The majority escaped the difficulty of defining the word "public" with the observation that they could "best explain by examples," followed by a list of particular businesses commonly spoken of as public. The whole difference between the two branches of the court is to be explained by the fact that one looks wholly at the supposed public or private nature of the business, and the other at the power of governmental regulation, these things being assumed to have some necessary interrelation. The case is but an instance of the vicious circle which permeates the reasoning of most of the decisions dealing with business regulation. You may regulate a business if it is public, and it is public if it may be regulated. Or, it is public "if all the public have a right to demand and share in it," and if the public have not this right it is not public.

The fundamental difficulty lies in the conception that business is of two classes, public and private, and that the latter is subject to no duties to the individual and none to the state. This conception was developed and has been perpetuated largely through the law of common carriers. "Common" in this connection was assumed to mean "public," public in the sense of "subject to control by the state." It was recognized that originally there were other "common" employments, but it was stated that they also were under peculiar public duties and this was explained on the basis of some exceptional relation to the public. It has been said:

"From the earliest times certain tradesmen and artificers were treated in an exceptional way, on the ground that they were engaged in a 'common' or public occupation; and for a similar reason public officers were subjected to the same exceptional treatment. Such persons were innkeepers, victuallers, taverners, smiths, farriers, tailors, carriers, ferrymen, sheriffs, and gaolers. Each of these persons, having undertaken the common employment, was not only at the service of the public, but was bound so to carry on his employment as to avoid losses by unskilfullness or improper preparation for the business." 28

But no evidence of such exceptional relation has been produced. It was the duty of every artificer "to exercise his art rightly and

28 Beale, The Carrier's Liability: Its History, II HARV. L. REV. 163. This also seems to have been the view of Professor Ames (History of Assumpsit, 2 HARV. L. REV. 1, 3) and of Mr. Justice Holmes (The Common Law, Lecture v, Bailments).

truly as he ought." 29 The Statute of Labourers,30 so called, included "those that make carriage by land or water" as well as innkeepers, shoemakers, saddlers, goldsmiths, horsesmiths, spurriers, and all manner of artificers and laborers. In such a general enumeration we should expect some differentiation between exceptional employments and others, but we find none. There is, in fact, nothing exceptional in the occupation of carriage or peculiar to it except the fact that the relative position of carriers in society has advanced enormously in importance.31 The carrier solicits public favor and professes to deal with all who come, but so does the ordinary trader. Bailment is incidental to the business of carriers and innkeepers, but no more so than to the business of the keeper of a warehouse, a garage, or a repair shop. The carrier is now an insurer, but four hundred years elapsed between the first mention of common carriers in our books and the formulation of this rule.

This theory of the exceptional nature and responsibility of stated common employments naturally required an explanation of

29 Fitz-Herbert, Natura Brevium, Hale's ed., p. 214.

30 25 Ed. III., Stat. 1, A. D. 1350: ". . . Wherefore be ordained and established the things underwritten; that is to say... that they that make carriage by land or by water, shall take no more for such carriage to be made, than they were wont the said twentieth year and four years before: also that cordwainers nor shoemakers shall not sell boots nor shoes, nor none other thing touching their trade, in any other manner than they were wont the said twentieth year. And that goldsmiths, saddlers, horsesmiths, spurriers, tanners, curriers, tawers of leather, taylors, and all other workmen, artificers and labourers, and all other servants not specified, shall be sworn before the said justices, to do and sue their crafts and offices in the manner as they were wont to do the said twentieth year, and in the time before, without refusing the same because of this ordinance. And if any of the said servants, labourers, workmen, or artificers, after such oath made, do contrary to this ordinance, he shall be punished by fine, ransom, and imprisonment, according to the discretion of the said justices. And that the said justices have power to enquire and make due punishment of the said ministers, labourers, workmen, and other servants whatever, and also of hostlers, herbergers, and of those that sell victual by retail, and other things not specified, as well at the suit of the party, as by presentment, and to hear and determine, and put these things in execution by exigent after the first capias, if need be, and to depute other under them, so many and such as they shall see best for the keeping of this present ordinance. . . ."

31 The earliest carriers were porters, boatmen, and the like. See Beverley Town Documents (Selden Society), p. 22, dealing with the period 1300-1600, where there is a reference to the reading of "the old order of porters, and creelmen and other common carriers,' "aliis communibus cariatoribus." This is one of the earliest instances of the use of the precise term common carrier."

66

why, for example, smiths, farriers, and the like are not now engaged in a common or public employment, and this has been attempted on the basis of monopoly,32 - economic changes having altered the position of the smith and farrier in society, while that of the carrier and innkeeper has remained the same. But the theory does not bear analysis. It seems reasonable that a modern apartment house should be under different responsibilities from an ordinary hotel. One can understand also that a tap line or a railroad built on private property to carry freight from one building to another of a manufacturing plant should be under different responsibilities and duties from a road between Buffalo and New York. But one is not necessarily more of a monopoly than the other, and it is therefore difficult to see why, on that ground, one should be classed as public or common and the other as private. The essence of privacy is monopoly. The explanation is even less satisfactory if we go farther back. No distinction based upon monopoly between a private and a common carrier prior to the year 1600 has been set forth, and no explanation has been offered as to why an innkeeper should choose the monopoly (if any) of a common inn in preference to a private inn, free from the duties of a common innkeeper, and certainly no evidence is at hand of the existence of

82 Beale & Wyman, Railroad Rate Regulation, chap. 1, § 12. "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 guilds 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 because of a change of legal principle but because of a change in actual economic conditions."

