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place. 8 Coke's R., 125. Cro. Eliz., 803. i Leon, 142. 2 Bulstrode, 195. Dyer, 279. 11 Coke's R., 52.
Third. Restraints by ordinances are void, if tending to restrict trade in general; or to exclude foreigners, where no precedent custom exists. Moor, 576. Inst., 47. 1 Bulstrode, 11. But such restraints are good, if made to restrain trade, for the better government and regulation of it, if for common benefit, and to avoid public inconveniences, nuisances, &c.; or for the advantage of trade, and the improvement of the commodity. Sidufin, 284. Ld. Raymond, 288. 2 Keble, 27, 873. 5 Coke's R. 62. Wannel vs. Chamber, of London, 1 Strange, 675. King vs. Harrison, 3 Burrow, 1322. Pierce vs. Bartrum, Cowper, 269. Mayor of Mobile vs. Yuile, 3 Alabama R. 137.
2d. Voluntary restraints are such as arise from the act of the party, upon agreement, and are either general or special.
First. General restraints are wholly void; and it is immaterial whether the stipulation be by bond, covenant, or promise, with or without consideration, or of the party's own trade, or not. Cro. Jac., 596. 2 Bulstrode, 136. Cov. Eliz., 872. Moor, 115. 2 Leon, 210. 3 Leon, 217. Murch, 191. Owen, 143. Noble vs. Bates, 7 Cowen, 307. Mitchell vs. Reynolds, 1 P. Williams, 181. The reasons given for prohibitions of this nature, in respect to general restraints, are, that such contracts produce monopolies, and are against public good, deprives a party of his means of living, enables employers to lay onerous services upon their servants, &c.
Second. Restraints of a particular kind may be valid, or not, as they are partial, as they are reasonable, and as they are sustained by a consideration. 1st. The law will not enforce a contract which obliges a party not to do what his own interest, and the wellfare of the public, demands he should perform; and whether an obligation, restraining a particular employment, does those things or not, seems to be one of the tests, as to whether the restriction is so partial as to be enforced. The exercise of one's talents, industry, or capital, is a public, as well as private right; for on it may not only depend the wellbeing of the entire community, but the support of the individual
. An agreement, therefore, not to employ these in any useful undertaking in the country, would be void, as contravening these rights. In cases in which restraints of a partial nature are authorized, it must be the interest of the party, and to the general convenience, that a trade be not carried on, or a profession followed. Chesman vs. Nainby. Clark vs. Comer. Cases of the time of Hardwich, 53. Davis vs. Mason, 5 T. R. 118. Bunn vs. Guy, 4 East., 190. Bozon vs. Farlow, Merivale, 472. Leighton vs. Wales, 3 Meeson & Wilsby, 545. Gale vs. Reed, 8 East., 79. Ward vs. Byrne, 5 M. & W., 561.7 Cowen, 307. Pyke vs. Thomas, 4 Bibb, 486. Stoams vs. Barrett, 1 Pick., 450. Palmer vs. Stebbins, 3 Pick., 188. Peirce vs. Fuller, 8 Mass., 223. Perkins vs. Lyman, 9 Mass., 522. Peirce vs. Woodward, 6 Pick., 206. 10 Modern, 27, 86, 130.
2d. The reasonableness of such restraints are judged of by this test. Does the restraint only afford a fair protection as to the interests of the party in favor of whom it is given ? and is it not so large as to interfere with the interests of the public? Per. C. J. Tindall, in Homer vs. Graves, 7 Bing. 743. A restraint to greater extent than the necessary protection of the party, or which is injurious to the interests of the public, is unreasonable, and consequently void.
The unreasonableness of such contracts very frequently is considered in re
spect of the space covered by the agreement. No certain boundary can be laid down in cases of this description ; as much will depend on the nature of the business, the denseness of population, and the character of the community. The contract of a surgeon, not to practice within ten miles of another's residence, was held reasonable. Davis vs. Mason, 5 T. R., 118. While that of a dentist, not to practice within one hundred miles of a town, was held unreasonable. Homer vs. Graves, 7 Bing., 743. So an agreement not to follow or be employed in the business of a coal merchant, for nine months, was held unreasonable. Ward vs. Byrne, 5 M. &. W., 548. And one not to exercise the trade of a milk-seller within five miles of a certain square, for a limited time, was adjudged good. Proctor vs. Sargent, 2 M. & Gr., 20. In the case of Rannie vs. Irvine, 7 M. & Gr., 969. A covenant not to supply bread to any of the party's customers during a certain period, was sustained.
A stipulation of this nature may be valid in part, and in part void. Thus, the covenant of a dentist, not to exercise that employment in London, or in any place in England or Scotland, where the other party had practiced, was holden valid as to London, but void with respect to the residue. Mallan vs. May, 11 M. & W., 653. So an agreement not to carry on the trade of a perfumer within the cities of London or Westminster, or within six hundred miles from either, was adjudged good as to the cities, but void as to the six hundred miles. Green vs. Price, 13 M. & W., 695.
