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The
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lution of law can be found in the reports than his consideration in the Maxim-Nordenfelt case, (1894) A. C. 535, of the appli cation of the old rule with respect to general restraint of trade under the changed condi tions of commerce and of the means of communication which have been developed in recent years. To disregard these changed conditions would be, he said, "to miss the substance of the rule in a blind adherence to its letter. Newcastle-upon-Tyne is for all practical purposes as near to London to-day as towns which are now regarded as suburbs of the metropolis were a century ago. An order can be sent to Newcastle more quickly than it could have been transmitted from -one end of London to the other, and goods can be conveyed between the two cities in a few hours and at a comparatively small cost. Competition has assumed altogether differ ent proportions in these altered circum stances, and that which would have been once merely a burden on the covenantor may now be essential if there is to be reasonable protection to the covenantee. . . . Whether the cases in which a general covenant can now be supported are to be regarded as exceptions from the rule which I think was long recognized as established, or whether the rule is itself to be treated as inapplicable to the altered conditions which now prevail, is probably a matter of words rather than substance. The latter is perhaps the sounder view. When once it is admitted that whether the covenant be general or particu lar the question of its validity is alike deter mined by the consideration whether it exceeds what is necessary for the protection of the covenantee, the distinction between general and particular restraints ceases to be a distinction in point of law." "It must not be forgotten," he adds, "that the com munity has a material interest in maintain ing the rules of fair dealing between man and man. It suffers far greater injury from the infraction of these rules than from con tracts in restraint of trade." Lord Herschell believed that it was a
judge's duty to interpret and adminis ter the law, not to make it. He was sturdily averse to the process of refinement, by means of which particular cases were withdrawn from the application of general rules. A strong illustration of this characteristic may be found in his opinion in the celebrated case of Russell v. Russell, (1897) A. C. 460, where it was sought to extend the legal doc trine with respect to cruelty in matrimonial relations so as to cover the facts of a par ticular case. "The only criterion of cruelty which I have heard suggested as warranting a judgment for the appellant," said Lord Herschell, "is whether the discharge of the duties of married life has become impossible owing to the conduct of the respondent. How is the word 'impossible' to be inter preted in the proposition thus stated? . . . If it be extended to what is sometimes called 'moral' impossibility, a proposition couid scarcely be conceived more elastic. It would afford no sort of guide, but would, in my opinion, unsettle the law and throw it into hopeless confusion. Views as to what is possible in this sense would differ most widely. . . . Not a few would think that the discharge of the duties of married life was impossible whenever love had been replaced by hatred, when insulting and galling lan guage was constantly used, when, in short, the ordinary marital relation no longer pre vailed. One opinion may be held by many that it would be well that in all such cases a judicial separation should be granted— that relief should always be given where the prospect of happiness so long as the parties cohabited appeared hopeless. But these are considerations for the legislature, not for the courts. . . . Our duty, on the present occasion, is to administer, not to make the law. I have no inclination towards a blind adherence to precedents. I am conscious that the law must be moulded by adapting it on established principles to the changing conditions which social development in volves. But marital misconduct is, unfor
