Popular Law-making Part 13

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 const.i.tuted. And before pa.s.sing 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 partic.i.p.ators 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 c.o.ke 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 compet.i.tor 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 const.i.tutional 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 cla.s.sic 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 unconst.i.tutional in this country, both under the Federal and State const.i.tutions. 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 const.i.tutional.

[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 Ma.s.sachusetts, in Commonwealth _v_. Hunt (4 Mete. Illinois), printed as a Senate Doc.u.ment in the 57th Congress, 1st session (Ma.s.s.) 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 const.i.tutional 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 Ma.s.sachusetts 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 partic.i.p.ation 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 advertis.e.m.e.nts; which statute barely failed of enactment in Ma.s.sachusetts. 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 c.u.mbrous 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."]

Section 2 of this act (June 6, 1908) copies the _older_ English statute of 1875; that is to say, it does away with all _criminal_ liability for conspiracies in labor matters, and it further provides that no "such agreement, combination, or contract be construed as in restraint of trade or commerce; nor shall any restraining order or injunction be issued with relation thereto, provided only that nothing in this act shall be construed to authorize force or violence." We have already commented on the possible unconst.i.tutionality of this act.

Section 3 makes it unlawful for anybody to induce or persuade workmen to change from one place to another (except presumably the labor unions themselves), or to bring workmen into the State by means of any false or deceptive representations, false advertising or false pretences, or by reason of the existence of a strike or other "trouble." Failure to state in an advertis.e.m.e.nt, proposal or contracts for the employment of workmen that there is a strike or other "trouble" is made a criminal offence, punishable with a year's imprisonment or two thousand dollars fine (this is the law which failed of pa.s.sage in the Ma.s.sachusetts Legislature of 1910).

The hiring of armed guards, as is usual in the West, is made heavily criminal. Finally, to workmen who have been influenced or persuaded to do anything by anybody except another workman, is given a suit for damages against the person so persuading them. The lot of the employer in Oklahoma is indeed a parlous one!

By the law of April 24, whenever a workman is discharged, his employer must give him a letter stating the reason truly, under penalty of five hundred dollars fine and one year's imprisonment, and such letter must be written, not printed, and the form and appearance of the stationery is carefully provided for and all secret marks forbidden. Oklahoma is one of the eight-hour States, with the minimum average wage in public work, referred to above; and all contracts must be made on that basis.

Wages must be paid fortnightly in cash, by all persons or corporations engaged in mining or manufacturing.

Oklahoma is the test-tube of American legislative reactions. We shall await with interest the legislation of 1911, as well as the effect of the laws we have summarized above. In the meantime Oklahoma has presented to the const.i.tutional lawyer the long-sought problem of whether a sovereign State once admitted to the Union is bound by the Act of Congress authorizing such admission. The enabling act of Oklahoma required that its capital should be fixed at Guthrie and not moved for a period of years. In May, 1910, within such period of limitation, by act of legislature, supplemented by a plebiscitum of the people and the executive action of Governor Haskell, the capital was removed to Oklahoma City, and the State seal conveyed there surrept.i.tiously, in spite of the injunction of a Federal district court. A more beautiful American const.i.tutional question could hardly be presented. It may not at first seem to the reader so important, but when he considers that, for instance, Utah and other Western States have abolished Mormonism in the same manner, or have agreed to give equal treatment to the j.a.panese and Chinese in the same manner--by an enabling act of Congress, ratified and perpetuated in the State Const.i.tution--he will see the importance of the question. It was antic.i.p.ated in the writer's work on const.i.tutional law ("Federal and State Const.i.tutions," p. 186, note 8): "The enabling acts admitting the eight new Western States usually provided against polygamy on account of the Mormon influence, and this, with other provisions concerning schools, etc., was made forever irrepealable without the consent of the United States; see Utah 3, 1. This is probably only a moral obligation; a State when once admitted comes in with all the rights of the older States. So far as this section is concerned, Utah could probably amend her Const.i.tution and re-establish Mormonism to-morrow."

European legislation is necessarily more elaborate because there is usually no body of existing common law. Trades-unions are universally made lawful, as they are with us. But in France in certain cases the consent of the government to the formation of such organizations is necessary; and the Code Napoleon made unlawful all combinations of persons with an "evil end."[1] So, "full freedom of a.s.sociation" is now guaranteed in Switzerland; and in Germany the trade guilds are largely recognized, but membership must not be compulsory. In Austria a strict governmental control is exercised, and the principle of obligatory guilds is unreservedly accepted. There does not appear to be any legislation upon strikes except in Great Britain, France, and Italy, such matters being left largely to the political or police authorities. Strikes were unlawful in England until comparatively recent times, but were always lawful in this country, and are so by the modern French law, which is much similar to ours, as is the case in Italy; but in Russia the leaders of a strike may be imprisoned.

[1] Quoted in Dane's Abridgment, published in 1800.

In no country do I find any specific legislation as to boycotts, except the English statute already referred to, repealing the common law of conspiracy, both civil and criminal, in industrial disputes.

Germany and Austria have blacklisting laws. The matter of riots, etc., is generally left to the criminal law to control. In no country other than the United States do I find any prohibition against a man's protecting his own property with private guards, armed or otherwise.

Arbitration laws in the British colonies are very generally aimed at the prevention of strikes. Otherwise there seems to be less legislation on the subject during the last ten years than might have been expected. The Orange River Colony has severe laws concerning the labor of the blacks, of a nature resembling our peonage laws in the Southern States. Similar conditions seem to lead to similar legislation throughout the modern world.

Legislation is now much desired here also to obviate the effect of the Taff Vale case and that of the Danbury hatters which applies its princ.i.p.als to interstate commerce; that is to say, which shall secure the funds of a trades-union to its benevolent purposes, or even to its use in industrial disputes, strikes, boycotts, etc., without making it liable for the results of litigation. In these cases the moneys in the treasury of a trades-union, although unincorporated, have been held responsible for damages awarded in a suit brought against the union or its members for conspiracy under the Sherman Act, or otherwise. It is, however, difficult to see how such legislation with us could be devised so as to be const.i.tutional, for it would necessarily extend only to a certain cla.s.s of persons, and be framed to exempt them alone from a certain definite legal liability. Nevertheless it has in England been enacted.[1]

[Footnote 1: See above, p. 268: The Trade Disputes Act, 1906, sec. 4.]

CHAPTER XIII

MILITARY AND MOB LAW, AND THE RIGHT TO ARMS

We now come to a field of legislation related to the early English const.i.tutional right to be protected from military law or molestation by the army, and the corresponding right of protection of one's person, or one's house, by force, if necessary.

The right of law, even as against the military, has been antic.i.p.ated in an early chapter; the right to try an officer, or even a soldier obeying orders, in the ordinary tribunals, for homicide, or for ordinary trespa.s.s, as when, in the Dorr rebellion in Rhode Island, a company of militia invaded a woman's house.[1] The const.i.tutional principle against the quartering of soldiers upon private dwellings, and the limitations to the military power caused by the strict confinement of the use of the army to cases of invasion or insurrection, have been added by American const.i.tutions. But most important of all is the supremacy of the common law; the grudging permission of military law even to the army themselves only by a temporary vote; for in England, the Mutiny Act must be pa.s.sed annually, and in the United States, appropriations for the army and navy may not last over two years. It is these statutes alone that make possible the very government of the army, the enforcement of the contract of enlistment, and the condign punishment of deserters.

[Footnote 1: Martin _v_. Mott, 12 Wheaton, 19.]