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CHAPTER IV

THE LEGAL STATUS OR CONDITION OF THE

BUSINESS MAN

$16. BUTCHERS' UNION COMPANY v. CRESCENT CITY COMPANY.

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Supreme Court of the United States. 1883. [111 U. S. 746.] FIELD, J.: . . As in our intercourse with our fellowmen certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all governmental action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: "We hold these truths to be self-evident” —that is, so plain that their truth is recognized upon their mere statement that all men are endowed"-not by edicts of emperors, or decrees of Parliament, or acts of Congress, but "by their Creator with certain inalienable rights"-that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime-"and that among these are life, liberty, and the pursuit of happiness, and to secure these"not grant them, but secure them-"governments are institutioned among men, deriving their just powers from the consent of the governed." Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance,

except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that, "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper."-Adam Smith's Wealth of Nations, Bk. I, Chap. 10. . The first section of the [14th] amendment is stripped of all its protective force, if its application be limited to the privileges and immunities of citizens of the United States as distinguished from citizens of the States, and thus its prohibition be extended only to the abridgement or impairment of such rights, as the right to come to the seat of government,

which are specified in the opinion in the Slaughter-House Cases, 16 Wall. 36, as the special rights of such citizens. If thus limited, nothing was accomplished by adopting it. The states could not previously have interfered with these privileges and immunities, or any other privileges and immunities which citizens enjoyed under the Constitution and laws of the United States. Whilst, therefore, I fully concur in the decision of the court that it was entirely competent for the state to annul the monopoly features of the original Act, incorporating the plaintiff, I am of opinion that the Act, in creating the monopoly in an ordinary employment and business, was to that extent against common right and void.

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§17. The "Right" of Engaging in Business.-The language used here by Mr. Justice Field is typical of the thought of many nineteenth century lawyers in America with reference to "natural" or super-legal rights. Are there any such rights sufficiently clear and ascertainable in their nature to claim recognition along with positive law, and if so, is the right to engage in business one of them? Here an attempt is made to interpret the Constitution of the United States as creating or recognizing such a right.

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WITHERLEY v. SARSFIELD.

Court of King's Bench, 1689. [1 Shower 125; Carthew 82.] [In defense to an action on a bill of exchange it was said that the defendant was a "gentleman" and not "merchant." On the other side it was argued as follows:]

Shower [arguing]:-Besides, the matter of this plea is ill, for it is repugnant in itself; for he admits himself to have drawn the bill, and yet traverses that he never was a merchant, whereas the bare negotiating of a bill of exchange makes him a merchant for that purpose; the very act of taking up monies in a foreign country, and undertaking for the repayment here by bill of exchange is such an act of merchandize as you will take notice of. Monies now are become merchandize, and some men's business is wholly in its exchange. The rates and profits of exchange are now certainly known: a man may be dealer or trader in one sort or kind, that is not so generally. Though he be not a trader so as to be capable of being a bankrupt, yet he may be a trader to oblige himself by his own act. The parliament in the last statute of bankrupts made a quaere whether a man that had a stock in a company was a trader, and therefore by express provision did except them. So that a little matter will make a man a trader. Besides, the inconveniency will be great both at home and abroad, and work a manifest wrong. If a bill be payable to him he has the advantage of it, though a gentleman, pari ratione he ought to be bound. If a traveller's bill drawn beyond sea shall not enforce a payment upon a protest our English gentry must suffer in their credit, when by their laws they are answerable, though not as merchants, and by ours must not. The necessity and usefulness of transferring money easily by bills of exchange commands all the encouragement imaginable; and therefore I prayed a reversal.

Hoil e contra. By their own showing he must be a merchant else not within the custom

HOLT, Chief Justice:

This drawing a bill must surely make him a trader for that purpose, for we all have bills directed to us, or payable to us, which must be all avoidable, if the negotiating a bill will not oblige, &c.

