courts ordinarily go quite as far under the common law. The decisions on this subject rest on the general principle, frequently enunciated, that it is the fundamental right of every individual to carry on his lawful business or labor without interference. Most commonly the courts, in condemning acts of strikers in influencing others to quit employment or to refrain from seeking it, characterize them as "intimidation" or "coercion." Just how far men may go in addressing other men without “intimidating" them is obviously a difficult matter to decide. Apparently the courts have been generally disposed to employ these terms very widely.

The acts of strikers which are generally considered in this connection are either the placing of "pickets" or "patrols" in comparatively small numbers to accost those seeking employment at the plant struck against, or the gathering together of large bodies of men in the vicinity of the works for a similar purpose. The courts have almost uniformly held that the continued presence of a large body of men is in itself a threat, and especially that, where such an assemblage is accompanied by the use of opprobrious language, cries of "scab," threats of injury, or demonstrations giving ground for fear of physical injury, it constitutes unlawful intimidation. It has been asserted by several courts that, while the bearing of pickets may, in some cases, be such as to amount to intimidation, strikers are within their rights if the number of pickets is small, and if they confine themselves merely to informing men of the existence of a strike and of its cause, and to persuading them not to enter employment. As a matter of fact, however, the courts very often, perhaps usually, discover in the acts of pickets evidences of actual intimidation.

The practice of picketing, apart from open threats or intimidation, has been held illegal by courts of ultimate resort in several States. Injunctions against the practice are not infrequently issued by the lower courts in other States, where, perhaps, the higher courts would not uphold such injunctions. Two or three leading decisions have declared that even entirely peaceful picketing involves a degree of coercion. In one recent case a Federal court enjoined "unlawful persuasion" of persons seeking employment; and, while the phrase is vague, and is coupled with others restraining direct threats and intimidation, it seems to imply the idea that the strikers have no right to persuade men not to take their places, presumably because this would interfere with the conduct of business by the employer. This idea of the illegality of interference with the employer's business is doubtless held also by the various inferior courts which have recently prohibited by injunction even peaceful persuasion of those seeking employment. The supreme court of Pennsylvania has even asserted that it is unlawful to consume the time of men seeking employment by urging them not to do so.

The British law of 1875, which legalizes strikes, legalizes also peaceful picketing, defining it as "attending at or near the house where a person resides or works * * * in order merely to obtain or communicate information." Intimidation is expressly forbidden by this statute and various definitions of it are inserted, such as "persistently following," "watching or besetting," "following with two or more persons in a disorderly manner." The courts in Great Britain seem to have interpreted the act rather strictly, holding that picketing in many, if not in most, cases in which it is actually employed involves a degree of intimidation, and is, therefore, illegal. Nevertheless, the workingman of Great Britain consider that there is at least some advantage in the legalization of peaceful picketing for the purpose of giving information.

VI. BOYCOTTS.

Decisions in the United States almost invariably put the ban of illegality upon the boycott as a means on the part of workingmen to force employers to comply with their demands. The boycott is especially condemned when, as often happens, it goes beyond mere concerted refusal of labor organizations, singly or in groups, to

patronize an employer, and extends to the active persuasion of the general public to do the same. In some cases boycotts have been held criminal offenses under the common law, or under statutes prohibiting interference with lawful business or employment, or prohibiting the use of force, threats and intimidation. In a few States boycotts are in terms declared unlawful by statute. In other cases the courts have granted civil damages to employers injured by boycotts, while frequently injunctions have been issued to restrain them.

The element of combination in the boycott is especially emphasized by the courts. They usually hold also that, while a strike has evidently for its primary motive the improvement of the condition of the workingmen, the boycott on its face involves malice, desire to injure another. Stress is also laid on the thought that, whatever the motive, the means-by deliberate attempt to destroy a man's business-are unlawful; that the right to conduct a lawful business is a fundamental right of liberty and property, and that a man may not properly be coerced to act contrary to his wishes in the management of his own business.

