I'l c ^ (Jorn^U ICatu i>rl|0nl IGibratji KF3431.C6T" ""'""">"-"'"'>' TlH«im«f;i!l,?.S' 'ockouts and labor o'^'^ 3 1924 019 905 458 pAf TE DUE . Starling, i Siderfin, 174^ I Kebles, 650, 655, and i Levinz, 125; which was an indictment for conspiring to depauperate the farmers of the excise, which would render them incapable of paying the King his revenue. It is not known how the case came to be called by the name of the Tubwomen v. the Brewers of London, but is supposed to have been the popular local name given it from the fact that the conspiracy was to stop brewing a certain cheap beer, which, on account of its cheapness, was the favorite and in fact only beverage that the poor 8 STRIKES AS CONSPIRACIES. [§ 3 sequent cases in England/ and was the early rule in this country.^ But not only the doctrine of the case, but the volume of reports in which the case is reported have been savagely assailed both in England and the United States.^ Before considering the adverse criticisms upon this case it might be well to have a clear idea of it. Several journeymen tailors in the town of Cambridge were indicted and convicted of conspiring to increase their wages. There was a motion in arrest of judgment for mere matters of form in the indictment, which has no bearing upon the point under considera- tion. But the objection was raised that it did not appear upon the face of the indictment that a crime had been committed, but that it was only charged a conspiracy and refusal to work at the present rate of wages per day, when in fact under 5 Bliz. C, 4, they were not obliged to work by the day but by the year. To which it was replied that the refusal to work was not the crime, but the conspiracy to raise the wages. of London and particulary the poor workingwomen could afford, and the failure to brew it caused great commotion among that class of people. 1 Rex V. Hammond & Webb, 2 Esp. 719; Rex v. Salter, 5 Esp. 125; Rex V. Bykerdike, i Moody & Robinson, 179; King v.. Eccles, i Leach, 274, 3 Doug. 337; Rex v. Ferguson, 2 Starkie, 431; Reg. v. Bunn, 12 Cox C. C. 316; Reg v. Druitt, 10 Cox C. C. 592; Rex. v. Mawbey, 6 Term. Rep. 619. 2 People V. Trequier et al. i Wheeler's Crim. Cases (N. Y.), 142; People V. Fisher, 14 Wend. (N. Y.) 1; People v. Melvin et al. 2 Wheeler's Crim. Ca9es (N. Y.) 262, or Journeymen Cordwainers of the city of New York, Yates Select Cases, hi; Philadelphia Journey- men Tailors, pamphlet printfed at Phila. 1827, scarce; Commonwealth V. Carlisle, Brightly's Rep. (Pa.) 36; State v. Donaldson, 32 N. J. L. 151; Journeymen Cordwainers of Pittsburgh, pamphlet; Common- wealth B. Hunt, 4 Mete. (Mass.), 11 1. 3 The Master Stevedores Asso. v. Walsh, 2 Daly (N. Y.) i; Rex. V. Williams, i Burrows (Eng.), 386; Rex. v. Harrison, 3d ed., 13, 26; Wallace's Common Law Reporters (3 ed.), 226. § 3.J ORIGINAL DOCTRINE. H Then the Court said, "The indictmeiit it is true, sets forth, that the defendants refused to work under the wages which they demanded ; but although these might be more than is directed by the statute, yet it is not for the refusing to work but for the conspiring that they are indicted, and a tjonspiracy of any kind is illegal, although the matter about which they conspire might have been lawful for them to do, if they had not conspired to do it," &c. This is all of the case in which we have any interest. It was decided in 1721, and it certainly does decide that the mere conspiring of the workmen to increase their wages was indictable, and the judgment of conviction was affirmed by an unanimous Court. Stephens^ says " no case has ever been cited in which any person was, for having combined with others for the raising of wages, convicted of a conspiracy in restraint of trade at common law before the year 1825. There is indeed one case, that of the journeymen tailors of Cambridge 8 Modern 10, which may perhaps be an authority the other way but this appears doubtful." 2. "There are some dicta to the effect that such combinations would be unlawful. The most impor- tant of these is the dictum of Grrose, J., in E,. v. Mawbey, 6 T. E,., 619 : 'In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement among themselves, would not have been illegal. As in the case of journeymen conspiring to raise their wages ; each may insist on raising his wages if he can, but if several meet for the same purpose it is illegal, and the parties may be indicted for a conspiracy.' This dictum is an illus- I3 Stephen's Hist. Crim. Law of England, 209 par i, 2. 1.0 STRIKES AS CONSPIRACIES. [§ 3- ttation not necessary to tlie decision of R. 'o. Mawbey, and founded as it seems to me upon tlie case of the Cambridge tailors." In commenting upon the case of the journeymen Tailors of Cambridge, the Court, in the case of the Master Stevedore's Association v. "Walsh,i gayg^ » it is not, nor has^it ever been, a rule of the common law that any mutual agreement among jurneymen for the_ purpose of raising their wages, is an indictable offense, or that they are guilty of a conspiracy if, by precon- cert and arrangement, they refuse to work unless they receive an advance of wages. The Chief Justice (in People V. Fisher, 14 Wend. 9), admitted that he had found but few adjudications upon the subject, and that the offense of conspiracy had been left in greater uncertainty by the common law than most offenses. He remarked that precedents in the absence of adjud- ications were some evidence of What the law is, and he referred to several, but none of them warrant the conclusion that they were founded upon any rule of the common law. He referred to but two adjudged cases : The King v. The Journeymen Tailors of Cam- bridge 8 Modern, 11, and The Tubwomen v. The Brewers of London, the last of which cases, he says, has been cited as sound law by all subsequent criminal writers. There is no report of any case under such name of the Tubwomen v. The Brewers of London. It is merely mentioned by name in the case first above cited, as authority for the proposition that a conspiracy of any kind is illegal, though the matter about which the parties conspire might have been lawful for them, or any of them, to do if they had not conspired to do it. The first volume of Modern Reports, in which reference is found, is one of the least reliable of the 1 The Master Stevedore's Association v. Walsh., 2 Daly, (N. Y.) i. § 3.] ORIGINAL DOCTRINE. 