law, and has a legal right.99 I discussed this subject in another place recently,100 where I attempted to show that there were at least six cases where the proposition that equity would not aid a volunteer did not apply or was not wholly true, and suggested a tendency to get away from the doctrine and to enforce deliberate promises simply as promises under one pretext or another. A recent decision affords a striking illustration of this tendency. In McCrilles v. Sutton 101 husband and wife in 1894 executed an instrument under seal, to which M was a party, in which they recited that M had been given them to adopt when a child, that they had mistakenly assumed that he had been adopted by them, that they had always promised him that on the death of the husband he should have the same amount of property as their own son, and that he had served them faithfully, and promised "in consideration of love and affection and of the foregoing premises," of the promises theretofore made to M and "of the services performed. . . set forth in said premises," that he should have the same share in the property of the husband and wife that he would have had if he had been lawfully adopted. In 1901 the husband conveyed all his property to the wife, reserving a life estate. The wife died intestate in 1917. Thereupon M brought a bill for specific performance against the heirs of the wife and a decree in his favor was affirmed. It could not be claimed here that there was the "consideration" of blood relationship or of "natural love and affection." Moreover that doctrine has been confined in equity to the one case of covenants to stand seized to another's use. Nor is this a case of defective conveyance to a child by way of advancement 99 Jefferys v. Jefferys, Cr. & P. 138 (1841), and subsequent cases in England. In many of the American cases cited for this doctrine there was no contract at law. There was a valid instrument at law in Barrett v. Geisinger, 179 Ill. 240, 249, 53 N. E. 576 (1899); Black v. Cord, 2 Har. & G. (Md.) 100 (1827); Selby v. Case, 87 Md. 459, 39 Atl. 1041 (1898); Lamprey v. Lamprey, 29 Minn. 151, 12 N. W. 514 (1882); Vasser v. Vasser, 23 Miss. 378, 382 (1852); Bosley v. Bosley, 85 Mo. App. 424 (1900); Burton v. Le Roy, 5 Sawy. (U. S.) 510 (1879). But most of these cases went off on other grounds. In Graybill v. Brugh, 89 Va. 895 (1893), the court denied specific performance of an option under seal because there was no consideration. In a later case, however, the same court treated such an option as an irrevocable offer. Watkins v. Robertson, 105 Va. 269, 54 S. E. 33 (1906).. Also Lamprey v. Lamprey, supra, should be compared with McMillan v. Ames, 33 Minn. 257, 22 N. W. 612 (1885). 100 "Consideration in Equity," 13 ILLINOIS L. REV. 667. where equity gives reformation under circumstances amounting to specific performance. But the case is not unlike those in which, the promisor being dead, the question was between those to whom the ancestor had promised to give and his heirs who took as a windfall what had been promised to another.102 Here plaintiff was neither a child nor a creditor. Yet he was something very like both and there might be said to be a "meritorious consideration" in equity.103 It differs from the cases of the latter type in that there was no attempt made to convey. The court is squarely and avowedly enforcing specific performance of an executory promise. If the contract is valid and enforceable at law it is an unjustifiable anomaly to require something more as a requisite of the only effective remedy which the legal system affords. Another case in which, under one pretext or another, courts of equity specifically enforce a promise under seal without consideration is illustrated by Thomason v. Bescher.104 Here there was a formal covenant to convey certain lands, on condition of payment (at the holder's option) of a specified sum within a time fixed. The court, following the all but unanimous current of authority,105 decreed specific performance. There can be no quarrel with so desirable a result. But the reasoning is suggestive. The court begins by reminding us that a covenant under seal requires no consideration. It must needs qualify this, however, by admitting that equity requires a consideration before it will enforce an executory contract, even though it be under seal. Accordingly it cites the cases in which such instruments are treated as irrevocable offers, and suggests that in cases where equity has called for a consideration as a prerequisite of enforcing an option under seal "the mind of the judges was 102 Wright v. Goff, 22 Beav. 207 (1856); Mason v. Moulden, 58 Ind. 1 (1877); Cummings v. Freer, 26 Mich. 128 (1872); Huss v. Morris, 63 Pa. St. 367 (1869); Brock v. Odell, 44 S. C. 22, 21 S. E. 976 (1894). 