Chapter XII: Combinations in Labor Matters

We have now gone over the history of modern legislation in the two great fields of property and personal liberty, and we have generally found that the same principles of jurisprudence govern both. So shall we now find when we come to combinations that there is no difference or distinction in the law between combinations of capital and combinations of individual faculties. In both fields a "combine" is obnoxious, as the untutored mind instinctively feels. Combinations may, of course, be lawful; but the fact that no actually criminal purpose or act can be found against them is not conclusive of their legality. At the risk of wearying the reader I would reiterate my belief that this was one of the greatest juristic achievements of the English common law; and that the question whether it shall be all done away with or retained is the most momentous public question now before us in industrial and social matters.[1] Whether, on the one hand, Standard Oil combinations shall be permitted to the point of universal monopoly of trade and opportunity; or, on the other, close unions built up, even by legislation itself, to an equally impregnable position of monopoly of opportunity, or so as to become a universal privileged guild--are questions to be determined by the same principles; and equally momentous to the future of our republic and of human society as now constituted. And before passing to a review of the legislation itself, I would lay down the principle which I believe to be the one which will ultimately be found to be the controlling test: that of _intent_. The _effect_ (often proposed as the test) is really immaterial as determining the illegality of the combination, except so far as it may be evidence of the probable intention of the participators at its inception.

[Footnote 1: Professor Dicey, I find, in his recent book, "Law and Opinion in England," opens this subject with a statement equally strong (Appendix, note 1, pp. 465-6).]

For the early English conspiracies were by no means necessarily or usually aimed at the commission of some definite crime; they were rather described to be the conspiracies of great lords for the general "oppression" of a weaker neighbor, for which he sought refuge or protection in the court of chancery. Now, general oppression or wrongdoing, the exclusion from land or labor or property or trade, by a powerful combination, is precisely the moral injury suffered in modern boycotts when there is no actual crime committed. Indeed, one of the earliest kinds of conspiracy expressly mentioned and described in the English statutes is a conspiracy for the maintenance of lawsuits, which by the very definition of the thing must be a combination for an end not in itself unlawful. The American courts have been curiously obscure or vacillating on this point. With their too general forgetfulness of historical legislation and the early common law, they have gone from one extreme to the other, often with a trivial consideration of the importance of the points involved, and always with an entire absence of a universal point of view, of that genius which grasps a question in its entirety and is not confused by irrelevant details. It is only of late when the matter has come before the Federal Supreme Court and the courts of a few States which have been educated by a frequent recurrence of disputes of this sort that we begin again to see the principle clearly, as I shall venture to lay it down here: that the acts of a number of persons combined are to be judged by their _intent_. In individual acts the intent is of no importance except as it turns an accident into a crime; chance-medley for instance into murder, or mere asportation into larceny, or ordinary conversation into slander; yet these few instances serve to show how universal is the recognition of intent in the law and how little difficulty it presents. Juries have very rarely any difficulty in determining this question of intent in individual acts; and in like manner they will have no difficulty when it is recognized as the fundamental test in cases of combination, _i.e._, conspiracy. And for the antiquity of this our law we need but mention a few cases: Rex _v. _ Crispe, cited in the Great Case of Monopolies (7 State Trials 513):" Here was lately an agreement between copperas makers and copperas merchants for the buying of _all_ copperas, and that these copperas makers shall for three years make at so much a ton and restraining them from selling to others"--_held_ a criminal conspiracy; of the tailors of Ipswich (6 Coke 103) where a company of tailors made a by-law to exclude non-members from exercising their trade; and the Lilleshall case (see p. 71 above).

Thus in matters of _capital_: is the _first_ intent, the _immediate_ object, to increase profits, to acquire or enjoy property, to enlarge one's business,[1] or is the _first_ intention to destroy a competitor or create a monopoly? So in _labor_ combinations: is the _first_ object to get better terms for the persons combining, an increase of wages or a reduction of hours, improved conditions in factories and shops, etc., etc., or is the _first_ thing they are seeking to do to injure a third person, not concerned in the dispute, or to control the liberty and constitutional right of the employer himself? If the latter, it is "oppression" within the meaning of the early common law, and should be so held to-day.

