competition on a great scale does not tend to raising prices, restraining trade in most cases? And if so, is the rule or exception to be proved? Is there not in such cases, just as the court has again and again said, "tendency," if not the completed injury? And where is the case that says that the provision of the statute of James as to "tendency" has ceased to be a part of the law?
- ↑ Baron Parke, Mallan vs. May, 11 M. & W. 665 (1843).
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