This is substantially the position for which I contend-the position of the English law. Peaceable efforts,-employed not for malice but for the interest of those using them, for the bettering of their condition,—to induce others to withdraw their labor from an employer whose conduct is deemed hostile to the general cause, should not be restrained or punished by the courts. No matter if the purpose be to dictate to the employer, to control his business, to direct him, if possible, as to whom he will employ and what he will pay, and to prevent others from taking the vacant places, -to ruin him, if you will. All these acts done under the abovementioned restrictions are precisely in the spirit of the familiar industrial processes about us.

Consider the nature of the act when a powerful commercial establishment puts down prices in order to undersell weaker competitors, or enters into an arrangement with other houses by which this is done. This is lawful competition, yet it is done in a deadly spirit of destruction, with an intent to ruin which has no counterpart in labor movements. The small dealer is without refuge. The lesser amount of his capital puts him at a disadvantage from which he cannot escape, and as this underselling is necessarily done by a successful house, it means an effort to make greater, profits already great. Whereas workmen may well be excused for a certain hardness toward others, having rarely more than a narrow margin between them and penury. In truth every kind of competition, so far as it is beneficial to one, is to nearly the same degree injurious to others. Every merchant who makes an attractive display of his goods, who advertises widely and ingeniously, who searches for popular novelties, does all these things in order to draw custom to himself. And this increased custom he perfectly well understands is taken from other merchants, and he may therefore be said in a sense to follow a line of conduct for the purpose of injuring others. It is very difficult to distinguish at this point. Competition is a state of war. The

test of injury to one's opponent is clearly no test. If force be barred and actual malice, when this is the principal motive of the conduct in question, all will have been done that is practicable.

Here is the language of the English court in the very recent case, Curran vs. Treleaven, cited above, which may be said to express the latest position of the English law on this question:

"The recorder held that though an agreement to strike to benefit themselves would be now a lawful agreement, a strike which would have the effect of injuring the employer is illegal and indictable at common law. He cites in support of this view some phrases from the judgments of the Lords Justices in the case of Mogul S. S. Co. vs. McGregor et als. But with deference he has somewhat misapprehended It is true that where the effected an action will lie

the point of those observations. object is injury, if the injury is for the malicious conspiracy which effected it; and therefore it may be that such a conspiracy, if it could be proved in fact, would be indictable. But it was pointed out in some detail by the court of first instance, that when the object is to benefit one's self, it can seldom, perhaps it can never, be effected without some consequent loss or injury to someone else. In trade, in commerce, even in a profession, what is one man's gain is another's loss; and where the object is not malicious the mere fact that the effect is injurious does not make the agreement either illegal or actionable and therefore not indictable."

The common law doctrine of freedom of trade, of unlimited competition, needs revision. It has inherited from feudal times an hostility to united labor, and is not consistent with itself. Sir William Erle expounds this doctrine in language that might have been written by Herbert Spencer, and the idea of which seems actually identical with Mr. Spencer's famous definition of justice. "Every man has a right under the law as between him and his fellow-subjects,

to full freedom in disposing of his own labor and his own capital according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from obstruction to the fullest exercise of this right which can be made compatible with the exercise of similar rights by others."* But the practice is otherwise. As a matter of fact, says Stephen, "It is no less true that freedom of trade in the wide sense, namely its freedom from all legislative interference, the doctrine that each individual man and every body of men however constituted, is the best judge of his or their own interests and ought to be allowed to pursue those interests by any method short of violence or fraud, is quite a modern doctrine. It was for many centuries opposed to the whole current of English legislation." The law has not yet adapted itself to the new position of the laboring class, arising from the introduction of the great industry, a thing of hardly a century in England and of less than half a century in our country. The competitive idea must be developed if it is to exist at all.

The process by which ideas on these subjects have arisen and developed is interestingly shown by Sir Henry Maine in his work on "Village Communities." His researches led Maine to the conclusion that in the ancient village community which was the original political unit among Aryan peoples, price was regulated by custom, and that to seek the highest possible price for one's goods would have been regarded as immoral conduct. The highest-possible-price idea now current in traffic was an outcome of trading at the markets or fairs with the inhabitants of other communities, who were regarded as more or less in the light of enemies. From this source the idea spread over the world. This conclusion shows, if it were necessary to show, the folly of attaching any particular sacredness to principles of conduct because they are old.

*Op. cit., p. 12.

†Op. cit., v. iii, p. 203.

The laboring class of a country is bound together by a common interest of vital importance. The earnings in the employments called professions are not the same for different members. Greater skill or diligence brings greater rewards. But the work of the laboring classes so called is relatively unskilled. In the occupations in which they are engaged all can do the work about equally well. There is little opportunity for superiority and all are about equally paid. Of a half dozen physicians or architects or electrical engineers in a city no two will be receiving the same compensation, but able-bodied car-conductors or stevedores or truckmen are paid the same wages. Any one man's greater skill will not bring him an increase. The wages of all must rise, if of any, and this fact makes union natural and necessary. Our civilization requires for its continuance the performance of a vast amount of unskilled routine labor and seems to make imperative the existence of a laboring class. The only way that these classes can improve their condition is by united action among their members. This shows the supreme importance of labor unions. It would justify them and should dispose the law to regard them favorably if their success had been far less than it has. "The fact was shown in evidence before the British royal commission which reported in 1869 that there have been fewer disputes with employers and greater permanence of wages in the trades with the strongest and richest and most extended unions."* Other causes may benefit the working classes by diminishing the prices of the articles which they consume, but the only way in which they are likely to obtain more of those articles, the price remaining the same, is by some means which regulates and controls the supply of labor.

This necessary unity of interest among the members of the working class is an important element in the consideration of labor questions. The cause of each is the cause of all. Their purpose is, other things being equal, to obtain

*Johnson Harvester Company vs. Meinhardt, 60 How. Prac. Rep., p. 179.

the highest possible wages for what they do. The purpose of their employers is, other things being equal, to obtain the work for the least amount of money. The employers, on their side, have a comprehensive view of the whole labor field. While each employer is frequently competing to the death against others in the same line of business, this competition does not necessarily involve any conflict between them as to the wages paid their employes. It is not infrequent for employers in the same business to agree on rates of wages. Such a course is evidently legal, but it operates as a combination against the men. And such a combination-but a few persons being in it-can usually be made without great difficulty. A dozen employers of labor meet at lunch in some metropolitan hotel, and in a single afternoon make arrangements which control millions of dollars and affect the wages of thousands of employes. On the other hand the men labor under inherent disadvantages. They have not usually as good a mental training for the management of such large affairs. They have not the same knowledge of the state of the business, of the profits enjoyed by their employers. They are in danger of being misled by the headstrong or the selfish; and the countless differences of disposition, temper and nationality are so many disintegrating forces. It must require a fair degree of prudence, self-restraint and wisdom, in the members of a labor organization, to make it successful, and the fact that many fall to pieces is a proof of this. It is for the courts to say whether they will favor these useful organizations by a liberal course of construction, or discourage them by its opposite.

Boston.

CHESTER A. REED.

NOTE.-While this paper was in press the injunction issued by Judge Jenkins, Circuit Judge for the Eastern District of Wisconsin, in the case of the Receivers of the Northern Pacific Railroad Company, came to my attention. Although in accordance with the views above expressed, this injunction seems to me all wrong. I can see but one respect in which it is not supported by decided cases of authority, and