Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/833

 so. V ELDER: A CENTURY OF JUDICATURE 819 to apply legal doctrines so as to meet " the broadening wants or requirements of a growing country, and the gradual illu- mination of the public conscience." In the course of a bold application of an established principle he said : " It is not a valid objection to a legal doctrine that it will not be always easy to know whether the doctrine is to be applied in a par- ticular case. The law has to face such embarrassments. . . . The instance to which the legal principle is now for the first time adopted by this court may be new, but the principle is old and sound; and the English law is expansive, and will apply old principles, if need requires it, to new contin- gencies. Just as, in America, the law of watercourses and of waste has modified itself to suit the circumstances of enormous rivers and wide tracts of uncultivated forests, so the English law accommodates itself to new forms of labor and new necessities of [arbor] culture." Dashwood v. Mag- niac, (1891) 3 Ch. 306. Therefore, in applying, in a lead- ing modern case, the ancient rule as to contracts in restraint of trade, he said: " A covenant in restraint made by such a person as the de- fendant with a company he really assists in creating to take over his trade, diff'ers widely from the covenant made in the days of Queen Elizabeth by the traders and merchants of the then English towns and country places. When we turn from the homely usages out of which the doctrine of Mitchell ». Reynolds, 1 P. Wms. 181, sprang, to the central trade of the few great undertakings which supply war material to the executives of the world, we appear to pass to a different at- mosphere from that of Mitchell v. Reynolds. To apply to such transactions at the present time the rule that was in- vented centuries ago in order to discourage the oppression of English traders and to prevent monopolies in this country, seems to be the bringing into play of an old-fashioned instru- ment. In regard, indeed, of all industry, a great change has taken place in England. Railways and steamships, postal communication, telegraphs and advertisements have central- ized business and altered the entire aspect of local restraints on trade. The rules, however, still exist, and it is desirable that they should be understood to remain in force. Great