In no case decided by the higher American courts has a boycott by workingmen been specifically held legal. In a few instances dissenting opinions of judges have defended the boycott. This was notably true of the opinion of Judge Caldwell, of the United States court in the recent case of Hopkins v. Oxley Stave Company. The judge declared that any individual had the right to refuse to patronize an establishment and to persuade others to do the same, and that the act took on no different character when done by an organization. Moreover, in several leading American cases the trade boycott, that is, boycott of one dealer or manufacturer by the concerted action of other dealers or manufacturers, has been upheld as a legitimate form of competition. Thus, where an association of retail lumber dealers was formed to prevent wholesale dealers from selling lumber directly to contractors, the concerted refusal to patronize a wholesaler who acted contrary to this requirement was upheld by the supreme court of Minnesota. Other courts of ultimate jurisdiction in the United States have, however, taken the opposite stand in almost precisely parallel cases of trade boycott, holding it illegal. In England the House of Lords, several years ago, in the leading case of the Mogul Steamship Company, upheld the legality of the trade boycott; while the recent decision of the same authority in the case of Allen ɛ. Flood, above referred to, asserting that workingmen have the right to refuse to work with nonunion men, or for any other cause, perhaps shows a tendency which will ultimately result in declaring boycotts by workingmen, if not accompanied by intimidation, legitimate.

It is very difficult to see any distinction in principle between the boycott when carried on by a group of workingmen, and the trade boycott. It is true that the trade boycott is more likely to be confined to concerted action on the part of a group of individuals, without especial attempt to influence those not belonging to the group. Nevertheless, the concerted action of a strong association of traders is more powerful in many cases than that of a body of workingmen using their utmost influence to persuade others to cooperate with them in the boycott.

The views of labor leaders as to the justifiability of the boycott are set forth above (p. XLVI).

VII. RAILROAD STRIKES AND BOYCOTTS.

During the past few years there have been numerous important cases in which labor disputes on railways have been brought before the courts, especially the Federal courts. The many cases centering around the great strike of the American Railway Union in 1894 attracted widespread public attention. The injunction has been employed with especial frequency and in the most far-reaching manner in connection with these disputes affecting transportation lines.

The same general principles on which the courts base their decisions in regard to labor combinations in other employments apply also to those in the transportation business. In addition other considerations have been brought forward. Most emphasis is perhaps laid by the courts on the thought that the protection of interstate commerce is the peculiar duty of the Federal Government, and that certain acts of workingmen which tend to obstruct interstate traffic are particularly to be condemned or to be restrained by injunction. Frequently allusion is made to the great seriousness of the effect which railway strikes may have upon the business and even upon the lives of great bodies of the people. The antitrust act of 1890, which is directed against "any contract, combination or conspiracy in restraint of trade or commerce," while apparently designed by Congress primarily to apply to combinations of capital, has been invoked by the Federal courts in numerous instances against combinations of workingmen. Again, the courts have sometimes held the acts of strikers illegal on the ground that they interfere with the transportation of the mails, which is by United States statute a criminal offense. Finally, in one or two cases, the interstate-commerce act of 1887 has been applied against combinations of workingmen, particularly that section which prohibits refusal on the part of any railway or its agents to furnish proper facilities for the forwarding of cars from connecting lines.