11 English reports, being full of inaccuracies, blunders and misstatements. Burrows, in his reports, speaks of it as 'a miserable, bad book,' and says that on being cited, the Court of Kings Bench treated it with the con- tempt that it deserved (1 Burr. 3, 86, 3 id. 1326); and by an excellent authority upon the books of reports and their reporters, it is characterized by the epithet of ' execrable,' (Wallace's Common Law Reporters, 3 ed. p. 226). The title 'The Tubwomen v. The Brewers of London,' is undoubtedly a mistake, and it has been conjectured that the case referred to is the King v. Starling and others, reported in 1 Lev. 125; 1 Sid. 274; 1 Keb. 350 (see the conjectures of Mr. Bmmett and of Mr. Sampson respecting it, in Yates Select Cases, pp. 164, 211, 212). I entertain no doubt but that this conjecture is correct, and a brief statement of that case will suffice to show what was determined by it. The defendants — Brewers of London — were found guilty of a conspiracy for - agreeing that they would brew no small beer — which was the drink of the poor — for a certain length of time, nor ale, except at a certain price, with the intent of moving the com- mon people to pull down the exciee-house and to bring the excisemen into public odium, that they might be inlprisoned and disabled from paying their rent to the government, to the diminution of the revenue ; which was a very clear case of conspiracy, the design being to impair the public revenue, to inflict pecuniary injury upon all the excisemen, and to stir up a public tumult. Assuming it to be as I have no doubt it is, the case referred to under the suppositious title of the Tubwomen v. Brewers of London, it would have been more correct to have said that it warrants the con- clusion that though the brewers, or any of them, had the right to cease brewing or to raise the price of their 12 STRIKES AS CONSPIRACIES. [§ 3. ale, it was unlawful for them to combine to do so for such an object as the one above stated. The case is an authority simply for a familiar principle of the criminal law, that it is a conspiracy to combine to do a lawful act for an unlawful purpose, or by unlawful means. "As respects the remaining case (The King v. The Journeymen Tailors of Cambridge), it is also found in this discredited volume of reports, in further con- demnation of which I may cite the remark of an eminent English judge, Justice Wilmot, that, 'nine cases out of ten in this book are totally mistaken.' (The King v. Harris, 7 Term E. 238). But even the case, as reported there, affords no ground for the inference that there was any such rule at the common law as Chief Justice Savage supposed. In 1721, when ■the case was decided, there were acts of Parliament regulating the rates of wages. The defendants, ac- cording to the report, were indicted for refusing to work unless they received higher rates than the statute allowed. And, as far as can be gathered from the confused statement of the reporter, the conviction was held good, because they had conspired to raise their wages beyond what the law permitted. These early English statutes, regulating the price of labor, being wholly inappreciable to us in our colonial con- dition, were never in force in this country, and formed no part of the law of the Colony of New York at the adoption of our State Constitution in 1777. This decision, therefore, was limited to England, deriving its whole effect from the English statute, the provisions of which it was held the defendants had conspired to defeat. It has never been decided in England or America that it was unlawful for journey- men to agree that they would not work, except for § 3.J ORIGINAL DOCTRINE. 13 certain wages, or for master workmen to g-gree that they would not employ any journeymen except at certain rates, (Com. v. Carlisle, 1 Hall's Journal of Jurisprudence for 1822, p. 225)." Combinations free from the object of coercion are lawful. The court in continuing says, " But it may be in their power to secure by associated effort what it would not be possible for any one of them to accomplish alone; and that they should have the right to associate together for mutual protection of their individual interest is so plain, that it is singular that it should ever have been questioned. Journey- men may be as well acquainted as their employers with the causes which affect the price of labor, and in this country are generally well informed in such matters. They may be quite as well able to judge whether the ordinary profits of employers justify a reduction or an increase in the rate of wages. Why, then; should they not have the right to come together to consider the condition of the branch of industry in which they are operatives, to impart information to each other, to exchange their views, and discuss in a body a matter in which they are so deeply interested? Merchants meet daily upon ' change,' that they may be thoroughly