The common law right to earn a living.

• Author: Sandefur, Timothy

The monopolizer engrosseth to himself what should be free to every man.

--Sir Edward Coke (1)

At the common law," wrote William Blackstone, "every man might use what trade he pleased" ([1765] 1979, 1:415). This seemingly innocuous phrase, dropped offhandedly into a chapter on the obligations of master and servant, hints at a rich common-law tradition that has in large part been ignored, or even denied outright, in more modern scholarship. In fact, since the New Deal, the prevailing view among legal scholars has been that the right to earn an honest living as one chooses, without government interference, does not exist at all and that the "Lochner era" (1906-37), when the Supreme Court struck down numerous state laws infringing on this right, was a time of judicial usurpation during which the Court merely invented this right without precedent or legitimacy. Consider, for example, the words of one scholar quite representative of most legal scholars today:

I do not count the Supreme Court decisions defending contract or property rights from state regulations as Bill of Rights decisions. None of these cases represents a defense of civil liberties. The Court merely used libertarian philosophy to protect the wealthy from progressive legislation. The Court eventually rejected these economic liberty decisions because they were not connected with the text of the Constitution or any philosophy with roots in the history and traditions of our nation and its democratic process. (Nowak 1992, 452) My research, however, reveals that this prevailing view is incorrect. In fact, the right to earn a living was protected at common law as far back as the Magna Carta (1215), and the decisions that voided economic regulations actually rested on solid historical ground. The economic substantive-due-process cases did not announce principles unknown to legal history, nor were the judges who accepted this doctrine legal interlopers going beyond reasonable readings of precedent. Instead, the New Deal's repudiation of protections for economic liberties was the new, ahistorical reading of the law and one that has proven itself to be fallacious and dangerous.

Before Lord Coke

Section 41 of the Magna Carta (1215) held that

All merchants are to be safe and secure in leaving and entering England, and in staying and traveling in England ... to buy and sell free from all maletotes by the ancient and rightful customs, except, in time of war, such as come from an enemy country [who] shall be detained without damage to their persons or goods, until we or our chief justiciar know how the merchants of our land are treated in the enemy country; and if ours are safe there, the others shall be safe in our land. (qtd. in Holt 1992, 448-73) Of course, both before and after the Magna Carta, the king exercised an undefined sweep of power (the "prerogative") by which he could grant certain exclusive rights, or "franchises," to his subjects, allowing them the privilege to tax a particular trade or to have a monopoly on that trade within a certain area. But the foregoing passage shows that from early on the English were suspicious of royal control over economic opportunity. As far back as the reign of Edward III, common-law courts concerned themselves with protecting the subject's right to such economic freedom. In 1377, the court struck down a royal monopoly on the sale of wine in London that had been granted to a man named John Peachie. The court held this grant to violate the right of free trade (Holdsworth 1938, 4:344). Similarly, in John Dier's Case (2 Y.B. Henry V *26 [1415]), Chief Justice Holt ruled against a monopoly charter, holding that he would have imprisoned anyone who had claimed such a monopoly on his own authority. Thus, the king's power to control the economy was limited at common law by a right whose importance must have been obvious in an era when starvation and pestilence were common experiences. The right to support oneself by a lawful calling was central not only to the health of the state but to the lives of its subjects.

Consider the principle of economic liberty espoused in Prior of Christchurch Canterbury v. Bendysshe, in which the court held that "[d]amage alone is not a cause of action. Thus, [where] an innkeeper or other victualler comes and dwells next to another [innkeeper] and thereby more of the customers resort to him than the other, it is a damage to the other, but no wrong, for he cannot compel men to buy victuals from him rather than from the other" (93 Selden Society 8 [1503?]). Protecting the right to compete not only helped to increase supply and to lower prices in the market, but also gave the poor a chance to earn a living that they would not otherwise have had.

