358 HARVARD LAW REVIEW. will retire altogether from the trade which is being disposed of, provided always that the covenant is one the tendency of which is not injurious to the public. This last element in the definition ought not, I think, to be overlooked, for I can conceive cases in which the absolute restraint might, as between the parties, be reasonable, but yet might tend directly to in- jure the public ; and a rule founded on public policy does not admit of any exception that would really produce public mischief; such might be possibly the case if it was calculated to create a pernicious monopoly in articles for English use, — a point I desire to leave open, and one which, having regard to the growth of syndicates and trusts, may some day or other become extremely important." ^ In facility and precision of statement of legal propositions lead- ing up to or summarizing an argument, omitting no essential quali- fication, and expressing neither too little nor too much, Lord Bovven was a master. His clear and comprehensive statement, in Thomas V, Quartermaine,^ of the duty of the occupier of premises, is an excellent illustration of this.^ More than a century ago, Burke observed that the practice of the law, though in his view " a science which does more to quicken and invigorate the understanding than all the other kinds of learn- ing put together," does not always, except in the highest order of intellects, " open and liberalize the mind " and is even apt to give a turn to " think the substance of business not to be much more im- portant than the forms in which it is conducted." Judged by this 1 Maxim Nordenfelt Gun & Ammunition Co. v. Nordenfelt, [1893I i Ch. 631. 2 18 Q. B. D. 694. 8 In Baroness Wenlock v. River Dee Co., 36 Ch. D. 684, Lord Bowen gave the best statement of general corporate powers to be found in the reports. In the course of a singularly lucid opinion, in Abrath v. Northeastern Ry. Co., 11 Q. B. D. 455, he simplified the use of the term " burden of proof." In Low v. Bouviere, [1891] 3 Ch. 105, he defined estoppel. In Steinman v. Angier Line, [1891] i Q. B. 621, he showed how the usual exceptions in a bill of lading '* limit the liability, not the duty." He summed up his view of the law applicable to contracts in restraint of trade in the fol- lowing terms in Maxim Nordenfelt Gun & Ammunition Co. v. Nordenfelt, [1893] i Ch. 631:-
- The result seems to me to be as follows : General restraints, or, in other words,
restraints wholly unlimited in area, are not, as a rule, permitted by the law, although the rule admits of exceptions. Partial restraints, or, in other words, restraints which in- volve only a limit of places at which, of persons with whom, or of modes in which, the trade is to be carried on, are valid when made for a good consideration, and where they do not extend further than is necessary for the reasonable protection of the covenantee. A limit in time does not, by itself, convert a general restraint into a partial one. * That which the law does not allow is not to be tolerated because it is to last for a short time only.' In considering, however, the reasonableness of a partial restraint, the time for which it is to be imposed may be a material element to consider."