informed upon all matters relating to the traffic in which they are engaged ; and why should not journeymen meet together to consider upon a subject so important to them as the general rate of wages. The exact sum which should be required for a day's wages may be fluctuating and uncertain, through the operation of other causes than those of demand and supply, such as the instability of the currency, by which the value of the paper representa- tions of a dollar changes as the circulating medium is increased or diminished. These are causes affecting 14 STRIKES AS CONSPIRACIES. [§ 3. the price (jf their labor ; and if they come together, and as the result of their deliberations conclude that a certain rate would be just and reasonable, and that they will not work for less, it would be the height of injustice to call such an act a crime, by declaring that it was, in the language of the statute, unlawfully conspiring to commit an act injurious to trade or commerce, for which each of them may be indicted and punished. "It is otherwise, however, where organizations are formed to intimidate employers, or to coerce other journeymen; and it matters little what are the meas- ures adopted, if the object of them is to interfere with the rights or control the free action of others. It was held, under the English statute I have referred to, that it did not authorize workmen to combine for the purpose of dictating to a master whom he should employ (Rex v., Bykerdike, 1 M. & Rob. 179) ; and the- several convictions in this country have been in cases where coercive measures have been resorted to, either to prevent master workmen from employing journey- men except at certain rates, or to intimidate journey- men from engaging below such rates, or to compel them to become members of the combination. Every man has the right to fix the price of his own labor to work for whom he pleases — and for any sum he thinks proper ; and every master workman has equally the right to determine for himself whom he will employ, and what wages he will pay. Any attempt by force, threat, intimidation, or other coercive means, to control a man in the fair and lawful exercise of these rights is, therefore, an act of oppression, and any combination for such a purpose is a conspiracy. " It may, therefore, be laid down as the result of this examination, that it is lawful for any number of § 3.] ORIGINAL DOCTRINE. 15 journeymen or master workmen to agree, on the one part that they will not work below certain rates, or on the other that they will not pay above certain prices ; but any association or combination for the purpose of compelling journeymen or employers to conform to any rule, regulation or agreement fixing the rate of wages, to which they are not parties, by the imposi- tion of penalties, by agreeing to quit the services of any employer who employes a journeyman . below certain rates, unless the journeyman pays the penalty imposed by the combination, or by menaces, threats, or intimidation, violence, or other unlawful means, is a conspiracy for which th.6 parties entering into it may be indicted." Special prominence is given to the Master Steve- dore's case from the fact that it leads the revolt in this country against the English rule, that a mere con- spiracy among workmen to quit simultaneously was an indictable offense. In the case of E,ex v. Williams, 1 Burrows, 386, after the citation of a case in 8 Modern, there is a reference to a marginal note by the reporter in brackets as follows, [a miserably bad book, entitled " Modern eases in law and equity."] But there is not a word uttered by the Court or counsel, if Burrows faithfully reported the case, in. condemnation of the volume. In Rex V. Harrison, 3 Burrows, 1326, there is also a reference to the following note of the reporter, "'N. B. Wannel's case being here cited from 8 Mod., 267. The Court treated that book with the contempt it deserves ; and they all agreed that the case was wrongly stated there. (I mean the old edition of that book.)" The qualification in the parenthesis is sig- nificant. It implies that other editions, probably 16 . STRIKES AS CONSPIRACIES. [§ 3. corrected ones, were all rigM. There is not a word In the opinion of the Court unfavorable to the volume. But in the case of the King v. Harris, 7 T. K., 239, the objection to the volume takes a more tangible shape in the opinion of the Court : "This matter also came before the Court in Fv. 9 Greo. 1, on a conviction on the Stat. Geo. 1 C, 48 ; and there the conviction was only ideo consideratum est quod eonvictus est, &c.; and though that point was not there decided, it appears to have been the sense of the Court that the conviction was bad for that reason. That case is reported in Modern cases in Law and Equity; (R. v. Ashton, 8 Mod., 175) but it is totally mistaken there, as indeed are nine cases out of ten in that book." It, therefore, becomes important to know whether the case, as reported, is correct and also the doctrine of law laid down in it. That each reader may judge for himself, the cases, the King v. the Journeymen Tailors of Cambridge and the King v. Sterling or Starling are given in full in the notes.^ While it is iThe following case is copied from the fifth corrected edition, by Thomas Leach, Esq., of the Middle Temple, Barrister at Law: Rex V. Journeymen Tailors of Cambridge, 8 Modern, lo, Monday, November 6, 1721. One Wise, and several other journeymen taylors, of or in the town of Cambridge, were indicted for a conspiracy among themselves to raise their wages; and were found guilty. It was moved in arrest of judgment, upon several errors in the record, First. That the defendants, having the addition of "yeomen," are notwithstanding, charged with a conspiracy not to work as "journeymen taylors," which is a repugnancy. It was answered, that "yeomen is a good addition, for a yeoman may be a taylor. ' ' The Court held that there was no inconsistency between the addi- tion of "yeoman" and the addition of "Taylor." § 3.] ORIGINAL DOCTRINE. 