Third. With respect to the consideration of such contracts, the law has undergone some changes. In the early cases, it was held that the consideration should not be merely colorable but adequate; and Lord Ellenborough, in Gayle vs. Reed, 8 East., 86, laid down the rule, that the restraint on one side should be co-extensive with the benefits to be enjoyed by the other. Young vs. Timmons, Tyrn, 226. Wallis vs. Day, 2 N. & W., 273. But in Hitchcock vs. Coker, the court began to relax this rule ; and in this case refused to inquire into the consideration, if shown to possess some bona fide, legal value. In that case, however, it was conceded that, if the consideration were merely colorable, the contract could not be enforced. And it is now considered as settled, that the courts cannot look to the question of the extent or adequacy of the consideration. Leighton vs. Wales, 3 M & W.551. Archer vs. Marsh, 6 A. & E. 966. In all the cases rejecting the question of adequacy of consideration, the true inquiry is held to be, as to the injurious character of the contract to the public. If not detrimental to public interest, such agreements are valid, and the parties may contract upon what consideration they please. Green vs. Price, 13 M. & W. 695. Proctor vs. Sargent, 2 M. & Gr., 20. Mallan vs. May, 11 M. & W., 653. The conclusions to be deduced from these principles of law are,
persons entering into these engagements, should consider the question, whether in the first place they affect the public interest injuriously, and, secondly, provide a merely colorable compensation to the party restrained. In the first case they would be void, on the grounds of public policy; in the last, invalid, from the absence of consideration. The inquiry in obligation of this description is not whether a party has merely parted with his privilege of enjoying
right, on the ground that one may voluntarily, and by his own act, deprive himself of the possession of his freehold, and sell or give it away at pleasure; but whether the private interest, and the public benefit, justify the restraining of that right. Because such stipulations are sustained, not because merely advantageous to the individual with whom made, and because
they operate as a sacrifice, pro tanto, of the rights of the community ; but be cause it is for the benefit of the public at large to enforce them. Per Parke B. in Mallan vs. May, 11 M. & W., 653. As a standard, therefore, by which to govern this kind of agreements, it may be laid down, generally, that all contracts are good, which, upon some consideration, partially restrains a party from exercising a trade or employment, the effect of wbich restraint upon persons dealing with that trade or employment, would not be to limit the general exercise of, or to give the party obtaining the restraint a monopoly in, the particular trade or employment.
We cannot close this article without indulging gratulatory reflections, upon considering the effect of the freedom of trade upon the prosperity of our country. Not that, by the freedom of trade, we would be understood to mean a loose, indefinite action of government, which leaves the industry of the country without protection, and its commerce without encouragement; but that liberality in the construction of contracts, and the securities which is thrown around them, which, while leaving the field of commerce free, at the same time extends just rewards to genius ; under which labor, left to the free exercise of its own powers, and defended against fraudulent appropriations, has constantly improved upon the arts, and opened innumerable sources of prosperity, enriching alike the individual and the State. Had a line of distinction, not justified in principle, not been drawn between the labors of the mind and of the hand, the gratulation would be complete ; and it would not now be the reproach of nations, that while they have encouraged, to the utmost limit of government aid, the meanest manual employment, the divine products of the mind have been left subject to any theft, without defense from law, and animated by no hope of reward from public authority.
Art. VU. RAILROAD TO THE PACIFIC.
This great enterprise, destined to form a new era in the commerce of the world, and to exert a prodigious influence on the rapid progress of this country in population, and all the elements of national wealth and greatness, we are rejoiced to see, is commanding increased public attention. Whether we regard the magnitude of the enterprise, or the influence it is calculated to exert on the cause of civilization, and the destinies of the old and the new world, its accomplishment will be, and ever remain, the greatest event of the nineteenth century.
It is impossible to conceive of the influence this great work must have upon trade, population, and the highest interests of the human race. It will open the heart of this vast continent of more than 3,000 miles in extent, to the over-populated countries of Europe and Asia. This road will carry settlements and civilization from the Mississippi to the Pacific, an extent of nearly 2,000 miles; and open that vast region to the dissatisfied people of Europe, now struggling for a social condition, which, under their old organizations, they will probably never attain. It will also invite emigration from China, India, and other over-populated countries in Asia. The Chinese, not being a maritime people, have not planted colonies, or established settlements, beyond the limits of their own territories, notwithstanding the excess of their population, which has led to the inhuman practice of exposing in
fants and aged persons to perish, that they might not consume the food wanted for those who were more useful.
But who can say that this policy or prejudice, whatever it may be, may not be overcome by a more intimate acquaintance with the people of Europe and America, and greater facilities of intercourse with them? Who can pretend to foresee the consequences which are to follow the establishment of American civilization, with the principles of civil and religious liberty, and the spirit of enterprise which belong to it, on the northern coast of the Pacific ? The countries of Asia, and the islands of the Pacific, would be to an enterprising commercial people, on the north-west coast of this continent, what the countries of Europe, and the islands of the Gulf of Mexico, have been to the people on the Atlantic coast. From our surplus food we have supplied the wants of Europe and the West Indies, and from our enterprise in the fisheries, bave furnished them with fish and oil. But, in process of time, the half famished people of Europe have found it a wiser course to emigrate to this country, where food was so abundant, and the facilities of living so great. And may not a similar trade and intercourse between the Pacific coast of the United States, and the countries of the East, produce a like result ?
