notes of discord are those which disturb the general joy, and silence the acclamations of victory? They are the notes of John Hook, hoarsely bawling through the American camp, 'Beef! beef! beef!'"

It would be difficult to describe the scene that followed; the decorum of the court was lost in the roar of laughter that convulsed the audience. The clerk of the court, unable to restrain himself, rushed from the room, and, throwing himself on the grass, rolled over and over in a fit of uncontrollable laughter. Here he was soon joined by the plaintiff, Hook, who had left the court room, and sought relief in the yard, but with feelings very different from those that had driven the court clerk to the same place. Hook not only lost his suit, but escaped a coat of tar and feathers only by a precipitate flight from the indignant patriots.

In speaking of Patrick Henry's eloquence, it has been well said that his fancy, although sufficiently rich and abundant, was not so exuberant as to oppress him with its productions. He was never guilty of the fault, of which Corinna accused Pindar, of pouring his vase of flowers all at once upon the ground; on the contrary, their beauty and their excellence were fully observed, from their rarity, and the happiness with which they were distributed through his speeches.

His eloquence was described by his contemporaries as a mighty and roaring torrenta short but bold and most terrible assaulta vehement, impetuous and overwhelming burst-a magnificent meteor, which shot majestically across the heavens, from pole to pole, and straight expired in a glorious blaze. His eloquence was the gift of heaven-"the birthright of genius." John Randolph of Roanoke declared that Patrick Henry was Shakespeare and Garrick combined.

As an evidence of the high opinion of Washington for Patrick Henry, it may be mentioned that, when the office of Secretary of State became vacant he offered the place to his old friend, and urged him to accept it. This being declined, three months afterwards the President asked him to accept the great office of Chief Justice of the United States. This was, also, declined, as well as the appointment of United States Senator, offered him by General Henry Lee, the Governor of Virginia, and the position of minister to France, tendered him by President Adams.

Professional men retired earlier in the eighteenth century than they do in these days of extraordinary mental activity. Patrick Henry, after paying his debts, and securing an ample fortune, retired finally from the bar in 1794, when he was only fifty-eight years old.

W

I. HENEVER there is an accepted belief among men that a certain line of policy is for their industrial salvation, that belief has already become a principle of the law. In dealing with the eternal problem of competition and combination the judges have the same social imagination as other men. And as the most of men still think that competition in general is a good, the most of courts yet consider combination an evil. Whether or not it is true that a combination in restraint of competition is against the better interests of the community may be judged from the many and various instances of schemes to control the market related in this article.

II.

From the Common Pleas in the year 1415 the following case is reported: "Writ of debt was brought on an obligation of one John Dier, in which the defendant declared upon a certain indenture which he set forth, on condition that if the defendant did not use his art of dier's craft within the town where the plaintiff, etc., for a certain time, to wit, half a year, the obligation should lose all force, etc., and said that he did not use his art of dier's craft in the time limited, which he averred and prayed judgment, etc. Hull.In my opinion you might have demurred upon him, that the obligation is void, for that the obligation is against the common law, and by God, if the plaintiff were here, he should go to prison until he paid a fine to the king. Strange.-We aver that the defendant has used his art for a time, to wit, vii. days, within the time limited by the condition, and the others to the contrary."

From that day to this every contract in total restraint of trade has been held invalid.

Our law has never been free from the fear that such agreements might result in serious disturbance of the ordinary processes of competition. This fear was well founded in ancient times, when the market was small, for England had not yet changed from a local economy where each community was sufficient to itself into a national economy which implied interchange of goods between distant communities. Therefore, if one dver agreed with another not to ply his trade, as likely as not that would leave the other in possession. For that reason the court held the contract against public policy with such righteous indignation.

The same industrial wrong was worked by any scheme to gain control of the market. In early days, in a small town, it was quite possible for one man to buy up all of a commodity coming into the market, which he could then sell again at his own price. Practices such as these were indictable offences in these early times. It was against the public peace that the market should be thus disrupted. There is much ancient law distinguishing forestalling from regrating, and discriminating between enhancing and engrossing. This sort of distinction on distinction is seen in the argument of counsel in King v. Maynard (Cro. Car. 231), an information for engrossing one hundred bushels of salt to sell again.

But all of these involved the same misdemeanor, control of the market. This law has all but disappeared as the market has expanded until it has gotten almost beyond the power of any one man to corner it. But this law remains against combinations in restraint of trade, which often are large enough to take possession even of the modern market for a time for their own ends.

The simple case of restraint of trade is as obnoxious to a modern court as ever. Tuscaloosa Ice Company v. Williams (127 Ala. 110), the latest uncomplicated case, shows that. The complaint recited that by the terms of an agreement between the plaintiff and defendant, the first party was to pay $875 a year and the second party was to shut down his ice machine for five years. A demurrer to the bill, pointing out that the agreement was in restraint of trade, was sustained.

Mr. Justice McClellan said in part: "This contract is clearly bad. It tends to injure the public by stifling competition and creating a monopoly. Its manifest purpose even upon its face, and certainly when taken in connection with the facts averred in the plea, was to secure to the covenantee a monopoly in the production and sale of ice in the town of Tuscaloosa and vicinity, and such is its operation and effect. Indeed, on the allegations of the plea it was even worse than this, for one of its results was to reduce the available supply of ice below the needs of the locality affected by it. It thus operated not only to put it in the power of the covenantee to arbitrarily fix prices, but directly and necessarily to create a partial ice famine, upon which the defendant company could batten and fatten at its own sweet will. That a monopoly was created is clear beyond all dispute. That ends the case against the validity of the covenant. Nor is there the least merit in the suggestion that ice could be brought to Tuscaloosa from other places, and hence that the defendant had no monopoly. All of the foregoing propositions sustaining the conclusion that the contract sued on is violative of public policy as stifling competition and promoting monopoly to the manifest injury of the public are fully supported."