17 hardly worth the trouble, yet as the opinion of Wal- lace as to 8 Modern is referred to in the Master Stevedores' case, it may be as well to present all the Secondly. The caption is not good, being "ad general quartial sess. p'acis, &c," omitting "domini regis" after "pacis." This excep- tion has been several times held fatal, and is very different from the cases where they are omitted after the words just dicit domini regis ad pac. in com.pmd, consefsand, affigr." In Hilary Term in the first year of Queen Ann, and in Hilary Term in the eleventh year of Queen Ann , two indictments were quashed for this exception. It was answered that this objection has been often overruled, for it must be intended the King's peace, and that the case in Ventris has , been denied for law. The Court was of the same opinion, and said that of late years this objection had never prevailed. Thirdi,y. No crime appears upon the face of this indictment, for it only charges them with a conspiracy and refusal to work at so -much, per diem, whereas they are not obliged to work at all by the day, but by the year, by 5 Eliz. c. 4. It was answered, that the refusal to work was not the crime, but the conspiracy to raise the wages. The Court: The indictment, it is true, sets forth that the defendants refused to work under the wages which they demanded; but although these might be more than is directed by the statute, yet it is not for the refusing to work, but for conspiring that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspire might have been lawful for them, or any of them, to do, if they had not conspired to do it, as appears in the case of the Tubwomen v. the Brewers of London. Fourthly. That this fact being laid in the town of Cambridge, it did not appear by the record in what county Cambridge was, which it ought to do, because there are other towns of that name in Eng- land, viz. in Gloucestershire; and so it is a mist- trial, for there is no more reason to award the - venire to the sheriff of Cambridge than any other county. The venire facias is awarded to the sheriff of the county of Cambridge, commanding him to summon a jury "de vin- cineto villce Cant.'" In the margin of the indictment it is villa de C; in the indictment the venire is alleged only assud mllam de C; and although the certiorari to remove it is directed "just, domini regis de villa C. in com. nostra C." this error is not helped by naming the county in the certiorari to remove the indictment, because that writ is only an order of this court. Neither shall it be intended that Cambridge is in the county of Cambridge, because 18 STRIKES AS CONSPIRACIES. [§ 3. objections to that volume. In his work on the com- mon law reporters, Wallace bases his judgment on that of Mr. William Green of Virginia. He says, this is a criminal case, and intendments are never allowed in pros- ecutions of this nature. It was answered, that the fact being laid in the town of Cambridge it shall be intended that the town is within the county of Cambridge, for which Long's Case is an authority in point. The Court. If a venire facias be directed to the sheriff of Cambridge to return a jury, and he returns one de viceneto Cctnta- brigicE, it is good; for Cambridge being mentioned in several acts of Parliament, the Court must take notice of such acts, and upon such a return will intend that Cambridge is in the county of Cam- bridge. In the case of Withers v. Warner, in Hilary Term, in the sixth year of George the First, we took judicial notice that "Lon- don " and " the city of London " are all One. The certiorari is directed, "To the justices of our lord the King of the town of Cam- bridge, in our county of Cambridge," and returned by the justices of the vill in the county of Cambridge ; so that it will be a very for- eign intendment to suppose the vill to be out of the county. FiPTHi,Y. This indictment ought to conclude contra formani statuti; for by the late statute 7 Geo. i. C. 13, journeymen taylors are prohibited to enter into any contract or agreement for advancing their wages, &c. And the statute of 2 and 3 Edw. 6, c. 15, makes such persons criminal. It was answered, that the omission in not concluding this indict- ment contra formani statuti is not material, because it is for a con- spiracy, which is an ofiEense at common law. It is true, the indict- ment sets forth, that the defendants refused to work under such rates, which were more than enjoined by statute, for that is only two shillings a day ; but yet these words will not bring the offense, for which the defendants are indicted, to be within the statute, because it is not the denial to work except for more wages than is allowed by the statute, but it is for a conspiracy to raise their wages, for which these defendants are indicted. It is true, it does not appear by the record that the wages demanded were excessive ; but that is not material, because it may be given in evidence. The Court. This indictment need not conclude contra formatn statuti, because it is for a conspiracy, which is an offense at common law. So the judgment was confirmed by the whole Court, quod capian- tur. In the volume from which the above case was copied is the fol- lowing: § 3.] ORIGINAL DOCTRINE. 