[Footnote 1: What Mr. Cooke calls, in his preface, "the natural incident or outgrowth of some lawful relation." _Combination, Monopolies and Labor Unions_, p. iv.]

And not only is this great domain of English law noteworthy because it is so subtle as to grasp the effect of a combination other than that of the individual acts, and the intent of that combination other than its effect, but it is perhaps the only great realm of law which really attempts to carry out the principle of the Golden Rule. In all other matters, if an act be lawful, it remains lawful, although done with the intent of injuring another; it does not usually even give rise to an action for damages; but the great principle of the English law of conspiracy was crystallized two hundred years ago in the classic phrase of Hawkins, in his "Pleas of the Crown," vol. II, p. 121: "There is no doubt that a combination made to the prejudice of a third person is highly criminal at the common law."[1] The usual definition of conspiracy, that is, of unlawful combination, is a combination made for an unlawful purpose or for a lawful purpose using unlawful means; this is to be found in all the text-books; but it should be amplified in accordance with our earliest and deepest law so as to include a combination for the mere purpose of injuring another, or molesting him or controlling him in the exercise of his ordinary lawful rights; and _a fortiori_--as of combinations to enhance the price of food--to injure the public. It is for this reason that the combination of many to diminish the trade of one is an unlawful combination; the combination may be punished although all the acts done are within the letter of the law; and when the conspiracy is evidenced by unlawful acts, the conspiracy may be punished far more severely than the acts could have been punished themselves. We have noted that one of the great attempts of organized labor to-day is to do away with this principle, to provide that no combination should be punished when the acts committed are not punishable in themselves, and that in fact it should be the acts and not the combination which is punishable at all. This, it is true, was enacted by the English Conspiracy and Protection of Property Act of 1875, as to industrial disputes only, in England; and it is just as true that it would be unconstitutional in this country, both under the Federal and State constitutions. Yet the agitation for this revolution in the common law has been successful in Maryland, California, and Oklahoma, though, as has been said, it does not appear that any cases have yet been tried where the exception was pleaded in defence, still less where the statute has been sustained as constitutional.

[Footnote 1: "The position cited by Chitty from Hawkins, by way of summing up the result of the cases, is this: 'In a word, all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character.' And Chitty adds that 'the object of conspiracy is not confined to an immediate wrong to individuals; it may be to injure public trade, to affect public health, to violate public police, to insult public justice, or to do any act in itself illegal (3 Chit. Crim. Law, 1139)." Quoted by Shaw, Chief Justice of Massachusetts, in Commonwealth _v_. Hunt (4 Mete. Illinois), printed as a Senate Document in the 57th Congress, 1st session (Mass.) III.]

It is to be noted that the original English Act of 1875 only did away with the criminal liability and left the victims of the boycott or blacklist free to sue the combination for damages; but by the "Trade Disputes Act," 6 Edward 7, chapter 47 (December 21, 1906) the following paragraph was added:

"An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable."

And also a clause as to picketing:

"It shall be lawful for one _or more[1]_ persons, acting on their own behalf or on behalf of a trade-union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working."

[Footnote 1: The italics are our own.]

And another upon inducing the breaking of contracts, loss of service:

"An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills."

Furthermore, after the Taff Vale case, trades-unions were exempted from all liability:

"(1) An action against a trade-union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade-union in respect of any tortious act alleged to have been committed by or on behalf of the trade-union, shall not be entertained by any court.

"(2) Nothing in this section shall affect the liability of the trustees of a trade-union to be sued in the events provided for by the Trades-Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.