103 Thompson v. Attfeild, 1 Vern. 40 (1682); Colman v. Sarel, 3 Bro. Ch. 12 (1789); Baker v. Pyatt, 108 Ind. 61, 9 N. E. 112 (1886). The sound view is that a "meritorious consideration" of itself will not support an executory promise. Landon v. Hutton, 50 N. J. Eq. 500, 25 Atl. 953 (1892); Matter of James, 146 N. Y. 78, 40 N. E. 876 (1895). Contra, Crawford's Appeal, 61 Pa. St. 52 (1869). See also Re Hoffman's Estate, 177 N. Y. Supp. (Misc.) 905 (1919). 104 176 N. C. 622, 97 S. E. 654 (1918). 105 Willard v. Tayloe, 8 Wall. (U. S.) 557, 564 (1869); Guyer v. Warren, 175 Ill. 328, 51 N. E. 580 (1898); O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602 (1896); McMillan v. Ames, 33 Minn. 257, 22 N. W. 612 (1885); Watkins v Robertsor, 105 Va. 269, 54 S. E. 33 (1906). not specially called to the distinctions existent and usually observable between a mere offer to sell without consideration and without seal and one that is effective as a binding agreement by reason of the seal." 106 Whether we speak of an irrevocable offer 107 or of a power,108 there is a covenant enforceable at law, and no obstacle and no just objection to enforcement in equity beyond a doctrine devised for executory or defectively executed gifts, which has no legitimate application to business transactions. The holder of an option under seal is to be something more than a mere recipient of the promisor's bounty.109 And yet the option in and of itself is valuable, and for that the holder of the option under seal gives nothing. After all, we cannot blink the fact that in these cases the chancellor does enforce an executory promise on no other basis than declared intention plus a seal. It is an undesirable anomaly that a valid contract at law, free from all objection on grounds of fraud, coercion, or mistake, and a fair bargain, should be unenforceable in equity. Where the option is given for a consideration, equity need have no difficulty in following the law. It should be enough if the law has for any reason reached the desirable result that a collateral promise to keep an offer open, made under seal or upon consideration, precludes revocation. It must be enough if there is a commonlaw consideration. Most of the difficulty which the courts have encountered grows out of the doctrine of mutuality of remedy. In Starr v. Crenshaw 110 specific performance was granted in such a case. HARVARD LAW SCHOOL. [To be concluded] Roscoe Pound. 106 107 176 N. C. 622, 628, 97 S. E. 654, 656 (1918). 108 ANSON, CONTRACTS, Corbin's ed., §§ 32, note 2, 50, note 3. HARVARD LAW REVIEW Published monthly, during the Academic Year, by Harvard Law Students STATE REGULATION OF PRICES UNDER THE FOURTEENTH AMENDMENT. In the devious and somewhat whimsical history of the Fourteenth Amendment, while the courts have taken glances at the possibility of a state's embarkation upon a new economic route, they have never been called upon directly to face the question which would be raised by such a departure. But with the decision of the United States District Court for Montana that a statute giving a commission power to regulate the prices of all commodities is unconstitutional,1 the fringe of that problem has been touched. The causes which led to the passage of the Montana statute were the great increase in prices within the last few years, the curtailing of supplies and the straitened circumstances of a large part of the population of the state brought about by three successive years of drought, and the finding by a state commission that exorbitant profits were being made. The historical background of the act reaches to the Middle Ages. In England, from the fourteenth century, there were statutes fixing the prices in businesses not within the modern conception of public utilities, and there is evidence that such statutes were passed by American provincial assemblies. During the Revolution, generally at the in 1 Holter Hardware Co. v. Boyle, the District Court of the United States for the District of Montana, No. 149 (1920). See RECENT Cases, p. 261, infra. 