§19. "Ad hoc, a trader." Prior to the seventeenth century, the merchants in rural England were mostly foreigners. To engage in trade in England, they required a more or less special license involving many limitations, but generally giving the great boon of the right to be tried in a speedy, untechnical mer

chants' court in accordance with the universal custom of merchants. The merchants themselves were the authorities on their law and the procedure was more like a complaint to a marketmaster than like a resort to a court.' This practice explains the absence from our law books, prior to 1600, of mercantile cases. At the same time, it illuminates the foreign origin of the Law Merchant and incidentally the tendency it manifests to be uniform throughout the civilized world. In the seventeenth century a contest was being waged between the ordinary King's courts and these special courts, one result of which was to give the ordinary courts complete jurisdiction in the growing field of business. A corollary of this movement is illustrated in the above case: Not only is there one set of courts for all parts of the law, but one system of law for all types of people. The Law Merchant thus becomes a part of the ordinary law of the land."

At the same time this case shows a breaking down of the older theories of a distinction in the eyes of the law between traders and non-traders. The older law, as illustrated in the anonymous case of 21 Henry 6 (see below §49), imposed peculiar duties upon those engaged "commonly" or habitually in trades or professions. In the seventeen-hundreds and early eighteen-hundreds, this feature of the law had almost, if not entirely, disappeared excepting in the case of common carriers, common innkeepers and possibly members of certain professions. There is a marked tendency to revert to the older conception by means of licensing laws. But even in the absence. of such laws, the flexible expressions, "due care," "due diligence," and the like, have created a distinction between the duty of one engaged in a trade or profession and that of the non-trader under similar conditions. In the following case, for example, would it have made any difference had the defendant not been a professional dressmaker?

See the lively record of the court of the Fair of St. Ives in the thirteenth century, 2 Selden Society Publications, 130. On such courts in general see Gross, The Court of Piepowder, 20 Quarterly Journal of Economics 231; Select Cases Concerning the Law Merchant, 12701638; 23 Selden Society Publications (1908).

Isaacs, The Merchant and His Law, 23 Journal of Pol. Econ. 529.

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Supreme Judicial Court of Massachusetts, 1895.
[164 Mass. 537.]

[Goods were left with a dressmaker to be made up. The dress was made up on the wrong side.]

MORTON, J.: If the dress was delivered to the defendant by the plaintiff without any instructions, the defendant, being a bailee for hire, was held to that degree of skill and care in the particular occupation in which she was engaged, which was that of a dressmaker, which would enable her to do the work intrusted to her in a reasonable and proper manner. Jackson v. Adams, 9 Mass. 484. Story, Bailments, Sec. 431, and cases cited. Her understanding that it was a proper way to make the dress up wrong side out would be immaterial, therefore, if in the exercise of a proper degree of skill and care the dress ought not to have been made up in that way.

So much of the instruction requested as related to the matter of estoppel was also clearly erroneous. It made the plaintiff's knowledge that the dress was being made up wrong side out the sole test. But in order to justify the jury in finding an estoppel, it was necessary that there should be evidence tending to show that the defendant was induced by the plaintiff's conduct to do something different from what she would otherwise have done, and that the plaintiff knew or had reasonable cause to know that the defendant would so act. Tracy v. Lincoln, 145 Mass. 357. Stiff v. Ashton, 155 Mass. 130. The instructions requested omitted this element. We doubt also whether the evidence would have warranted a finding that there was an estoppel. The jury have negatived the claim of the defendant that the plaintiff gave her instructions to make the dress up wrong side out. The defendant had begun to make the dress before the plaintiff saw the garment, and it does not appear that she was induced to make it up wrong side out in consequence of anything that the plaintiff said or did, or omittel to say or do.

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The remaining instruction was also rightly refused. defendant offered to put the interlining in, and the plaintiff thereupon said that if she would put the interlining in and fix the collar she would accept the suit. It does not appear that this proposition was accepted by the defendant before it was withdrawn by the plaintiff.

We discover no error in the instructions as given, or in the refusals to rule as requested. Exceptions overruled.

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