But whether emigration from China and the countries of the East, to the Pacific coast of America, is to take place or not, there can be no doubt that our American population on that coast will maintain an active commerce with China and the countries of Asia ; and that this intercourse would gradually reflect and impart to the Asiatic nations the civilization of Europe, improved by being first transplanted in America. Civilization, commencing in the East, has advanced westward, improving as it has advanced; it has spread over Europe, and crossed the Atlantic to the shores of America ; penetrated into the interior of this vast continent, and now it is suddenly planting itself on the western coast of the continent, where it will react upon Asia.
But these results must be remote, without some communication better than now exists for transferring the population, enterprise, and resources of the Atlantic States, and the States in the great valley of the Mississippi, to our possessions on the Pacific. This cannot be accomplished by a voyage of five months around Cape Horn, nor by the Isthmus route, which in many respects is not less objectionable. And as to any route across the continent for travel, emigration, or trade, upon the waters of the Missouri and Columbia, or the Rio Grande and Gila, or any other, if the idea of it was ever entertained, it seems now to be abandoned. Even Col. Benton, who once maintained that the waters of the Missouri and Columbia formed the natural channel of commerce between the valley of the Mississippi and the Pacific coast, appears to have changed his opinion, and is now advocating a railroad across the continent.
But if Oregon and California could be settled by an enterprising, commercial people, without a railroad, they would be cast off from the great valley of the Mississippi, and could have very little trade with the Atlantic or Western States. Neither could they supply China and the countries of the East with food. From Cape Horn to the Frozen Ocean, the mountain ranges approach near to the Pacific; as you go north, the western slope increases in extent; and from San Francisco north to the British boundary, it is some 10° from the Rocky Mountains to the Pacific. But the western slope from the Sierra Nevada is but 150 or 200 miles, and the country lying between these two great ranges is either a desert, or broken and mountainous, and not
adapted to grain. And south of the tributaries of the Columbia, there is no rain in the summer, and can be no cultivation except by irrigation.
Neither California nor Oregon can ever become great grain countries, and when settled, will not more than supply the wants of the inhabitants. The mining, fishing, and commercial interests, will be likely to create a demand for the products of the soil, equal to the ability of the country to supply. To maintain a trade with China, in the exportation of food, it must come from the great valley of the Mississippi. With the road, an immense commerce with China yould be carried on, in the exportation of food and the importation of teas, silks, &c. In that case, the immense products of the Mississippi valley would be open to a market in the East, as well as in the West. With the new and increased demand for western products, the road, by opening 1,500 miles of country to settlement, would rapidly augment the amount produced. The balance of trade with China, now some $5,000,000 against us, would soon be turned in our favor. The profits of this trade to the people in the great valley, would increase their ability to purchase the manufactures of the Eastern States, and the staples of the Southern, so that all parts of the Union would share in the advancing prosperity.
It is hardly possible to conceive of the importance of a railroad which should bring New York within eight or ten days of the Pacific coast, and thirty-five or forty days of China. Such a communication must unavoidably produce a revolution in the commerce of Europe and America with the countries of the East. The trade of Europe would pass across this continent, entirely within the limits of the United States, and with the exception of the Atlantic part of the voyage, we should become the carriers in the trade of Europe with Asia. The commerce of Europe with the countries of the East, in the progress of discoveries, and the rise and fall of commercial States, passed from one nation to another, has always enriched the people possessing it. But this trade with all the States who have enjoyed the monopoly of it, has been mainly an import trade, specie being almost the only export to those countries. Their wealth came from the profits of the trade, not from its affording a market for their own products. But if the commerce of China and the countries of the East should fall into our hands by means of a railroad across the continent, it would enable us to exchange the products of our soil for the rich products of Asia. The shortness of the voyage, and the route being in a northern latitude, would enable us to export food to China, which cannot be done by a five months' voyage in a tropical climate.
With the facilities of a railroad communication, our possessions on the Pacific, from their mining, fishing, and commercial advantages, would soon sustain an extensive commerce with the Atlantic and Western States of the Union. Their mining population would want the food of the Mississippi valley, and their whole people the manufactures and merchandise of Europe and the Eastern States. And as this road must carry settlements with it across the continent, it would vastly augment the internal exchanges between the Atlantic States and the great valley of the Mississippi, extending to the Rocky Mountains.
This direct inland channel of trade between the Atlantic, Western, and Pacific States, so mutually beneficial to all, would bind these different and remote sections of our vast Union together by the strongest of all bonds, those of interest and intercourse. We should then be one people in the transactions of life, as well as by political organizations. The Rocky Moun