HANDBOOK TO THE LABOR LAW OF THE UNITED STATES CHAPTER I THE LABOR CONTRACT § 1. General Constitutional Right to Freedom of Contract. It is a question much discussed, whether there is such a thing as unwritten constitutional right to freedom of contract; that is, whether it has been established as a principle of English liberty that a man may make any contract he choose, not criminal or immoral, and call upon the courts to enforce it. If there is such a right, it may only be forbidden or limited by express act of Parliament in England, and only in this country by constitutions, not by Congress or the state legislatures. Although there are both historic and modern statements of English courts affirming such a right,' it is 1 By Sir J. Jessel, M. R., p. 465 (Printing Co. v. Sampson, L. R. 19, Eq., 462). "It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void 2 probable that parliament is in that country supreme; and that these statements are not meant to extend to a case where a statute has been enacted forbidding any special kind of contract before it is made. Important statutes, such as the Irish Land Acts, have been passed as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider-that you are not lightly to interfere with this freedom of contract. Now, there is no doubt public policy may say that a contract to commit a crime, or a contract to give a reward to another to commit a crime, is necessarily void. The decisions have gone further, and contracts to commit an immoral offence, or to give money or reward to another to commit an immoral offence, or to induce another to do something against the general rules of morality, though far more indefinite than the previous class, have always been held to be void. I should be sorry to extend the doctrine much further." So, in Mitchel v. Reynolds, 1 P. W., 181, decided in 1711, the courts say that "restraints of trade, though by grants or charters from the Crown or by laws of towns, etc., are void both as contrary to Magna Charta and the general liberties of the subject. Magna Charta says, 'No freeborn man shall be disseized of his free tenement or liberties, or his free customs,' and the word 'customs' has always been taken to extend to freedom of trade." See also Lord Bramwell's opinion in Reg. v. Druitt, 10 Cox C. C., 592, hereinafter, § 57. 2 Cooley, Const. Limitations, *172; 1 Blackstone, 91. Coke held the opposite opinion; see Bonham's Case, 8 Co., 1186. in the present century, denying unlimited freedom of contract in special cases. A safer statement of the English law would therefore be that this right to freedom of contract only extends to contracts which are neither criminal, immoral, nor expressly made illegal by existing laws. In this country, however, our courts have frequently taken a stronger position; and in some cases have seemed to hold that general freedom of contract is an old English constitutional principle. If so, as the American colonists, according to the opinion of both Blackstone and Benjamin Franklin,' brought over the principle as part of their common inherited liberties, before the adoption of our written state and federal constitutions, and, unless contradicted by express provisions of these latter, it may stand as a constitutional principle to-day. No state constitution expressly denies the principle of freedom of contract; therefore, if this be an old constitutional right, it remains to all American citizens to-day, unless we hold that by the adoption of written constitutions they have impliedly abandoned, at least as to the legislature, all constitutional rights not expressed in these. It may still be questioned whether this is generally the case; there is no high authority in favor of it, except in Massachusetts, which has a 31 Bl. Com., 107; 4 Franklin's Works, Sparks, 271. |