development, hardly affected as yet by the modern ways of arranging things which were just in their beginnings. The older policy had been one of almost universal regulation. Most of the trades in the towns were restricted by the gild system. Under this system the services to be rendered to the public in the trades were governed by certain codes of by-laws; but these by-laws were continually declared void by the local courts if they were oppressive. In the country at the same time there were to be met certain privileges in carrying on business in connection with the manorial system. Some businesses required the investment of more or less capital in constructing a plant, as the bake-house and the mill. It had been necessary at the outset that these should be provided by the lord of the manor and the seignorial ban covered these, the lord granting franchises to certain persons. Those who conducted these businesses were bound to serve all fairly or answer for it to the courts of the manor. But upon the whole the ordinary trades and crafts were more freely open to any one in the country than in the towns, with their craft gilds and merchant gilds.

The fundamental principles in the mediaæval order, taken as a whole, were, therefore, the establishment of special privileges and the consequent system of State regulation, both in respect to service and in respect to price; and it is clear upon all the evidence that these principles of State regulation were put into practice by the special tribunals and the regular courts in a thorough and intimate manner. For these reasons the mediæval system may well be described as a consumer's policy. Under the medieval system industrial activity was limited by various restrictions. The ideal held was a society in which all things were ordered. The conception was that every man had a right to a place in this established order according to his rank, a state of affairs by most men desired. Each person was held bound to perform his own part; no person, therefore, should be allowed to interfere with the employment of another.

Of course, the modern theory is altogether different. A state of free competition is considered to be for the best interests of society; and, therefore, in our time almost every business is open to almost every man. And yet at all times in economic history both restriction and freedom are to be found in the law. The proportion, however, changes greatly. In one epoch there is much legal limitation, with little freedom left; in another age there is almost universal competition, with some little franchise to be found. And the rule will generally hold true that the more the natural laws of competition regulate service and price, the less the State need interfere in these respects; but conversely when competition ceases to act efficiently State control becomes necessary.

§4. Parliamentary regulation of rates.

Not only did the law regulate business indirectly, through the courts, parliament itself frequently regulated prices of necessaries of life by direct legislation. The great staples, like wool and food, were habitually regulated in this way, and the employment and the price of labor was a subject of statutory provision. Thus, in 1266, Henry III., after reciting former statutes to the same effect, regulated the price of bread and ale according to the price of wheat and barley, and forbade forestalling; that is, cornering the market. In 1344 the ordinances fixing the export prices of wool were repealed after some years of trial. In 1349 all laborers were obliged to serve for the customary wages, and "butchers, fishmongers, regrators, hostelors (i. c., innkeepers), brewers, bakers, poulterers, and all other sellers of all manner of victuals," were bound to sell for a reasonable price. These statutes continued in force throughout the middle ages, and until after the settlement of America.

3

151 Hen. 3, Stat. 1.

218 Ed. 3, cap. 3.

323 Ed. 3, cap. 1.

§ 5. Examination of early public employments.

Since the modern law of public employments is a survival of a much more generally applicable principle of the mediæval law, it will be instructive to examine some of the early applications of the medieval principle, which involved the recognition of the common calling as a thing apart from the private calling, presenting different conditions, and involving the necessity therefore of further law than that which suffices to regulate ordinary businesses. In these earliest examples there are certain elements in the situation which are so characteristic that the realization of them should lead to some conception of the nature of the public employment and the law necessary for its regulation. It would be too much to expect to see the law finally settled in those times, to find modern aspects of the problem altogether anticipated; but it is not too much to hope to discover some meaning in the cases, some definition of the first principles involved in the law of public employment.

§ 6. The common surgeon as an illustration.

One decision in point is an anonymous suit in 1441. This was a writ of trespass on the case against one R., a veterinary surgeon, to the effect that the defendant had undertaken to cure the plaintiff's horse with skill and care of a certain trouble, and that he then so negligently and carelessly gave medicines that the horse died. In the opinion of Judge Paston may be seen the ground upon which the court proceeded: "You have not shown that he is a common surgeon to cure such horses, and therefore although he has killed your horse by his medicines, you shall have no action against him without an assumpsit." The court accordingly decided that a traverse of the assumpsit made a good issue. The significance of the assumpsit in those days was that when one man had authorized another to deal with

4 Y. B. 19 H. VI, 49, 5.

personal property in the course of private business, the latter was under no legal liability to use care, unless he had made such a special undertaking and entered upon the performance of it. In the public businesses on the other hand the legal obligation to perform the act with proper skill was well established.

In England of the fifteenth century such professional men were few. This was in part due to the rudeness of the time, which made education unusual, and produced more necromancers than physicians. It was in part to be traced to the restrictions which the medieval system had put upon the practice of the profession. At all events, in the common case only one surgeon would be at hand in any one district, so that if he should refuse to bleed the patient, all might be lost. Such being the situation, it is easy to understand why the law was so stern in the case of the common doctor who undertook to cure all who came, requiring him to act with care although he promised none, and giving the patient an action although he had submitted himself to the operation, if the doctor was negligent. It was the unusual situation which produced this extraordinary law.5

§ 7. The tailor as an illustration.

Some light upon the position of the medieval tailor before the law we obtain from an opinion of Brian: "I know well, if I put a robe with a tailor to be made, or if I come to a common inn or a common smith with my horse, in all cases of the sort I may have my robe lying in the tailor's shop as long as I please (without its being subject to distraint); for he is compelled by the law to do it, and he may by the law detain until he be satisfied for the making."

5 See Y. B. 43 Ed. III, 6, pl. 11; Y. B. 3 H. VI, 36, pl. 33; Y. B. 19 H. VI, 49 pl. 5; Y. B. 11 Ed. IV, 6 pl. 10; 1 Roll. Abr. 10 pl. 5; Slater v. Baker, 2 Wils. 359 (1767); Sears v. Prentice, 8 East, 348 (1807).

6 Y. B. 22 Ed. IV, 49 pl. 15.

It is rather surprising to the modern mind to imagine a state of society where there was not competition enough among tailors. There has been free and lively competition for so long that the tailor at a very early time dropped from the list of public callings and is mentioned in the books no more as a member of this exceptional class of public servants.

88. The smith as an illustration.

Another instance in shown in an anonymous note in 1450:7 "Note that it was agreed by all the court that where a smith declines to shoe my horse, or an innkeeper refuses to give me entertainment at his inn, I shall have an action on the case, notwithstanding no act is done; for it does not sound in agreement. But where a carpenter makes a bargain to build me a house and does nothing, no action on the case, because that does sound in agreement." The meaning of this is that in those days no action lay upon a mere agreement, and a promisor need not perform; but that one who undertook a public employment must perform, whether he agreed or not. Here again the obligation resting upon those in common callings to serve all that apply is the basis of the case.

Why is this entire distinction made between the wayside smith and the journeyman carpenter? Because again the economic conditions of these trades were so different. So far apart were they in the eyes of the courts, that the ordinary law was protection enough for those that dealt with the carpenter, while an extraordinary law was needed in behalf of those that came to the smith. There were builders enough to make the situation in that business one of virtual competition, so that there was no hardship; but the farriers were so scattered that the conditions were those of virtual monopoly, which required therefore a special code, else a good horse might be ruined for

7 Keilway 50, pl. 4.