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 FAIR COMPETITION

THE

JUSTIFICATION

OF

FAIR

COMPETITION

By Bruce Wyman I IN any consideration of industrial prob lems we are confronted by the long established condition of free competition and the still unquestionable desire for its continued maintenance. Even in these pres ent days of elimination of competition by combination, the public policy for free com petition is asserted often as vehemently as ever. For the most of men still believe, and the most of judges with them, that by the natural processes of free competition, men find their highest development. Of course, there are opposed to an absolutely free competition in fact the natural barriers which necessarily accompany an industrial organization. To such social limitations men may submit themselves however un willingly, but in modern times legal restric tion to individual advancement would not be endured in ordinary businesses. The final justification of the inevitable losses which free competition unfortunately in volves is to be found in this well founded opinion "that fundamental limitations upon free competition are not only wholly im practical but wholly incompatible with individual liberty. II That this is all a matter of current opinion may be established by showing that other views were formerly expressed quite as confidently by the courts of law. In the mediaeval system as we see it in our earliest law reports, restriction of competition was the prevalent doctrine. It was conceived that it was better both for producer and consumer to have a special position in the economic order assigned to every man. Each man had a right to his place in the established order according to his rank with its corresponding duty. So long as this condition of affairs gave satisfaction

to the most of men, it received the support of the most of courts. These special rights in special businesses met one at every turn in mediaeval trade and business. Almost all the crafts and manufactures were parcelled out by special franchises to various guilds and fraternities, each of which had exclusive right in its own field. So local trading and distant commerce was in the hands of the guilds merchant and trading companies each with an extensive monopoly by its original constitution. The same arrangements ordered activities within the manor. The course of husbandry and the rotation of the crops were regulated by an established system. The incidental ser vices like those of baker, miller, farrier and butcher, were provided for by exclusive franchises. Markets and fairs were estab lished for the sale of products and protected so that none might barter his goods else where during those periods. And of course hunting and fishing was preserved and reserved. Times change, however, and the laws with them; when the doctrines of the renaissance became current men were no longer content with the older restrictions which so hampered the advancement of the individual. So far as one case can evidence it, the turning point in our law was the School masters' Case in 1410 (Y. B. ir Hen. IV. 47. 21). The masters of a grammar school of Gloucester brought a writ of trespass against another master, and counted that the defendant had started a school in the same town, so that whereas the plaintiffs had formerly received 40 d. a quarter from each child, now they only got 12 d. to their damage. The counsel for plaintiffs con tended that this interference shown and this damage proved made a good action on the case; he cited many instances of exclusive rights including the claim of the