19 "the 3d, 4tli, Stli, and 7th, Modern are but so, so; 8th, and 11th, Modern are execrable ; but 1st, 2d, 6th, 9th, 10th, and 12th, Modern deserve a place in the "PREFACE TO SECOND EDITION." " The Editor having been favored with, a sight of many marginal notes and corrections made soon after this Book was published, by a gentleman then at the Bar, for his own private use, and founded upon contemporary notes of the cases therein contained, and judg- ing from such marginal notes and corrections " that the book must have been exceedingly imperfect and erroneous, has done his best endeavours to supply the defects of the former wretched edition." There will naturally be doubt whether the editor in speaking of this "wretched edition" meant the first edition of the volume by himself or the original edition entitled " Modern cases in Law and Equity," printed in 1730, the name of the author or editor not appearing. But the inference would seem to be that the editor was refertring to the first edition by himself. But it might have- been that the secorid edition referred to was his first edition. It being possible that some lawyers might take that view, the case as found in the original edition is given below. It will be seen that there is a difference in the two reports, but that difference is simply in the arrangement of the points in the case. The real question of law decided is precisely the same in both reports. This volume having run through five editions by L each, it is not at all unreasonable to assume that the errors, if any, in former editions were discovered and eliminated. " The King Bifrja^ Journeymen Taylors of Cambridge," Modern Cases in Law and Equity, 10. [7th year Geo. i, printed in 1730.] "One Wise and several other Journeymen Taylors, of or in the town of Cambridge, were indicted for a conspiracy among themselves to raise their wages; and being found guilty, they now by their counsel, moved in arrest of-judgment upon several errors in the record (i.) First, it was objected that this fact being laid in the town of Cambridge, it did not appear by the record in what county Cam- bridge was, which it ought to do, because there are other towns of that name in England. It was insisted, that the omission of the county was a fatal error in the record, and not to be helped by naming the county in the certiorari to remove this indictment, because that writ is onl;^ an order of this Court. Neither shall it be intended that Cambridge is in the County of Cambridge, because this is a criminal case, and indictments are never allowed in prosecutions of that nature. 20 STRIKES AS CONSPIRACIES. [§ 3. better class of the old Reports ; especially the 2d, 6th, and 12th." There is no reason assigned for this impeachment of 8 Modern, and the cases in it con- (2.) This indictment ought to conclude Contra formam Statuti, for by a late statute Anno 7 Georgii journeymen taylors are pro- hibited to enter into any contract or agreement, for advancing their wages &c. These objections were thus answered. First, that the fact being laid in the town of Cambridge, it shall be intended, that the town is within the County of Cambridge, for which the authorities in the margin are in point. [5 Reg. 120 Long's Case Salk. 118.] Besides, the justices of peace having jurisdiction within the town of Cambridge, it need not be alleged in what county that town lies, because in order to suppose all inferior jurisdictions, this Court will intend their proceedings to be regular and good, if the contrary doth not appear. (2.) As to the omission in not concluding this indictment contra formain statuti, 'tis not material that it should be so concluded, because it was for a conspiracy, which is an offence at common law; 'tis true, this indictment sets forth, that the defendants refused to work under such rates, which were more than enjoined by the statute; for that is only 2 s. per dietn, but yet these words will not bring the oHense for which the defendants were indicted, to be within that statute, because 'tis not the denial to work for more wages than allowed by the statute, but 'tis for a Conspiracy to raise their wages, for which these defendants are indicted; 'tis true, it doth not appear by the record, that the wages demanded were excessive, but that is not material, because it may be given in evidence. A venire facias directed to the Sheriff of Cambridge to return one de vicineto Cambrigics this is good, for Cambridge being mentioned in several acts of parliament, this Court must take notice of such acts, and upon such a return will intend, that Cambridge is in the County of Cambridge. And as to the second objection, the Court was of the opinion, that this indictment need not conclude contra formam statuti, because it was for a Conspiracy, which is an offense at common law; 'tis true this indictment set forth that the defendants denied to work under such wages as they demanded; but thp' this might be more than directed by the statute; yet 'tis not for the denial, &c. but for the conspiracy they were indicted; and a Conspiracy of any kind is illegal, tho' the matter about which they conspired might have been lawful for them, or any of them to do; if they had not conspired to § 3.] ORIGINAL DOCTRINE. 