The specific acts of combinations of workingmen which have been condemned on the basis of these general principles are numerous. Most frequently injunctions have sought primarily to restrain direct interference with the operation of railways by disabling tracks, switches, and rolling stock, by congregating in large numbers on railway tracks, by preventing men from entering into or remaining in employment through intimidation, threats, or violence, and other similar extreme methods. That those engaged in some of the recent great railway strikes have at times resorted to such practices can scarcely be denied. The courts have, however, gone further in many cases in seeking to restrain interference with the operation of railways. The injunction issued on July 2, 1894, which became the basis for the famous Debs case, prohibited even the persuasion of those in employment to quit or to refuse to perform their duties. It also prohibited the doing of any act "in furtherance of any conspiracy or combination to restrain either of the said railroad companies or receivers in the free and unhindered control and handling of interstate commerce, and from ordering, directing," etc., any other person to commit any of the acts prohibited. Such a wide-reaching injunction would seem practically to prohibit striking itself, and certainly to prohibit the acts of officers of labor organizations in urging a strike. To be sure the use of the words "conspiracy or combination to restrain" might be so interpreted as to apply only to a conspiracy in the technical legal sense, with the specifically unlawful purpose of restraining interstate commerce, without applying to the mere ordering of a strike for the betterment of conditions and not having such illegitimate purpose as its chief motive. Under this injunction Eugene V. Debs was imprisoned for contempt of court on the ground that he had encouraged and incited employees to quit service and to refuse to perform their duties, and on the ground that the entire strike of the American Railway Union, because of its interference with interstate commerce and of its character as a boycott, was an illegal conspiracy. In several cases the Federal courts have issued injunctions commanding employees of railways to perform their customary duties so long as they remain in employment. These injunctions have been especially directed against the practice of refusing to handle certain classes of cars. Thus an injunction was issued to prohibit refusal by the employees of various railroads to handle cars coming from the Toledo, Ann Arbor and North Michigan Railway, on which there was a strike. The court declared that men could escape the injunction by leaving employment-though even this might perhaps be the ground for action for civil damages or for criminal prosecution—but that while remaining in employment they were bound to perform their

ordinary duties. A few court decisions have gone even further and have held that the quitting of employment itself, under certain circumstances, is illegal. Thus the quitting of employment by railway employees to compel the Pullman Company to grant concessions to its employees was condemned by several Federal courts because of the element of boycott. In the cases growing out of this Pullman strike injunctions were not issued directly prohibiting workingmen from leaving employment. As already stated, however, in the Northern Pacific Railway case, somewhat earlier in the same year (1894), Judge Jenkins prohibited absolutely, by injunction, the quitting of employment in such a way as to cripple the service of the railway, although this part of the injunction was stricken out by Judge Harlan of the circuit court of appeals. In several other cases Federal judges have used language, rather in the nature of obiter dicta than of rulings, to the effect that strikes, particularly on railways, are extremely reprehensible and even illegal in themselves, whatever their motive. Such statements as these, however, can not be considered to represent the general attitude of the highest judicial authorities.

The subject of railway boycotts has already been several times alluded to in the preceding discussion as to railway strikes. The railway boycott, in the sense of refusal to handle certain classes of cars, is peculiar in its character, inasmuch as it involves usually only concerted action by the workingmen themselves, without attempt to influence the public to refuse patronage. Again, the boycott is effected often by means of a strike, by quitting employment, in order to avoid handling cars. On the other hand, a railway boycott conducted in this way is even more effective than one which consists merely in refusal of patronage. If the cars of a railway company can not be hauled at all, because of the refusal of the employees, the willingness of the public to patronize the railroad is a matter of no significance. The Supreme Court of the United States in the Debs case seems to hold quite distinctly that the mere cessation of employment is illegal when it is in pursuance of a wide-reaching combination of railway employees to refuse to handle certain cars, with the design of so injuring the railways and the public as to lead them to bring influence to bear upon another person to carry out a particular line of action. It is, however, impossible to dissociate the single element of boycott in this case, or the single element of quitting employment, from the elements of violence, intimidation, and interference with interstate commerce, which were supposed to be connected with this great dispute.

