specified in the statute. While allowing certain strikes, therefore, the result of their view of the law was, as observed by Stephen, "to render illegal all the steps usually taken by workmen to make a strike effective." By reason of the great length of time during which statutes prohibiting such combinations had been in force, precedents of indictments at common law for these conspiracies were few and of doubtful authority, and the better opinion now seems to be that the court erred in its interpretation.* The view of the English courts of the time is unofficially summed up by Sir William Erle in his "Law Relating to Trade-Unions." This work was practically a part of the report submitted by the royal commission appointed to examine the law relating to trade-unions, of which commission Sir William Erle was a member. He had previously been an eminent judge of the Court of Common Pleas. Sir William Erle says: "Every act causing an obstruction to another in the exercise of the right comprised within this descriptiondone, not in the exercise of the actor's own right, but for the purpose of obstruction, would, if damage should be caused thereby to the party obstructed, be a violation of this prohibition." The question of course comes on the meaning of the terms. What does "obstruction" mean to Sir William Erle? He defines it an "unlawful coercion." But when he comes to define unlawful coercion it is impossible to distinguish this from whatever is injurious to the employer, and is expected to be injurious. He says on page 74, "Although a combination merely for the purpose of raising wages is permitted by the statute,† and a simultaneous stop from work of several men really intended for that purpose is permitted, yet a simultaneous stop for the immediate purpose of inflicting a loss upon an employer, and so of coercing his will with an ultimate view of raising wages, does not seem to me to be *Wright on Cr. Cons. 56; Master Stevedores' Assn. vs. Walsh, 2 Daly, 1 (1867); and Curran vs. Treleaven, Cox's Cr. Cases, v. 17, 356 (1891). † 6 Geo. IV., C. 129. permitted." On which Sir James F. Stephen thus comments, in the words placed at the head of this paper: "It is difficult to see how, in a case of a conflict of interest, it is possible to separate the objects of benefiting yourself and injuring your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other, and to say it is lawful to combine to protect your own interest but unlawful to combine to injure your antagonist, is taking away with one hand a right given by the other." In 1875 was enacted the Conspiracy and Protection of Property Act,* a statute of the utmost importance. Of this I shall speak further. The courts were greatly assisted in the repressive tendencie which they manifested toward labor organization by the ve peculiar nature of the crime of conspiracy. The boundaries of this crime are altogether indefinite, not to say unknown. Not only is it a criminal conspiracy to combine to commit a crime, and to combine to commit an act which, if done by one, would subject him simply to an action for damages-but it may be conspiracy to combine to commit an act which would be entirely innocent if done by a single person. This is where considerations of "public policy" are applied. What the conduct is, which men may innocently do alone, but becomes criminal if done together, rests in the discretion of the courts. It is defined in no statutes and no decisions. It is notorious that many members of the legal profession believe that the scope of this crime should be restricted; for its uncertainty and the power which it gives the court of saying what public policy shall be, are deemed equally objectionable. "There is perhaps no crime, an exact definition of which it is more difficult to give than conspiracy." "No branch of the law has gone through so many transformations as the law relating to conspiracy."§ Mr. *38 and 39 Vict. "A reason which puts an end to all argument." Morawitz on Priv. Corps., 2d ed., section 729. ↑ State vs. Donaldson, 32 N. J. Law, 152 (1867). State vs. Glidden, 55 Conn., 60., (1887). Wright in his learned monograph on the subject has ascertained that the law had its origin in the Star Chamber,* "a court which legislated as well as judged, and which, as Lord Clarendon says in his 'History of the Great Rebellion,' held for honorable that which pleased and for just that which profited." From this beginning it gradually extended until in 1717, Hawkins, in his "Pleas of the Crown," lays down the general doctrine "that there can be no doubt that all conspiracies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law." On this Mr. Wright comments, "A proposition to which unless by 'wrongfully' he meant by criminal means, the authorities cited by him with the exception of the argument of counsel as repo ed si by Keble, furnish little or no support." Mr. Wright mantains that the view held by the English court after the passage of 6 George IV., in 1825, that combinations for controlling masters were