21 taining important rules of law cannot be put down so easily. After a work passes through five editions it is fair to presume that all serious errors have been do it; and this appeared in the case of Tubwomeu against the Brewers of I^ondon. So the judgment was confirmed by the whole court. "The King against Alderman Sterling and Seventeen others," I Levinz, 125. Information against them, for that they with divers others of the Brewers of London did factiously and unlawfully assemble them- selves, and conspire to impoverish the Excisemen, and made orders that no small-beer called gallon-beer should be made for such or so long a time to be sold to the poor, uor no ale but of such a price, with intent to move the common people to pull down the Excise- House, and to impoverish and disable them from paying their rent (being then 118,000 1, per Ann.) to the King; .and on not guilty pleaded, they being found guilty on a trial at bar of assembling and consulting to impoverish the Excisemen, and not guilty of the resi- due. It was moved in arrest of judgment, 1st. That there wanted Vi and Armis in the information. But held by the Court it was well enough without it, the information being for plotting and contriving which may be without force. 2dly. That they found guilty only of the conspiring without any act done, for they are found not guilty of the making the orders, &c., and this is only against private men, and not punishable at the King's suit, but by suit by the parties, if they are endamaged thereby. 3dly. That the contriving to impoverish the Excise-men, is uncertain what is meant, and it may be by bringing actions against them for just debts. To the first of which objections it was answered by the King's counsel. That this conspiracy tends to the public, because it concerns the loss of the King's revenue. And as to the second objection, the information says, That it was factiously and unlawfully, and is so found by the jury, which well enough explains what kind of impoverishment is intended, and a conspiring to do an unlawful thing is punishable without any overt-act done, as 9 Co. Rep. Poulter's Case, Moor 788, and the same in the Lord Gray's case and Scrogg and Midwinter's case in the Star-Chamber 1636. And the whole Court gave their opinions. That judgment should be given for the King. And Hyde, Troysden and Kelyuge held, That the bare conspiracy in this case to diminish the King's revenue, without any act done, is finable. 27 Ass. 44. 43 Ass. 20., Wyndham said, That if it was no more than a conspiracy without act done, it was not punishable, but that there was more, viz. a confederacy 22 STRIKES AS CONSPIRACIES. [§ 3. discovered and corrected. While there is a difference in the report of the case of Journeymen Tailors of Cambridge, in the 5th edition of 8 Modern, and the and a coadunatioti [coaduiiition] by assembling themselves to this purpose, and he cited 45 E. 3., 19. And so all agreed that they should be fined, but not jointly, but separately according to their ability, with a falois contenementis; and thereupon they fined Sterling 1000 marks, and the others 300 marks each. This case under the title of The King v. Starling, i Siderfin, 174, is in French. The f oUovping report of it is given as it somewhat differs from that set out above in the wording. The two reports of the case will leave po doubt as to the meaning of the Court in declaring the law of the case. Mr. Attorney v. Starling, &c., Brewers of London, i Keble's Rep., 650, 655. Weston moved in arrest of judgment in information against them; I. Because it is factiously, unlawfully and seditiously assembling themselves, &c., not saying- Vi & armis, orriotose or routese. 2. The defendants were charged for conspiracy to deprive the King of his customs and excise, and to depauperate the fermors, [farmers] which is not material, the defendants being found not guilty of all overt acts alleged in pursuit of the conspiracy, and of hindering the King's revenue, and therefore it cannot be said they factiously, &c., meet together to depauperate the fermors. But per Curiam, the very consultation is an offense, as Poulters case, without any overt act. Mr. Attorney conceided Vi & armis not necessary in an information, especially being for conspiracy, which is an act of the will, and not for any personal force, and after verdict especially its good. 2. The very conspiracy to do a lawful act to the prejudice of a third person is enquirable and punishable in B. R. inter les Articles 27, Ass. Also by finding they did not conspire illicite prout per Informat. they do implicitly find their agreement to contribute money to take away the gallon trade, and that they made orders to brew only small beer for three months: also by the Solicitor, as in all the Informations for lessening the King's Revenue ; as in that against the Duke of Northumberland for conspiring with Sir J. D. to illegitimate the Lady Anne Dudly, because no process of oitlawry [outlawry] lyeth, it's sufficient for the King, that Mr. Attorney only prayeth debitum legis pracessum. 2. The not guilty quad omnem aliam materiam may be supplyed in the other acts alleged, as the endeavour to raise mutiny among the people to pull down the office of excise, and the first finding would be sufficient, were the rest contradictory to it. The Court agreed the Vi & armis not § 3.] ORIGINAL DOCTRINE. 23 original edition, known as " Modern Cases in Law and Equity," yet the difference is simply in the arrange- ment of the points of the case, there being very necessary, in that no breach of the peace is complained of, or if it were, as for the death of man, it were needless, by Hyde, especially this complaint being of a crafty wityness. 