The times. [volume] (Richmond, Va.) 1890-1903, 1897-04-24
SATURDAY, APRIL "a, 1897.
THE VICE In rHE COURTS AXGU-
MENT.


The recent decision Of the Supreme
Court of the United States in the Trans
Missouri Freight case has been sufil-
GENTLY discussed for readers who are
interested in the subject 10 understand
the question involved. The antitrust
act Of Congress makes every inter
State contract Of restraint Of trade
void. The court says it must give full
effect to this word every and that il
contract puts any restrictions what
ever upon trade IL must hold that con-
tract to be void. To our mind, however,
there is a vice in the courts argument.
That vice lies at this pointA restriction
upon trade is not necessarily restraint
upon trade" 1t may be or 1t may not
be- There may be restrictions upon trade
which. nevertheless promote trade when
the subject is considered in all its bear
ings.
Two citizens of Richmond, for in
stance. agree to form partnership TO
buy tobacco and ship it to New York for
export. Earh makes the other agree
that he will give his undivided attention
TO their tobacco business and will not
buy and sell corn. wheat or lumber Now
here is a contract which puts restrictions
upon trade in corn. wheat and lumber
but all the same. it is a contract which
when the subject is looked at In a broad
way, promotes rather than Restraints
trade" 1t makes these two citizens
specialists IN the tobacco business, ana
trade necessarily receives an impetus
as those engaged IN a particular branch
Of business acquire special knowledge
In that branch. and are able to develop
it TO Its highest possibilities.
The same thing is true in a stin
broader way OF all traffic. The founda'
ton Of all trade and traffic IS contracts
There can be no trade without contracts
Yet no contract can be made that does
not put some sort of restriction upon
some sort of traffic.
Whenever man agrees to do a thing,
he necessarily agrees not to do anything
that will disable him 10 do that when
he agrees TO do. That is tho corner stone
OF his contract. But this implied agree
nent restrains him from doing those
other things and u.s. therefore. to GER
tain extent a restriction upon trade.
Nevertheless. performance OF his agree
ment promotes instead OF restraining
trade.
Agreements which puts restrictions
upon trade do not therefore. necessarily
RESTRAIN trade" There can be no trade
unless the agreements which make n
put some sort OF restriction some where.
IL is not therefore restrictions upon free
dom OF action which constitute 70
strainis upon trade There must be
restrictions upon freedom Of action or
there can be no trade at an. The DC
sunction lies al the line which divides
liberty from license. License is freedom
to do what a man will. without reraia
TO the rights OF others. Liberty SIS ireo-
dom regulated by law. that Is by re-
slraints which forbid the man TO trepass
upon the rights OF other men. That
freedom OF trade then watch realizes the
legal idea Of exemption from restraints
upon trade" consists ia allowing every
man to make any contract whatever.
that he desires TO make. by which he
bona hde aims at promoting his own
welfare only without any malice OF m
will or evil intention towards my other
man. and those restrictions ON TRACE
which amount 10 wha, the law calls "rc
straints upon trade. are the interrup-
lions TO trade which come from agree
ments that aim al doing wilful or mali
cious injury 10 others.
Whatever restrictions the first class or
agreements may put upon some Kind or
traffic al some points. their general ef-
feet is 10 promote rather than restrain
trade, and the second class must inevi-
tably RESTRAIN trade" In their general
operation because they aim at wrong
aud injustice. and there can be no
healthy and sound trade founded In that