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poses of practising lawyers, but for legislators, and students of political science.
In order to fully comprehend the law of to-day on this subject, it will be necessary to some extent to examine its previous history, through the different stages of its development, in England and in this country.
Before, however, beginning such an examination, it is well to call attention to one fundamental distinction. That distinction is the one which exists between private property and private employments, on the one hand, and a class of property and employments which are correctly termed public, on the other, although the title to that property be not vested in the state, and the employments be not those of ordinary public officials. Reference is here had, of course, to railroads, to all classes of public highways, and to all classes of common carriers, innkeepers, and the keepers of public resorts. From a very early period, the state has exercised control, in one form or another, over innkeepers and common carriers, from the necessities of the situation, without reference to any other fact than that their employments were quasi-public, and that state control, to some extent, was necessary for the full protection of the ordinary citizen. Such control did not rest on the fact that innkeepers and common carriers held any franchise, or any property, derived from the state, or, so far as my reading goes, from any fact other than those just stated. In later years, common carriers by steam and rail have found it necessary, in order to construct their roads, to use the right of eminent domain, with other special rights and privileges conferred by the state. This fact has furnished an additional reason, in their case, for holding that they are subject to state control, in the use of their rights, privileges, and property. But in cases where there is an entire absence of any grant, or franchise, or other property, directly conferred by the state, we still find that these properties and employments have for a long time been subject to some form of state control, by virtue of their public nature. Such common carriers are virtually public servants, occupying and operating the people's highways. For every reason, therefore, it becomes necessary that they should be subject to state control. The same reasons generally apply to telephone and telegraph companies, to gas and electric light companies, to ferry companies, to turnpike, plank road, and bridge companies, to the owners of elevators, to companies for owning and operating tramways, pipe lines for oil and gas, and waterworks. They are all public, in their nature and uses ; and nearly all of them exist, and get their property, or part of it, by some form of grant from the state.
As to property and employments of this public nature the tendencies and growth of the law are in a precisely opposite direction from those which apply to ordinary private property and employments. In early times, the interests of these common carriers were of comparatively slight importance. In recent times they have increased to an enormous extent. The railroad employees alone in this country number upwards of a million of men. The number of individuals engaged in other employments of the same general nature is very large. Public control, of these properties and employments, has become a greater necessity than ever, in the face of their intimate connection at every point with the daily life of the community.
Public control, with these properties, has taken the form of control, both of the use of the properties, and of the prices of such use. Such control is a necessity. It is recognized as such by all competent judges. It has its legitimate province, and its legitimate limitations. It appears to be increasing, rather than decreasing. The reason is, that the public necessities demand such in
This distinction, between public and private properties and employments, will be found to be fundamental. It lies at the bottom of all sound legislation for the regulation of properties and employments of all kinds. Especially it will be found to constitute the essential and conclusive reason in favor of state control of all public employments, and in opposition to state control, and all attempts to interfere with the fullest freedom of contract, as to all private property and private employments.
THE COURSE OF THE ENGLISA LAW AS TO STATE CON
TROL OF PRIVATE EMPLOYMENTS.
In the early stages of English parliamentary government, we find a large number of statutes which put restrictions of many kinds on the freedom of the individual citizen, but especially on his right to choose his own field of labor, and his right to make his own price for his own labor and merchandise. In time, as has been stated, all these restrictions came to be practically ignored ; and most of them were formally abolished by a repeal of the statutes in question. The intention, as evidenced by the later statutes, was to repeal all. But many of the ancient statutes creating those restrictions remained unrepealed until a very recent date.
In order to get an adequate idea of the progress of the English law in this respect, it will be necessary to go into some degree of detail. And in order to get a complete idea of the character of such legislation, it is important to examine those statutes with some thoroughness.
The Statute of Labourers is the first one which calls for our attention. It will be necessary, in order to present satisfactorily the quality of the legislation embraced therein, to give it verbatim. It is as follows :
“ The Statute of Labourers, made 23 Edw. III. and Anno Dom. 1349.(a)
(a) 2 Pickering's Statutes, 26. All the English statutes here quoted are from Pickering's edition.
“ EDWARD by the grace of God, &c. to the reverend father in Christ, William, by the same grace archbishop of Canterbury, primate of all England, greeting. Because a great part of the people, and especially of workmen and servants, late died of the pestilence, many seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive excessive wages, (2) and some rather willing to beg in idleness, than by labour to get their living ; we, considering the grievous incommodities, which of the lack especially of ploughmen and such labourers may here. after come, have upon
deliberation and treaty with the prelates and the nobles, and learned men assisting us, of their mutual counsel, ordained :
- CAP. I.
“Every person able in body under the age of sixty years, not having to live on, being required, shall be bound to serve him that doth require him, or else committed to the gaol until he find surety to serve.
That every man and woman of our realm of England, of what condition he be, free or bond, able in body, and within the age of threescore years, not living in merchandize, nor exercising any craft, nor having of his own whereof hc may live, nor proper land, about whose tillage he may himself occupy, and not serving any other, if he in convenient service (his Estate considered) be required to serve, he shall be bounden to serve him which so shall him require. And take only the wages, livery, meed, or salary, which were accustomed to be given in the places where he oweth to serve, the XX. year of our reign of England, or five or six other common years next before. Provided always, That the lords be preferred before other in their bondmen or their land tenants, so in their service to be retained : so that nevertheless the said lords shall retain no more than be necessary for them. And if any such man or woman, being so required to serve, will not the saine do, that proved by two true men before the sheriff or the bailiffs of our sovereign lord the King, or the constables of the town where the same shall happen to be done, he shall anon be taken by them or any of them, and committed to the next gaol, there to remain under strait keeping, till he find surety to serve in the form aforesaid.
" CAP. II.
“If a workman or servant depart from service before the time agreed upon, he shall be imprisoned.