2. Also the very conspiracy to raise the price of pepper is punishable, or of any other merchandise. And by Twisden, if any of the particular facts, which are but evidence of the design charged, be found, it's sufficient to support the Information and the not finding the particulars (for which by Hyde, there was as great evidence as the general Charge) is not material. But by Windham, all the parti- culars of making orders and contributing money, are discharged, and not involved in the general finding the conspiracy, modo & forina : but whether this be a sufficient crime to meet and consult to depauperate the fermors, 655 pi. 35 (continued on page 655). Newdigate for the defendants observed, that the point of destroy- ing the fermors of the excise is not found, but only that they did factiously and seditiously assemble and conspire to depauperate the , fermors; bvit it doth not say in the excise, which being incertain, as Moor 302 pi. are not to be made good by any intendment, being penal as well as Indictment: Also conspiracies that are punishable without overt act, must be such as concern the public. Williams' Case, 5 Co., which doth not appear here in this general charge, as Freman's Case, i Cr. 579, but an injury to the persons by particular name. Also though the Information might have been good in such general terms, yet not when the particulars thereof are mentioned and found for the defendant, as Meers' Case, Hub. 173. Wild for the King, it's an inevitable consequence that the King must lose his rent where his fermors are depauperated; and although it may mit- igate the matter, that the particulars are not found, yet it remains a great offense, and of public concernment, it appearing by the Information that it was given to the. King by Parliament, and by him for 118,000 1. per Annum for three years settled on fermors: Also the Jury have found it seditiously done, which cannot be in cases of private concernment: Also in Oyer and Terminer de falsis Coadunationibus , is one article of enquiry. Also by Mr. Attorney, as by 21 H. 7, 39, to assemble his friends for his defense against H. that lay in wait in passage to the market, was held unlawful, although to a lawful end. Also the conspiracy, although an act ad intra, yet the communication thereof is an overt act, 27 Ass. 44, Briefe P, 926; Moor 786, Gray's Case, and 756, Stafford's Case, and punishable, although nothing ensue thereon, and the conspiracy is the crime, and thence the visne shall come, as Smith against Thrasher, 2C Jac 24 STRIKES AS CONSPIRACIES. [§ 3. little variance in the language, and not a particle of difference in the proposition of law laid down. In that case the question whether a conspiracy to do a B. R., the other acts are but particular instances of it. Also that such conspiracy must appear by some prosecution, that is to be in- tended evidentially to the jury, not otherwise: And in Midwinter against Scrogg, in the Star Chamber 1636, in which Sir Edward Tourner was conusee [cognizee], the butchers of London were fined 3000 1. for glutting the markets, to the impoverishing of the federal county fermors, because it was of public concernment and conse- quence. ADJORNATUR. "Anonymous, 12 Modern 248 (1698). Leave was granted to file an information against several plate-button makers, for combining by covenants, not to sell under a set rate. Holt, Chief Justice : It is fit that all confederacies, by those of trade to raise their rates, should be suppressed:" LES Poni,TER's Case, 9 Cooke's Rep. 55. Mch. 8, Jacob. Regis le case inter Stone pi. et Rafe Waters, Henrie Bate, J. Woodbridge et mults auters poulters de Londies defendants, pur combination, confederacie, et aliance inter eur fauxment et malicionment a charger le pi. (que ad espouse la feme dun Poulter in Gracious street) one robberie del dit Rafe Water, suppose deste fait in le Countie d' Essex, et a procurer luy deste indite, arraigne, ajudge, a pende, et in execution de cest faux confederacie ils procuront divers warrants des Justices de peace, per force de que Stone fuit apprehend, exam- ine et lye d'appearer al assises in Essex, a qui asisises les defendants appieront et preferre. Un bill de indictments de robbery vers le dit plaintife. A les Justices d'assise oyant le evidence al grand Inquest overtinent in Court, ils perceivont grand malice in les defendants in le prosecution del cause, et sur tout le matter, appiert, que le plain- tife tout le jour in que Waters fuit rob fuit in Londres, issint q ne fuit possible que il fist le robbery: et sur cole grannd inquest troue ignoramus. Et fuit move et fortment urge per le councell des defendants, que admittant cest combination, confederacie, & alliance int lux a inditer le pi. destre faux et malicious, q encore nul fuit gist p ceo in ce court on ailors, p divers causes: i. p ceo q nul bfe de conspiracie pur le ptie grieve, on indictment , on auter suit pur le Roy gist mes on le partie grieve est indict et legitimo modo acqui- etatuSy come les livres sout F. N. B. 114, b; 6 Edw. 3, 41; 24 Edw. 3, 34; 43 Ed., 3 tit. Conspir' 11; 27 Ass. pi. 59; 19 H. 6, 28; 21 H. 6, 26; 9 Edw. 4, 12, &c. 2. Thescun que conust luy mesme Culp poet, a shadower lur offences, et a terrifie ou discorage ceux que vioUont prosecuter le cause vers eux surmise ou confederacie, combination, ou alliance inter eux & ptyels meanes notorious ofEendors eschaper § 3.] ORIGINAL DOCTRINE. 25 thing perfectly lawful in and of itself to do if done by persons singly, was fairly presente,d for the de- cision of the court, and it was held, notwithstanding punislimeiit ou al meyns Justice ferra in dannger deste pervert, et grannd offences deste smother, et pur ceo fuit dit per eux, que ne fuit ascuv president ou garrant in ley a maiuteiner tiel bill come ceo est. Mes sur bon consideration fuit resolue, que le bill fuit maintainable. Et in cest case divers points fuerout resolue. 