that prove to be valueless and ineffective when philosophically tested. A return to legal and economic philosophy remains the sole scientific procedure." 1

Almost the only serious investigation at all connected with this field that has been made by lawyers has related to the regulation of "public" callings,— but this has been primarily a study of regulation, not of business, and as shown in a previous article,2 the results as regards business are greatly impaired because of the circuitous reasoning employed: - A business is public, and it is "within the functions of government," therefore it may be regulated. It may be regulated, it is within the functions of government, therefore it is public. If it is under a duty to serve impartially it is public, and if it is public it is under a duty to serve impartially. "Private" business is under no duties at all it is even beyond the reach of the legislature.

Such an employment of the word "public" is obviously useless in a study of business as such. The thing to be discovered is the inherent nature of business, and the relationship in which it stands to the public - whether it concerns the public or only a particular individual — whether it is a private or a communal interest. As Professor Pound, in his learned articles in this REVIEW dealing with Sociological Jurisprudence, has said:

"A legal system attains its end by recognizing certain interests, individual, public, and social, by defining the limits within which these interests shall be recognized legally and given effect through the force of the state, and by endeavoring to secure the interests so recognized within the defined limits. . . . Undoubtedly the progress of events and the development of government increase the demands which individuals may make, and so increase the number and variety of these interests. But they arise, apart from the law, through the competition of individuals with each other, the competition of groups or societies. with each other, and the competition of individuals with such groups or societies." 113

In other words, as we may take it, a high state of civilization is of itself indicative of a multitude of new relationships between the members of the community, which it is the business of law and 1 THE WORLD'S LEGAL PHILOSOPHIES, Modern Legal Philosophy Series, vol. 2, p. 380.

2 "Business Jurisprudence," 28 HARV. L. REV. 135.

3 28 HARV. L. REV. 343, 344.

lawyers to recognize and adjust. In the simpler and more primitive conditions of communal association, the corresponding relationships are recognized as by instinct and the rights with which the community endows them are enforced by custom. But as the community grows, the resulting complexity of affairs produces a change, and the interdependency of the members becomes obscured at the very time that the claim of each upon all the others becomes more real as well as more vital. Instinct no longer suffices to produce a reaction in customary conduct. The discovery of the true relationships, the recognition of proper interests, and the statement in the form of law of the rights which the community concedes by virtue of this recognition, require an intelligent, yet sympathetic analysis of actual conditions, and this becomes the lawyer's task, and is the ultimate end of a legal system.

From its very nature the common law is peculiarly adapted to serve as the medium for the attainment of the ideal which Professor Pound has described, and because labor, capital, and business are so closely identified with the primal activities of civilized man, this is the field above all others in which the validity of the above analysis may be best tested and illustrated, and 'the one in which the real attitude and capacity of the legal system which we now enjoy may be most profitably examined.

In the former article a study was made of the "business" operation as such, with respect to its proper relationships. We there saw that in the nature of things and by the common law, in fact no less than in theory, all business is public. We found that business at common law consists in the undertaking and conduct of a community or public service for profit, and hence it is the duty of every one who takes upon himself a "public employment," that is, a business, "to serve the publick as far as the employment extends." The duty arises from the undertaking, the profession, and not from the necessities of the community, as often supposed. To carry on a business is to exercise a privilege. The right of a person to do with his own as he chooses need not be disputed. But the business man deals with what is not his own. He emerges from his privacy, involves the fortunes of the community with his own, and by so doing assumes an obligation to the public. He ceases to be a private, and becomes a "common" or public personage.

4 Holt, C. J., Lane v. Cotton, 1 Ld. Raym. 646, 654 (1701).

In early times, perhaps more frequently than at the present day, many occupations were carried on for the particular benefit of the family; many, such as weaving, were carried on within the household. There were, for example, private carriers and public carriers; private inns and public inns; private mills and public mills; private tailors and public tailors; private smiths and public smiths. This accounts for the frequent occurrence in the reports of the terms common" carrier, "common" inn, "common" mill, "common" tailor, "common" smith, and the like-expressions employed solely by way of indicating an express undertaking to serve the community and without any implication as to peculiar subjectability to legislative control. And so to-day if we followed the analogy and wished to distinguish business concerns from nonbusiness concerns we would say "common bank," "common insurance," common garage," common steel works," "common stock-yards," "common water works,' common railroad," "common express, common factory," common store," common warehouse," and so on.

