alleged and proved that he had convenience to carry the same; and the plaintiff had a verdict."

Again the explanation must be sought in the history of the times. In Plantagenet England the population lived in communities apart from each other, so that small attention was paid to the roads, which were no more than trails winding through the wilderness. No cart could pass over them, only pack animals, and so many were the bands of outlaws in the greenwood that no man might with safety traverse these paths alone. The transportation of goods was, therefore, given over to the carrier, who travelled oftentimes with trains of pack animals and a considerable company. It was also the fact that one carrier or few would thus pass over the same roads between the same towns, because the traffic was still comparatively small, as England had not yet changed from a local economy where each community was sufficient to itself, into a national economy which involved interchanges of goods between distant markets. The conditions surrounding transportation were those of virtual monopoly. The merchant had therefore the protection of the law, a protection without which he was at the mercy of the carrier with whom circumstances forced him to deal without a chance for choice. 12

Another reason why cases against innkeepers and carriers appear in our earlier reports of cases from the King's Courts while there were no cases against weavers or spinners for example, was because innkeeping and carrying were no part of the gild system in the towns, nor of the manorial system in the country; those who conducted these businesses, therefore, were free from regulation by peculiar law and special courts, and it became necessary for the common law and the national courts to take charge of the situation for the protection of the public.

12 See Rich v. Kneeland, Hob. 17; Kenrig v. Eggleston, Al. 93; Nichois v. More, 1 Sid. 36; Morse v. Slue, 1 Vent. 190.

TOPIC B. -PERSISTENCE OF STATE REGULATION.

§ 11. Partial continuance of regulation to modern times.

The irresistible advances of the modern competitive system gradually worked the destruction of the medieval organization of industry. Great, however, as was this change from the old economic theory to the new, it was not complete. There had been no revolution, but merely a swinging of the pendulum. General but not absolute restriction of the freedom of trade was the policy of the middle ages; general freedom of trade, with the restriction of certain exceptional occupations, has become the policy of modern times.

It is almost a truism that the spirit of the age molds its law. This is obviously true of that small proportion of the law which is made in the form of statutes by a legislature. But it is true as well of unwritten' law, of which the decisions of courts are at once the cause and the evidence. The briefs are drawn and the arguments are made by members of the bar, and the decisions are reached by the judges; and judges and lawyers alike are members of the community and share its spirit and its thought. The age's ideal of right is their ideal, the method of thought about justice which is prevalent at the time is their method of thought, too; and it therefore follows that in working out legal problems, both bench and bar work along the lines prescribed by the spirit of the age in which they live.

Nowhere is the influence of the spirit of the time on the common law more evident and more potent than in this question of the regulation of common trades. Following the change in economic thought which has been described, the judges in modern days have been saying as to the ordinary activities of life, that it lies with the tradesman to conduct his business as he pleases, and at his own price. Not so, however, in those exceptional trades which are known as the common callings. In the case of these callings, the law continues to regulate them as it

has done in the past; and those who undertake to carry on such callings continue to be compelled to serve all that apply at a reasonable rate. The regulation of rates in the common or public callings by the government by means of the common law is therefore the persistence of a power which the State has exercised from ancient times to regulate prices when it is necessary for the protection of the public from extortion. In earlier times, when most trades were privileged, there was a correspondingly great amount of regulation. Today when in most businesses the field is free to all, it will be true generally that the ordinary processes of competition will produce with more or less certainty adequate supply at fair prices. But in the businesses affected with a public interest there will be found usually a virtual monopoly; so that it will be necessary for the law to see to it that the public are properly served at reasonable rates.

§ 12. Persistence of principle accompanying change of conditions.

It will be noticed that the principle of law which permits the regulation of these callings has not been abandoned in the smallest degree, though the conditions calling for its application in modern times have greatly changed. Whenever the public is subjected to a monopoly, either because of legal grant, as in the case of the medieval gilds and markets, or because of the actual conditions of life, as in the case of the village surgeon or smith, the power of oppression inherent in a monopoly is restricted by law-whether by the common law, applied by the courts or by special legislation. Whenever on the other hand competition becomes free, both in law and in fact, the need of governmental regulation ceases; public opinion ceases to demand. such regulation, and the law withdraws it. In this way certain of the trades and classes of trades just enumerated having become competitive, the law has ceased to regulate them, not be

cause of a change of legal principle but because of a change in actual economic conditions.

13. Applications of the principle to commodities in new countries.

An interesting application of this principle in modern times by means of legislation occurred in the American colonies at the time of their settlement. In a new colony life is a serious thing, the necessaries of life are scarce, and the needs of the public are pressing. The conditions are ideal for a distressing "cornering of the market" by merchants. Accordingly, though most of the statutory regulations of trades and prices had either been repealed or had become obsolete in the mother country, the colonies at an early time passed statutes regulating the prices of staple commodities. Thus in Massachusetts the price of bread was regulated in 1646;1 the packing of beef and fish in casks was regulated at about the same time; the price of beer in 1645;3 the price of labor as early as 1630.* In 1635 shopkeepers and merchants were forbidden to charge excessive prices. In Plymouth colony the price of beer was limited in 1636, and the price of boards in 1668. In Virginia the price of tobacco was fixed. As it was in those colonies so it was probably in every one. Corn and tobacco, beer and bread, beef and boards, all that was most important for the colonists to have was regulated as a matter of course by the assemblies of the time.

1 Mass. Colonial Laws (1672), p. 8; and see Ancient Charters & Laws,

p. 752 (Act of 1720).

2 Colon. Laws, p. 16.

3 Ibid, p. 80.

4 Ibid, p. 104.

5 Ibid, p. 120; see, also, the Act of 1675, ibid, p. 236.

6 Plymouth Colony Laws, p. 46.

7 Ibid, p. 156.

14. Monopolies established by patents from the crown.

Toward the end of the Sixteenth century the grant of patents to reward some favorite or other was becoming so great an abuse as to shock the public conscience. The judges as usual were influenced by this public feeling; they could not but see the discrepancy between the general theories then current and the too frequent practices of their sovereigns. They could not but recognize the change in the theory of society. They knew as all knew that free competition was to be the basis upon which the industrial order of the future was to be founded. To them therefore the growing practice of the Tudor sovereigns in granting monopolies by patent to deal in this and that commodity, oil, yarn, glass and tin, and even in leather, paper, coal and steel, came as a great shock. They chafed at being obliged to recognize these grants, knowing that the undercurrent of public opinion was against monopoly; though there was, no doubt, some policy in these grants to encourage and promote new trades and large enterprises, whereby the system of patents might have been defended, if people would have listened.

The great Case of Monopolies shows an extraordinary prejudice against that infamous patent of the crown granting the sole making of cards within the realm to some favorites of her Majesty. So outraged was the court when this patent was pleaded that they were led to defy even a Tudor sovereign in the exercise of her undoubted prerogative, and to decry monopolies. Popham, Chief Justice, and the whole court resolved, to quote some of their own words: "That it is a monopoly, and against the common law. All trades as well mechanical as others which prevent idleness (the bane of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance to serve the Queen when occasion shall require are

8 Darcy v. Allen, 11 Rep. 84 (1603).