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. § 8. 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. 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. § 8. 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. want of a shoe if the wayside smith should take it into his head to refuse to serve.8 § 9. The innkeeper as an illustration. One of the most noteworthy of the common callings by the early law was that of the innkeeper. In another anonymous report in 1460,9 Moile, Judge, is quoted as saying: “If I come to an innkeeper to lodge with him, and he will not lodge me, I shall have on my case an action of trespass against him; and in the same way if I come to a victualler to buy victual, and he will not sell, I shall have an action of trespass on my case against him; and still in such cases if he will bring a writ of debt against me on such duty I shall have my law." This stands to the present day as the law of the land The innkeeper is in a common calling under severe penalty if he do not serve all that apply, while the ordinary shopkeeper is in a private calling free to refuse to sell if he be so minded. The surrounding circumstances must again explain the origin of this unusual law. When the weary traveller reaches the wayside inn in the gathering dusk, if the host turn him away what shall he do? Go to the next inn? It is miles away, and the roads are infested with robbers. The whole system of travel and communication in rural England, at the time the law of inns was in the making, required, as has been seen, that the weary traveller should find at convenient places beside the highway houses of entertainment and shelter to which he might resort during his journey for food, rest and protection. The ordinary laws of supply and demand would lead to the establishment of such houses by the roadside at places which would sufficiently serve the public convenience; but those laws could not be trusted to secure to each individual 8 See Y. B. 46 Ed. III, 19 pl. 19; Y. B. 2 Ed. IV, 13 pl. 9; Y. B. 22 Ed. IV. 9 pl. 15; Y. B. 21 H. VI, 55 pl. 12; Keilway 50, pl. 4. 9Y. B. 39 H. VI, 18 pl. 24. the benefit of the food and shelter therein provided. The desire for gain is not the only passion which moves men, innkeepers or others. Hatred, prejudice, envy, sloth or undue fastidiousness might influence an innkeeper to refuse entertainment to a traveller, even though he could pay his score. The supply of food and shelter to a traveller was a matter of public concern, and the house which offered such food and shelter was engaged in a public service. The law must make injustice to the individual traveller impossible; the caprice of the host could not be permitted to leave a subject of the king hungry and shelterless. In a matter of such importance the public had an interest, and must see that, so far as was consistent with justice to the innkeeper, his inn was carried on for the benefit of the whole public; and so it became in an exact sense a public house.10 § 10. The carrier as an illustration. 66 From the earliest times it has been agreed that the common carrier of goods is in a public employment. A statement of the early law is to be found in one of the leading cases on carriers, Jackson v. Rogers, 11 in 1683. " This was an action on the case, for that whereas defendant is a common carrier from London to Lymmington et abinde retrorsum, setting it forth as the custom of England, that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by Jeffries, C. J., that the action is maintainable, as well as it is against an innkeeper for refusing a guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. Note, that it was 10 See Y. B. 11 H. IV, 45 p. 8; Y. B. 22 H. VI, 21 pl. 38; Y. B. 22 Ed. IV, 49 pl. 15; Y. B. 10 H. VII, 8 pl. 14; Y. B. 14 H. VII, 22 pl. 4; Keilway 50 pl. 4. 11 2 Show. 23. |