"(3) In this act and in the Conspiracy and Protection of Property Act, 1875, the expression 'trade dispute' means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labor, of any person, and the expression 'workmen' means all persons employed in trade and industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned act, the words 'between employers and workmen' shall be repealed."

It is hard to say whether any part of this surprising statute would be constitutional in this country, except the second paragraph (p. 267, above); leaving out even there the words "or more." Certain it is that by it industrial conditions are placed under the sway of the labor unions, and the commerce and prosperity of England now lie in the "hollow of the hand" of those who work with it.

This effort to do away with the law of combinations in labor matters with that aimed at forbidding or controlling the injunction in labor disputes, and with also the statutes which give a special privilege to union labor, we have found to be among the most important pieces of modern legislation. Alabama and Colorado have statutes legalizing "picketing," but a similar bill in Massachusetts failed repeatedly of enactment. But when we come to the statutes applying to _combinations_ solely, and defining them, there have been many statutes declaring blacklisting and boycotts to be unlawful--which is merely the common law--and a few statutes especially forbidding them. Thus, by the year 1907, twenty-two States and the United States had statutes against blacklisting, five had statutes against boycotting, ten had adopted laws regulating strikes in cases of railway employment, Minnesota a law forbidding any employer to require as a condition of employment any statement as to the participation of the applicant in a strike for more than one year immediately preceding, Oklahoma a law requiring him to advise new applicants for employment of any labor dispute then pending with him, and to give such notice in his advertisements; which statute barely failed of enactment in Massachusetts. The best definition of the boycott is, perhaps, to be found in the law of Alabama: "Any two or more persons who conspire together for the purpose of preventing any person, persons, firm, or corporation from carrying on any lawful business, or for the purpose of interfering with the same, shall be guilty of a misdemeanor." The most cumbrous is that of Indiana, which, attempting to express the matter in more detail, is far too long to quote.[1] Many acts which are really part of a boycott, or unlawful, _i.e._, sympathetic strikes, will be found under the heading "Intimidation" or "Interference with Employment" in other States; such is the recent statute of Washington (see above, p. 251). Unless the function of a statute be to instruct the ignorant, it would probably be better to forego all such definitions and rely upon the elasticity of the common law.

[Footnote: Indiana Revision of 1901, Sec. 3312 M. There is also an elaborate definition of "trusts," "conspiracies," and "boycotts" in chapter 94 of the Laws of Texas, 1903.]

As an example of the most advanced labor legislation we may briefly digest the Oklahoma laws of 1907-8:

By the Act of May 29, 1908, two hours must be allowed by every corporation or individual employer to his employees to vote, and it is made a misdemeanor to in any way influence his vote; and there is a general labor code enacted May 22, 1908, which, with its supplements, is perhaps the most radical labor legislation to be found in the United States. After establishing a State commissioner of labor, a board of conciliation and arbitration, and free employment offices, all of which are usual in other States, there is an elaborate chapter on factory regulation and one upon mine regulations, and to protect persons working on buildings, railroads, steam boilers, etc., and a carefully drawn statute regulating the labor of children. Then there are other provisions which are more unusual. The Canadian statute substantially is enacted as to strikes: "whenever there shall exist a strike or lockout where (in the judgment of the State Board of Conciliation) the general public shall appear likely to suffer injury or inconvenience, and neither party consents to an arbitration," then the board, having failed to effect a conciliation, may proceed on its own motion to make investigation and propose a settlement, with recommendations to both parties, and presumably publish the same. It has, of course, no power to enforce a settlement, but may compel testimony, etc. (Article II, section 4.)

Private employment offices are carefully regulated, the fees limited to two dollars, and the money must be returned if no place is found, with careful provisions against sending help to immoral resorts.

The compelling of an agreement, either written or "verbal,"[1] not to join, a labor union as a condition of obtaining or continuing in employment is made a misdemeanor, punishable with one thousand dollars fine and twelve months imprisonment.

[Footnote 1: A common vulgarism; the law probably means "oral."]