Lord Coke

By far the most outspoken defender of the right to earn a living was Sir Edward Coke (1552-1634), attorney general for Queen Elizabeth and later Chief Justice of King's Bench under King James I. Today, Coke is best remembered for his decision in Dr. Bonham's Case (77 Eng. Rep 646 [1610]), in which he asserted the supremacy of the law over the king, but Coke was also the leading opponent of royal monopolies. This opposition is ironic because, as Elizabeth's attorney general, Coke had been required to argue on behalf of the plaintiff in the famous Case of Monopolies, or Darcy v. Allen (77 Eng. Rep. 1260 [1602]). Edward Darcy had a monopoly of playing cards granted by Queen Elizabeth. After Allen began to make and sell playing cards, Darcy sued (Corre 1996). Chief Justice Popham ruled for the defendant: "All trades, as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labour, for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law, and the benefit and liberty of the subject" (Darcy, 77 Eng. Rep. at 1269).

The common law did not allow merchants to sell shoddy merchandise, but it held that a regulation for consumer protection was invalid if used to keep an honest trader out of the market. As the court held in the City of London's Case, "the King may erect guildam mercatoriam, i.e., a fraternity or society or corporation of merchants, to the end that good order and rule should be by them observed for the increase and advancement of trade and merchandise, and not for the hindrance of it" (77 Eng. Rep 658 [1610], at 663). In other words, government might regulate trade impartially, but it might not prevent the free exercise of a lawful calling (Parry v. Berry, 92 Eng. Rep 1066 [1718]; Chamberlain of London's Case, 77 Eng. Rep. 150 [1592]). As a 1727 decision put it, "The reason why particular restraints [on trade] are allowed is, because the publick is not concerned, so long as the party exercises the trade somewhere. But if it tends to prevent the exercise of [the trade] anywhere, it is not to be endured; because the publick loses the benefit of the party's labour, and the party himself is rendered an useless member of the community" (Chesman ex ux v. Nainby, 93 Eng. Rep. 819 [1727], at 821).

Another example is Allen v. Tooley, a suit against an upholsterer who had not served an apprenticeship before taking up his trade. Coke, who by this time had become Chief Justice of King's Bench, ruled that "no skill there is in this, for he may well learn this in seven hours" (80 Eng. Rep 1055 [1614]), at1057). As unskilled labor, it was not subject to the licensing restrictions appropriate to more technical trades: "by the very common law, it was lawful for any man to use any trade thereby to maintain himself and his family; this was both lawful and very commendable, but yet by the common law, if a man will take upon him to use any trade in which he hath no skill the law provides a punishment for such offenders, and such persons were to be punished in the court leet, and by actions brought, as by the cases before" (1055).

The court cited the example of a blacksmith who injured a horse because he was not skilled in his trade. A legal redress, the court explained, was already available in the form of a suit for damages. "Unskilfulness is a sufficient punishment for him," said Lord Coke (1059). As William Holdsworth writes, the common-law "judges favored the principle [of free trade] just as they favored the principle of freedom of alienation, because they were hostile to all arbitrary restrictions on personal liberty, or rights of property, for which no legal justification could be shown" (1938, 11:477-78).

In The Case of the Tailors, Coke wrote again that

at the common law, no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil ... especially in young men, who ought in their youth, (which is their seed time) to learn lawful sciences and trades, which are profitable to the commonwealth, and whereof they might reap the fruit in their old age, for idle in youth, poor in age; and therefore the common law abhors all monopolies, which prohibit any from working in any lawful trade. (77 Eng. Rep. 1218 [1615], at 1218) In these cases, Coke defended economic liberty to protect not the rich but the poor by striking down the legal restrictions on the freedoms that gave them a chance to work their way out of poverty. The wealthy benefited from monopoly practices. When James I, furious over Dr. Bonham's Case, finally fired him, Coke entered the House of Commons and continued his attack on monopolies, finally gaining passage of the Statute of Monopolies, which declared that all monopolies--save temporary patents, to encourage invention--"are altogether contrary to the laws of the realm, and so are and shall be utterly void and of none effect" (21 Jac. 1 c. 3). In his Commentaries on American Law, Chancellor James Kent referred to...