public policy are at the bottom of all sound legislation in restraint of trade, and that public policy is a changeable quantity in the problem, Lord St. Leonards, in a case in the House of Lords, decided a little after the middle of the present century, used the following notable language:
My Lords, there are just a few remarks that I wish to make upon public policy. I will not add a word to what has been already said by my noble and learned friends, but I will call your attention to what fell from one of the learned judges (Mr. Justice Cresswell) as regards the restraint of trade. That learned judge says that with regard to the restraint of trade, there is a maxim in common law, and he refers to a case in Year Books (2 Hen. V, pl. 26), to prove it; but the learned judge did not tell your lordships upon what that maxim was founded. Nobody supposes that there was any statute upon the subject in those times. Upon what, then, was that maxim founded? Why, upon public policy for the good of the realm. It was not good for the realm that men should be prevented from exercising their trades. Now, let us see what this particular case is; it lies in few words and remarkable consequences have resulted from it. It was an obligation with a condition that if a man did not exercise his craft of a dyer, within a certain town, that is, where he carried on his business, for six months, then the obligation was to be void, and it was averred that he had used his art there within the time limited, upon which Mr. Justice Hull, being uncommonly angry at such a violation of all law, said, according to the book, "Per Dieu if he were here, to prison he should go until he made fine to the king, because he had dared to restrain the liberty of the subject." I wish to draw your lordships' attention to this case. Angry as the learned judge was at that infraction of the law, what has been the result of that very rule without any statute intervening ? That the common law, as it is called, has adapted itself, upon grounds of public policy, to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced is just as good a condition now as any that was ever inserted in a contract, because a partial restraint, created in that way, with a particular object, is now perfectly legal. Without any exclamation of the judge, and without any danger of prison, any subject of this realm may sue upon such a condition as Mr. Justice Hull was so very indignant at in that particular case. That shows, therefore, that the rule which the learned judge, whose opinion