33 It was only the common innkeeper who was subject to peculiar duties. See Anon., Palmer 367 (21 Jac.), being an indictment for putting up a sign and keeping an inn, on the ground of nuisance. It was resolved "that it is lawful for any subject to erect a common inn and sign; and for this reason that he who erects a sign, 'charge luy mesme al republique""; and it was held that "every one who comes if he requires lodging shall have action on the case if this is denied." It was also held "that if the hostler pulls down his sign he is not bound to 'herberger,"" unless as Lee, Chief Justice, said, "he keeps and continues a common inn after the sign is destroyed."

luxurious hotels where people of wealth made their homes in 1600, - the basis of the distinction at present made between common and private inns.

When we consider the principle of monopoly as producing in the early days the supposed distinction between classes of callings, its failure is clearly apparent, for no evidence of any kind is offered that carriers were less numerous than butchers, or that innkeepers were fewer than carpenters, or barbers than weavers. Tailors were no less numerous than fullers, so far as the evidence goes, and they were, in 1400, numerous enough in Beverley to have a guild of their own.34 So were the barbers and surgeons, and it is noteworthy that the guild at that time provided for a tax upon itinerant surgeons who were in the town over eight days. Monopoly, therefore, cannot be accepted as an explanation of the distinction between public and private callings, either at present or in the distant past, for it does not explain the distinctions within a calling or account for the difference supposed formerly to exist between such tradespeople as innkeepers and tailors, and such as carpenters and brewers, and it fails to account for the present-day difference in the treatment of a city hotel, struggling under competition, and a coal company absolutely controlling the coal supply of a city or state.

The reason for this failure is neglect of the facts. Common carriers were not anciently contrasted with carpenters or mercers or drapers. It is a mistake to suppose that the instances of the innkeeper, victualler, taverner, smith, farrier, tailor, carrier, and ferryman are in any way exceptional as regards their public character. From the earliest times one who was engaged in a given occupation as a business was described as being in a common mployment, otherwise the employment was private. In Leet Jurisdiction of Norwich 35 during the period 1374 to 1391 are to be found instances of the common purchaser, common merchant, common huckster, common brewer, common fripperer, common cooker-up, common touter. In the Year Books we have the common inn or innkeeper,36 common merchant,37 common mareshal,38 common

34 See Beverley Town Documents, supra, pp. 45, 75, 100, 102.

35 Selden Society Pub.

36 Y. B. 2 Hen. IV. 7, pl. 31; Y. B. 9 Hen. IV. 45, pl. 18; Y. B. 22 Hen. VI. 21, pl. 38; Y. B. 5 Ed. IV. 2, pl. 20.

37 Y. B. 7 Hen. IV. 44, pl. II.

38 Y. B. 19 Hen. VI. 49, pl. 5.

school-master,3 39 common tavern,40 41 common surgeon. In the Beverley Town Documents 2 are to be found the common shaver, common bellman, and common makers and venders. In the later books we find the common farrier, common carrier," common hoy

39 Y. B. 9 Ed. IV. 32, pl. 4.

40 Y. B. 21 Ed. IV. 19, pl. 22.

41 Y. B. 9 Ed. IV. 32, pl. 4. The meaning of the term is aptly illustrated by the Statute 34 & 35 Hen. VIII. (1542–3), ch. 8, entitled,

"An Act that Persons, being no common Surgeons, may
administer outward Medicines.

"Where in the Parliament holden at Westminster in the third year of the King's most gracious reign, amongst other things, for the avoiding of sorceries witchcrafts and other inconveniences, it was enacted, that no person within the city of London, nor within seven miles of the same, should take upon him to exercise and occupy as physician or surgeon, except he be first examined approved and admitted by the Bishop of London and other, under and upon certain pains and penalties in the same act mentioned; sithence the making of which said act, the Company and Fellowship of Surgeons of London, minding only their own lucres, and nothing the profit or ease of the diseased or patient, have sued troubled and vexed divers honest persons, as well men as women, whom God hath endued with the knowledge of the nature kind and operation of certain herbs roots and waters, and the using and ministring of them to such as been pained with customable diseases, . . . and yet the said persons have not taken any thing for their pains or cunning, but have ministred the same to poor people only for neighborhood and God's sake, and of pity and charity. And it is now well known, that the surgeons admitted will do no cure to any person, but where they shall know to be rewarded with a greater sum or reward than the cure extendeth unto; . . . for although the most part of the persons of the said craft of surgeons have small cunning, yet they will take great sums of money and do little therefore, and by reason thereof they do oftentimes impair and hurt their patients, rather than do them good:

"In consideration whereof, . . . be it ordained established and enacted, by authority of this present Parliament, That at all time from henceforth it shall be lawful to every person being the King's subject, having knowledge and experience of the nature of herbs roots and waters, or of the operation of the same, by or within any other the King's dominions, to practice use and minister in and to any outward sore uncome wound apostemations outward swelling or disease, any herb or herbs, ointments baths pultess and emplaisters, according to their cunning experience and knowledge in any of the diseases sores and maladies beforesaid, and all other like to the same, or drinks for the stone strangury or agues, without suit vexation trouble penalty or loss of their goods; . . ."

42 Selden Society Pub.

43 Fitz-Herbert, Natura Brevium, Hale's ed., p. 214.

Rogers v. Head, Cro. Jac. 262 (1611); Matthews v. Carrier, etc., 1 Keb. 852 (1663); Owen v. Lewis, 3 Keb. 39 (1673); Sparrow v. Neal, 3 Keb. 278 (1674); Anon., 12 Mod. 3 (1691); Darlston v. Hianson, Comb. 333 (1696); Tyly v. Morrice, Holt 9 (1700); Skinner v. Upshaw, 2 Ld. Raym. 752 (1702); Coggs v. Bernard, 2 Ld. Raym. 909 (1704).