VIII. INJUNCTIONS IN LABOR DISPUTES.

As already seen in the preceding discussion, a conspicuous feature of recent cases before the courts regarding labor disputes has been the employment of the extraordinary equity process of injunction. By the injunction a court commands certain persons to refrain from doing specified acts. A violation of the order becomes then contempt of court, subject to summary punishment, in fine or imprisonment, by the court itself after hearing. During the past decade the courts have issued such injunctions against workingmen with especial frequency, particularly during strikes. The employment of this process during the great railway dispute of 1894 caused exceedingly widespread discussion. There can be no doubt that injunctions have been mployed much more extensively in labor disputes in the United States than in Great Britain. Workingmen are almost uniformly opposed to the recent extended employment of this process, and many lawyers and other citizens not directly concerned with labor have taken a similar position.

One serious ground of objection is that ordinarily not sufficient opportunity for hearing is given before the injunction is issued. Judges may issue injunctions either in open court or in chambers, and a temporary injunction may be granted with no notice whatever to those affected by it. Before an injunction is made permanent an

opportunity for hearing is given, but in many instances the hearing is a considerable length of time after the preliminary injunction has been granted, and the object of the restraint may already have been effected. Of course, where an injunction is issued against unknown defendants, or against all persons in general, as sometimes happens, no possible opportunity can be given to all those affected to put in an appearance. Complaint is made especially that the injunction has in many instances been directed against the commission of acts which are held by the courts to be in themselves criminal, and that it has thus taken away the right of trial by jury from those resorting to such acts. In almost innumerable cases injunctions have been issued prohibiting boycotts, intimidation, violence, picketing, and other practices which the courts regularly treat as ground not merely for civil damages, but for criminal prosecution. The issuance of injunctions of this character has been defended by the courts in elaborate opinions, and in the Debs case the Supreme Court of the United States placed the sanction of its approval on the practice. It is argued that, while the acts referred to may be criminal, they also result in direct injury to private individuals, in their property or pecuniary rights. This injury is a continuing one and is irreparable by civil suit, because the parties causing the injury are usually financially irresponsible. It has always been the practice of the courts to restrain a continuing and irreparable pecuniary injury by injunction, and it is maintained that the mere fact that the same act is also a crime does not affect the matter.

Some of those who oppose the extended use of the injunction are inclined to admit the validity of its occasional use to protect the property rights of a private individual, even against acts which are criminal, but they assert that in many cases the courts have considered the public injury rather than the injury to a single individual as the chief ground for issuing the injunction. Where this is the case, the injunction, according to these writers, adds nothing to the force of the ordinary criminal law. The only penalty which it can threaten is fine or imprisonment of the same nature as that which follows criminal prosecution. The fact that the punishment for violation of injunction may be inflicted somewhat more promptly, without the prolongation of a trial, is, it is maintained, no justification for its use. The fundamental object in the use of the injunction, in the opinion of such legal writers, as well as in the opinion of workingmen generally, is to make punishment more sure by avoiding trial by a jury, which might perhaps be influenced by sympathy or class feeling in favor of the defendant. It has always been the principle of English and American criminal law that every man is entitled to a fair trial by a jury of his peers. The summary character of hearings before judges regarding violation of injunctions, giving less opportunity to the defendant to present his case fully, is also complained of, as well as the absence of the right of appeal.

Labor organizations generally favor the enactment of legislation which shall restrict the power of the courts to issue injunctions or which shall at least provide for jury trial in case of violation of them, except under certain special circumstances. A bill of this sort has been laid before Congress and before various State legislatures, and the legislature of Virginia actually placed it upon the statute books. This measure declares that all contempts, not actually in the presence of the court or committed by court officers or witnesses, shall be known as indirect contempts, and that the person accused shall be entitled on his demand to a trial by jury, which shall fix the amount of his punishment in the verdict. This measure also permits appeal in contempt cases. The supreme court of Virginia has held an act of this sort unconstitutional, on the ground that the State constitution establishes the courts as an independent branch of the government not subject to the control of the legislature, and that they are entitled to exercise the immemorial functions which have belonged to courts under Anglo-Saxon governments; that the courts have an inherent right of self-preservation, and must have authority to issue orders properly falling within their sphere and to enforce them directly.