injurious to the public than is required to afford a fair protection to a party in whose favor it is secured."[1]
And a complete misunderstanding of such cases as Mogul vs. McGregor.[2] It had never been common law that the public might be "reasonably" robbed a little, if the malefactor but profited a great deal. That, as had always been the case, was directly contrary to the law. Judge Taft, Justice Harlan and Judge Lurton concurring, made this, at last, clear in the Addyston case, saying:
"In Mallen vs. May, Baron Parke said:[3] 'Contracts for the partial restraint are upheld, not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced.' Many of these partial restraints on trade are perfectly consistent with public convenience and the general interest and have been supported. Such is the case of the disposing of a shop in a particular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is, in effect, the sale of a good-will, and offers an encouragement to trade," etc.
That so valuable a case as Mogul vs. McGregor should not only have been totally misunderstood, but completely misapplied by the lower courts is almost incomprehensible. For it is the star case for, not against, competition. The lower courts seem to
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