criminal at common law-was erroneous, and the establishment of such a rule "would seem to be a modern instance of the growth of a crime at common law by reflection from statutes, and of its survival after the repeal of those statutes, somewhat in the same manner in which combinations for certain kinds of fraud continued to be criminal after those frauds had ceased to be punishable apart from combination" (p. 56.) In recent times the laboring classes have attempted to better their condition and command the labor field by more extensive combinations. The boycott is a modern invention. The events from which this word originated are thus narrated in Justin McCarthy's "England under Gladstone." "Captain Boycott was an Englishman, an agent of Lord Earne, in the wild and beautiful district of Connemara. In his capacity as agent he had served notices upon Lord Earne's tenants. . . . The population of the region for miles around resolved not to have anything to do with him, and • See Poulterers' Case, 9 Co. Rep., 55 B. † Argument of counsel in State vs. Glidden. as far as they could prevent it, not to allow any one else to have anything to do with him. His life appeared to be in danger-he had to claim police protection. . . . . To prevent civil war the authorities had to send a force of soldiers, and Captain Boycott's harvests were brought in guarded always by the little army." This lawless and unjustifiable proceeding was the origin of the word, and its unfortunate origin has undoubtedly contributed to the prejudice which the court feels toward acts called by this name. For the meaning of the word, by a natural process of development, has been extended until it now includes peaceful labor movements. The definition in Webster's Dictionary, edition of 1890, carries no necessary implication of violence. "To combine against a landlord, tradesman, employer or other person to withhold social or business relations from him and to deter others from holding such relation." The idea of our courts, however, has uniformly been that the word implied lawless violence, or what directly led to it.† At all events, in most of the cases decided against boycotting in this country by way of injunction to restrain it, or by indictment to punish it, there has been present a distinct element of violence. This is true in People vs. Wilzig, 4 N. Y. Cr. Rep., 403 (1886); in People vs. Holdorf, in People vs. Kostka (same volume) and numerous other cases. Undoubtedly the decisions have gone farther. They pronounce a boycott an unwarrantable attempt to interfere with an employer's business, and as he must frequently submit to it or be ruined, as practically coercion. The avowed purpose being to ruin a man's business, it makes no difference whether force be used or not. I Let us recall the language of Sir James F. Stephen, which I have already quoted. "It is difficult to see how, in case of a conflict of interest, it is possible to separate the objects *The italics are mine. † See language of court in State vs. Glidden, 55 Conn., 50, (1887.) of benefiting yourself and injuring your antagonist.' The passage of the Conspiracy and Protection of Property Act (38 and 39 of Vict., 1875) was an appreciation in England of this manner of reasoning. Its important section is this: “An agreement or combination by two or more persons to do, or procure to be done, any act in contemplation or furtherance of a trade dispute between employers and workmen, shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime." This puts an end to conspiracies to accomplish something relative to trade disputes which one person might without criminality do alone. Intimidation is forbidden under a severe penalty, and what is intimidation is very fully defined. It includes violence to the other, his wife, children, or injury to his property; persistently following such person about; hiding his tools or clothes; and watching and besetting the house where he is. The advanced character of the English law on this subject as compared with our own is shown by two very recent cases, Gibson vs. Lawson and Curran vs. Treleaven.* In the first the employes at an iron works notified their employer that if a certain fellow-workman did not join their union they should quit. The fellowworkman was notified by the superintendent of the employer, but declined to join the men's union and he was dismissed to avoid a strike. The men were indicted, but the court held that their conduct was allowable under the recent act. The second case is still stronger. Here an employer was notified by members of a trade-union that if he continued to employ non-union men the unions would do their best to injure his business, and on his declining to bind himself, the defendant, a person in authority in the trade-union, called to the employer's men to quit work, which they did. This conduct also was decided to be no longer criminal. There was no malice in fact toward the employer, the purpose of the men being to obtain higher wages. * Cox, Cr. Cases, 17, p. 356 (1891). |