In recognition of this law various devices have been tried by astute lawyers to avoid it. A late example of this sort of scheme is the "dead lease" seen in Clark v. Needham (125 Mich. 84). The arrangements made by the

attorney involved two leases, one from the party who was to sell out one branch of his business, absolute in form at a high rental to be paid by the buyer; the other from the buyer back to the seller at nominal rental, with covenants against engaging in that line of business.

The court was quick to see through this elaborate plan; Mr. Justice Grant said on that point: "These two instruments constitute but one instrument, and must be construed together. Briefly stated, the agree ment is this: Plaintiffs, in consideration of $1500, to be paid to them annually, agreed for a period of five years not to manufacture or sell chaplets, except for only one party. Plaintiffs' sales were not limited to the place of manufacture, but extended into other States. The plain object of the agreement was to substantially close this part of plaintiffs' business, and to give defendants a monopoly of it. The parties evidently recognized the invalidity of such a contract, put in plain and unequivocal language, and sought to evade it by these two so-called leases. The arrangement was a bare subterfuge to evade the law. Defendants did not buy out plaintiffs' business, machinery and plant, or lease them for the purpose of continuing their (plaintiffs') business. The result intended and accomplished was to close that part of plaintiffs' business, to throw their employés out of employment, and to deprive the public of any benefit from the continuance of their business. Such contracts tend to destroy competition and create monopolies, and are void."

These, then, are first principles. It is enough if between the two parties to the agreement the restraint is total in any particular. And it does not relieve the situation if the effects of that agreement may be limited to a greater or lesser extent by competition of parties outside of the agreement. The law regards what the effect would be if more and more of such agreements were entered into between competitors in the same

field. The only matter of difficulty is to determine as a matter of fact what schemes will result in control of the market; for some of these are deep laid, as this discussion will disclose. Upon the whole, few rules in our policy are so thoroughgoing as this against restraint of trade.1

III.

Upon this vexed question of combination. in restraint of trade the leading case in America without much doubt is India Bagging Association v. Kock (14 La. Ann. 168); the facts, as they appear from the finding of the court, are as extreme as can be imagined. In 1856, an association was formed of eight firms in New Orleans, holders of large stocks of India bagging. By the agree 'ment the subscribers bound themselves not to sell any bagging whatever for three months, except by vote of the majority. This suit was brought against one of the members by the association for selling seven hundred and forty bales in contravention of these articles, the agreement providing for ten dollars' penalty for each bale so sold.

Mr. Justice Buchanan dismissed this suit. in a peremptory manner: "This is a case which ought never to have come before us. The agreement between the parties was palpably and unequivocally a combination in restraint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be enforced in a court of justice. It is, therefore, adjudged and decreed that the judgment of the District Court be reversed, and that this

'The following cases, among others, hold a contract in total restraint of trade unenforceable:

Prugnell v. Goff, Allyn, 67; Gunmakers v. Fell, Willes, 388; Leighton v. Wales, 3 M. & W. 545; Toby v. Major, 43 Sol. J. 778; Oliver v. Gilmore, 52 Fed. 563; Cravens v. Carter Crume Co., 92 Fed. 429; Fowle v. Parke, 131 U. S. 88; Lumber Co. v. Hayes, 76 Cal. 387; Craft McConoughy, 79 Ill. 346; Harrison v. Lockhardt, 25 Ind. 112; Chapin v. Brown, 83 Ia. 156; Presbury v. Fisher, 18 Mo. 50; Murray v. Vanderbilt, 39 Barb. 140; Grasselli v. Lowden, 11 Oh. St. 349; George . Coal Co., 83 Tenn. 455; Fairbank v. Leary, 40 Wis. 637.

suit be dismissed, at costs of plaintiff in both courts."

This case, it is plain, represents one extreme-unreasonable suppression of competition; it will, therefore, fix the limits of the discussion to bring forward for examination a case at the other extreme-reasonable regulation of competition. In Stovall v. McCutchen (54 S. W. Rep. 969), the facts were these: In 1895, appellant and appellees, all merchants of Russellville, signed an agreement as follows: "We, the undersigned, merchants of Russellville, do hereby agree and obligate ourselves to close our place of business at 6.30 o'clock, beginning May 15th, 1895, and lasting until the first of September." The pleadings and proof all agreed that the intention of this writing was that the stores were to be closed at 6.30 p. m. of each day during the time specified, except on Saturdays. After compliance for a few evenings after the 15th of May, appellant notified appellees that he declined to further complv with the agreement, but would disregard it. This he did. Appellees instituted this action to compel him to specifically perform the agreement.

The opinion of Mr. Justice White was brief, but to the point: "While it is true that contracts in restraint of trade are to be carefully scrutinized, and looked upon with disfavor, all contracts in restraint of trade are not illegal. The restraint here put is but partial, very inconsiderable. It is but a few hours, at most, each day, and for three and one-half months, during the extremely hot weather. It has come within the observation of the members of this court that during this season (May 15th to September) many merchants close about 6.30 or 7 p. m. This cannot be held to be an illegal restraint of trade."

Of the arrangements between competitors to limit competition some are easy to dispose of under these rules, others are not. Whether or not the scheme results in suppression of substantial competition is the test, a question