2 See 23 Edw. III, Stat. I, c. 6 (1349); 25 HEN. VIII, c. 2 (1533); 31 GEO. II, c. 29, sect. 7, 20 (1758). See SHEPPARD, Office of CouNTY JUSTICE, part 2, C. 7, sect. 27; and STICKNEY, STATE CONTROL OF TRADE AND COMMERCE, chapters 1 and 3. 3 See 2 ACTS OF ASSEMBLY OF PROVINCE OF PENNSYLVANIA, 327 (act of 1758). stigation of the Continental Congress, at least eight of the thirteen states passed laws fixing the price of almost every commodity in the market." These laws were evoked by what was considered the exorbitant increase in prices. Within a few years they all seem to have been repealed, partly because there was no machinery adequate to enforce them, partly because of resentment that a few of the states did not take part in the movement. At the time the Fifth Amendment was ratified, however, at least two states had statutes providing for the regulation of the price of bread." 9 8 There is little authority even bearing on the point involved. In the Supreme Court's consideration of cases under the Fourteenth Amendment, the existence of Anglo-Saxon precedent for the statute and the conditions which led to its passage have been important and sometimes controlling factors. If a generalization may be ventured of the cases as a whole, the actual decisions, despite much discussion of the extent to which the businesses regulated were affected with a public interest, seem to involve no more than a determination of whether the aim of the legislature was a legitimate aim of state government, and, if so, whether the social interest was sufficiently strong to counterbalance the interference with individual interests 10-a question primarily for the legislature.11 The aim of the Montana legislature - the protection of its citizens against extortion — has been held a proper function of government.12 4 9 JOURNALS OF THE CONTINENTAl Congress, 956 (resolution of Nov. 22, 1777). 5 ACTS AND LAWS OF CONNECTICUT, November Session, 1776: An Act to Prevent Monopolies and Oppression by excessive and unreasonable Prices for many of the Necessaries and Conveniences of Life, amended in May Session, 1777, and February Session, 1778; Laws of MARYLAND, June, 1777, c. XI, sect. 9; LAWS OF MARYLAND, October, 1778, c. VIII, sect. 8; MASSACHUSETTS LAWS, Third Session, January, 1777, c. XIV; amended in Fourth Session, May, 1777, c. XLVI; NEW HAMPSHIRE SESSION LAWS, 1777: An Act for regulating the Prices of Sundry Articles, p. 43, amended in the same year, p. 55; NEW JERSEY ACTS, Fourth Assembly, First Sitting, October, 1779, c. XII; LAWS OF NEW YORK, First Session, c. XXXIV (1778); LAWS OF PENNSYLVANIA, Second Assembly, Second Sitting, April, 1778, c. LX; RHODE ISLAND Laws: An Act to prevent Monopolies and Oppression, etc., December, 1776, amended in May, 1777The Maryland act fixed a maximum rate of profit; the other acts set out the prices at which commodities could be sold. 6 MARYLAND LAWS OF 1789, c. 8, sect. 2 (HERTY'S Digest of the LAWS OF MARYLAND, 1799, p. 250); 5 Statutes of South Carolina, 186 (1791); (1 SOUTH CAROLINA ACTS OF ASSEMBLY, 1791-1794, p. 88). 7 There is a decision that a statute providing for the regulation of the price of bread does not violate the state constitution. Guillotte v. City of New Orleans, 12 La. An. 432 (1857). See also Mayor of Mobile v. Yuille, 3 Ala. 137 (1841), for a dictum to the same effect. For a dictum that it is constitutional to fix the price of schoolbooks, see Polzin v. Rand, McNally & Co., 250 Ill. 561, 571, 95 N. E. 623, 625 (1911). There are several dicta that a general price-fixing law would be unconstitutional. See American Surety Co. of New York v. Shallenberger, 183 Fed. 636, 639 (1910); Street v. Varney Electrical Supply Co., 160 Ind. 338, 345, 66 N. E. 895, 898 (1903). But see Munn v. Illinois, 94 U. S. 113, 125 (1876). 8 Griffith v. State of Connecticut, 218 U. S. 563 (1910) (upholding a state usury law). 9 Clark v. Nash, 198 U. S. 361 (1905) (upholding a Utah statute which permitted condemnation by individuals for the purpose of irrigating their lands). 10 See brief for the defendant in error in Stettler v. O'Hara, 243 U. S. 629 (1916). 11 See James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law," 7 HARV. L. REV. 129. 12 Griffith v. State of Connecticut, supra. That the protection of the buyers of goods is a legitimate motive for state action is recognized in Central Lumber Co. v. State of |