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In the article referred to, emphasis was placed upon business as such, as an institution, so to speak, or organ in the system of production and exchange, discharging a community function.5 The fact that businesses are carried on by individuals, sometimes acting singly and at other times in various forms of association-partnerships and corporations in common law countries and more varied

5 The article on Business Jurisprudence did not prescribe a treatment for any special problem of business, nor was it a diagnosis of the ills of business. It was a physiological rather than a pathological study of business itself, and the true meaning of that study is not that a particular evil is to be treated thus and so, but that no real treatment can be given any evil of business, nor (what is even more important) can business be kept in a state of health, unless its true nature is understood. It was indeed suggested that a consistent application of the principle that all business is public should tend to promote the solution of modern trade problems and especially that branch of them which has to do with business combinations. But the problems arising out of modern industry are more complex than commonly supposed. Epitomized in the term "Trust" they do, it is true, have to do with the grouping, correlation and coordination of businesses, and their duty to serve each other, no less than private consumers. But they also have to do with the time, manner and conditions of work, the employment of capital and the general relations of the business process to the community itself - facts quite generally overlooked.

The present study is similarly not intended as a prescription for any particular evil associated with labor or capital or the subject or condition connoted by the expression "labor and capital." It is primarily a study of the nature and especially the legal nature of "labor and capital."

forms elsewhere- was properly disregarded as an accidental circumstance. It was shown that at the common law as interpreted down to a comparatively recent date the mere fact of engaging in business implied a duty to serve all comers without unreasonable discrimination, an idea in marked contrast with those entertained to-day when we find the cases, especially those involving labor and capital controversies, teeming with such expressions as "a man's business," "his business," "interference with his business,” “private business" and the like,- expressions implying a proprietary right in a given business to the exclusion of all communal interests. Today only a limited number of businesses are regarded as public, and then only in the sense of liability to special legislative control, and not at all in the sense of being subject to duties under the common law based upon the mere fact of undertaking to serve the community. The courts to-day do not recognize that businesses as such are subject to any duty. The decisions are in great confusion on this account and our "public service" and "public utility" law is largely a law of pipes, rails and wires. If we can imagine a time when the citizen in his residence will open a faucet

• Cf. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112, 113, 114, 30 Atl. 881, 885 (1894). "A man's business is property. Mr. Barr's business of publishing the paper with the incidents of its circulation and advertising, was as much his property as were the type and presses upon which the paper was printed. . . . It was Mr. Barr's personal right, without interference or dictation from any person or persons, to employ, in the prosecution of his business, such mechanical appliances as were safe and healthful, and to employ in the production of his paper, such persons and lawful means as he might choose. . . . This freedom of business action lies at the foundation of all commercial and industrial enterprises — men are willing to embark capital, time and experience therein, because they can confidently assume that they will be able to control their affairs according to their own ideas, when the same are not in conflict with law. If this privilege is denied them, if the courts cannot protect them from interference by those who are not interested with them, if the management of business is to be taken from the owner and assumed by, it may be, irresponsible strangers, then we will have come to the time when capital will seek other than industrial channels for investments, when enterprise and development will be crippled, when interstate railroads, canals and means of transportation will become dependent on the paternalism of the national government and the factory and the workshop subject to the uncertain chances of coöperative systems."

Lockner v. New York, 198 U. S. 45, 53 (1905), is to the same effect: "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578. . . . The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right."

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or valve to draw from some central reservoir his steam, gasoline or hot water, or any of the liquids consumed in his household; or by dropping a coin in a slot be able to receive instantly any of the articles of food or clothing to be found in the modern department store; or by pressing a button be able to witness the baseball game of the afternoon or hear the evening's operatic performance can readily understand that the popular and judicial conception of which community functions are private and which are public would undergo modification, and this quite regardless of whether the services were rendered over public or private rights of way or by invisible means. But it must be apparent that while this transference of the service from the point at which it originates to the place where it is enjoyed might aggravate the inconvenience of having it cut off or denied and excite a more strenuous assertion of a legal right to the service, it would not create the right nor make that public which was not public before.

All business is public, regardless of the disguise under which the function is performed and is subject in consequence to rights and obligations with respect to the community. And from this it must follow that the factors or constituent parts of business stand in this same public relation.

That capital is one of these factors will scarcely require argument. It is in truth the fund with which and to increase which business is carried on, the thing which the business man "turns over," as the phrase goes, in order to reap a profit. Indeed the records of the ancient trading communities from which most of the cities throughout the world have sprung, and many of which were in all probability contemporary with the more strictly agricultural settlements to be spoken of presently, furnish ample evidence of the general recognition and enforcement of this public interest. There were many trading towns in England - "portubus supra mare, villis mercatoriis et burgis" - whose founding antedates all records,

7 Cf. 2 MARSHALL, PRINCIPLES OF ECONOMICS, ch. 4, and app. E.

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8 The connection between business and the very existence of communities has in fact been so close that one might almost be said to be the cause of the other. Compare Montesquieu's statement (2 ESPRIT DES LOIS, bk. 21, ch. 5) that "The history of commerce is that of the communication of people" with the classic remark of Chief Justice Marshall: "Commerce undoubtedly is traffic, but it is something more; it is intercourse."