The Liberty to Trade as Buttressed by National Law/Damages

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by George Howard Earle, Jr.



This not being a general treatise, but merely a consideration of certain phases, certain difficulties of the subject-matter, little need be said on the subject of damages.

One or two matters, however, may be of interest:

Great discussion has been had as to whether the damage must be to a trader, or to one in the way of his trade, or one in matters involving national trade. This subject seems free from difficulty. We are all citizens of a common country—a wrongful act prohibited, and by proper authority, and damage promised to those who suffer from that act, must be redressed! If there be, for example, a conspiracy against national trade, there can be no reason to doubt that any one injured by anything done as part of or in pursuance of that conspiracy should recover. The act expressly says so! There has been an undoubted wrong, from an assault upon national authority, and a damage from it, and there would seem to be no reason why there should not be a recovery. This question seems settled in Chattanooga vs. Atlanta.[1]

It is, too, often absurdly argued, that if "a means" causing damage is an act within State jurisdiction, the national jurisdiction is ousted by the State's, though the act was done in pursuance of an attack on national trade; but that is practically destroying national authority altogether, as nearly every conceivable wrongful act could be redressed by the State. The Swift and Loewe cases dispose of this. In such cases this added wrong is "negligible."

One other question of great interest yet to be settled is whether the infringement of the constitutional right to pursue happiness through national trade is actionable per se, or requires proof of actual damage?

That, of course, is a mere question of policy, and depends upon the quality and importance of the right. More accurately, of whether there is such a right; for if there is, there must be an action for its invasion.

Professor Bigelow says, in his wonderful little work on "Torts," p. 26:[2] "Speaking broadly, the cases in which it is not necessary to prove special damage in an action for tort are cases in which the act done is manifestly dangerous, so much so that instinct calls at once for redress, and would take it but for the law. Rights of life, liberty, property, and reputation furnish the subjects of such redress."

The Supreme Court has, indeed, itself regarded this right as property: "The fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws. * * * The very idea that one man may be compelled to hold his * * * means of living or any material right essential to the enjoyment of life at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."[3]

In Aikens vs. Wisconsin,[4] Mr. Justice Holmes says: "It is obvious that justifications may vary in extent according to the principle of policy upon which they are founded, as that while some, for instance, at common law, those affecting the use of land, are absolute,[5] others may depend upon the end for which the act is done."

Now, if the slightest invasion of the right to enjoy land, if mere withholding of the right to sit in a chair that one owns but does not intend to use for profit,[6] are actionable per se, what should be, what must be the policy of the law as to the unlawful interference with the highest instance of the highest form of one of the few rights granted by the national Constitution itself? The right of freedom, of election, or enjoyment of untrammeled participation in national trade?

It does seem that when the national government itself grants a right and undertakes its protection against both States and people, takes its sole protection upon itself, and declares it of the highest importance, it should warrant at least as high a sanction of policy as the right to sit in a chair from which nothing but mere comfort is intended or expected. In re Debs,[7] illustrates how determined the Supreme Court has been to safeguard this right! But the analogies, if not the absolute decisions, seem to cover this question. Indeed, it has been long settled that the dignity of the sovereignty prevents it admitting that its grants are so valueless that they can be invaded without reparation in every case. "Generally speaking, every willful interference with a franchise is actionable without regard to the defendant's act being done in good faith by reason of a mistaken notion of duty or claim of right, or being consciously wrongful. 'If a man hath a franchise and is hindered in the enjoyment thereof an action doth lie, which is an action upon the case. Holt, C. J."[8]

But that liberty itself, especially that emanating from the sovereign, is put upon still higher grounds, is clear.

The opinion of Lord Camden—a landmark in the history of our liberty—in 1763, in Huckle vs. Money,[9] is instructive! And this is followed in Scott vs. Donald,[10] which, if rightly comprehended, covers the exact point now being discussed.

There the officers of the State of South Carolina had interfered with this exact right, or liberty, and had withheld a few dollars' worth of liquors being obtained through interstate trade. Action was brought for this invasion of the nationally granted right, and six thousand dollars of damages claimed; but as the liquors detained were of so little value, the question of jurisdiction was raised, because the amount in controversy did not reach two thousand dollars, as required by the Act, but the Supreme Court said: "The intentional, malicious, and repeated interference by the defendants with the exercise of personal rights and privileges secured to the plaintiff by the Constitutiontion of the United States * * * constitutes, as we think, a wrong and injury not the subject of compensation by a mere money standard, but fairly within the doctrine where exemplary damages have been allowed." And the court held that for this invasion of such a right the jury would have been entitled to give a verdict for the full amount claimed, which, being six thousand dollars, of course bore no relation to the few dollars of mere property actually involved. Indeed, so far as the exercise of liberty in relation to national trade is concerned, it is peculiarly close in analogy to the cases of franchises, which have always been held to be governed by the rule of policy applicable to real and personal property—only in this case the sanctions behind protection are peculiarly high. For the right to engage in national trade is a franchise, whether secured to individuals or corporations, emanating not from the common law, but the Constitution itself—the supreme law of the land!

  1. 203 U. S. 390 (1906).
  2. Bigelow, "Torts," p. 26.
  3. Yick Wo vs. Hopkins, 118 U. S. 370 (1886).
  4. 195 U. S. 204 (1904).
  5. Bradford vs. Pickles, A. C. 587 (1895).
  6. "The Mediana," [1900] A. C. 116 (1900).
  7. In re Debs, 158 U. S. 568 (1895).
  8. Pollock, "Torts," 334.
  9. 2 Wilson 205 (1763).
  10. 165 U. S. 58 (1897).