1. Que al common ley (que non solement fauor le vie mes auxy le libertie dun home, et freedom del imprisoijit) quant home fuit imprison, by morte hors, &c., ou prima facie at la ley it ne fuit bailable. A ne detineatur din in prisona, s'trangs al venue des Justices in eire, coe appiert by le statute de W. I. caps. II, le prisoner in tiel case poet auerbr de Odio & atia direct al visconi, (Sfc, assuniptis secuni custodibus plitoru coronae in plena coniit per sacramt proboru can it be said that the act to be done, if done by a single individual, was lawful, and that was the Ster- ling case. Certainly a single brewer could lawfully quit brewing a certain kind of b^er and ale if he chose to, or he could quit the business altogether. But when all the brewers of London entered into a conspiracy to quit brewing a certain kind of beer it was altogether different. It is evident that men would not so combine without a purpose in view, and that purpose to operate injuriously upon certain individuals. These cases show, if they show anything, that it was the conspiracy that was punished; indeed there was nothing else to punish. These cases form the basis for the decision in the case of the Journey- men Tailors of Cambridge. It decided that a mere conspiracy was indictable, and the decision was based on the Sterling case. This case, therefore, is as well sustained by authority as any that was ever decided. It is not in reality as strong a case as the Tubwomen case, for at the time it was decided workmen had not the right to quit work singly if they had contracted to work for a specified time, and quit before the expiration of their term of service. It was a long time after that case was decided that the courts relaxed the common law rule so as to allow a workman to recover on the § 4, 5.] ORIGINAL DOCTRINE. 103 quantum 7neruit. But as the case was decided on the rule laid down in the Tubwomen case, it was not inappropriate for the court to say "yet it is not for the refusing to work, but for conspiring that they are indicted, and a conspiracy of any kind is illegal although the matter about which they conspire might have been lawful for them, or any of them to do, if they had not conspired to do it." This certainly has been the view of all the great writers on criminal law, both English and American, without a single exception. We, therefore, conclude this subject with the state- ment, that the rule as laid down in the Journeymen Tailors' case is the. common law rule, and that it is the law of such States of our Union as have not abrogated it by statute. Further, in the American cases where it has been animadverted against, it was not in issue, but was dragged in as a side issue, to prejudice the jury against anything English. These cases, it must be borne in mind, were tried soon after the American revolution, or the war of 1812, when prejudice against all that was English ran high. § 5. Early English Statutes. Taking into consideration the history of the working classes, it will not be astonishing that early statutes regulating labor were harsh towards the workingman. After Rome had lost her power to enslave the world, a form of slavery was introduced in the feudal system. This was purely military, devised to facilitate con- quest in war. Without pretending to be critically precise on the subject, it will suffice to say its theory was that the King, or commander-in-chief of an army embarking in a career of conquest, was not only lord and master over his army, but of the soil of conquered countries. As an incentive to and reward for fidelity 104 STRIKES AS CONSPIRACIES. [§ 5. and distinguished military services, the King or com- mander-in-chief parceled out all the land among his generals reserving to himself certain rights and privileges, and revenues to be derived therefrom, who in turn divided their seigniories among their imme- diate subordinates. This process of subinfeudation was continued until the lowest grade of officer was reached. Each subordinate paid to his immediate superior certain rents, called tithes, and rendered certain services. But chief above all was the oath of fealty that each took, by which they bound themselves to serve their superiors in war whenever called upon. They thus being bound to each other by a mutual interest, became invincible and overrun all Europe and firmly established the system. It was forced on the Britains, but resistance to it was long and stub- born. Assassination was resorted to by the feudalists to remove the most obstinate, and their estates sub- jected to feudal absorption. This system entailed many inconveniences and hardships, among them the inalienability of realty, and inability of the subordi- nate to sevei^ his relation to his lord or quit or abandon his manor without the lord's consent. Grrowing out of the feudal system as some authors think, or as others think existing before the feudal system, was villeinage, a condition of slavery. The villein was a character too insignificant and unimpor- tant under a purely military system to be considered in any other light than as a "hewer of wood and drawer of water," fit only for kicks and cuffs and the lowest menial services. These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land ; or else they were in gross, or at large, that is annexed to the person of the lord and § 5.] ORIGINAL DOCTRINE. 105 transferable by deed from one to another. They could not leave their lord without his permission, but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families ; but it was at the mere will of the lord, who might dispossess them whenever he pleased ; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other of the meanest offices ; and their services were not only base, but uncertain both as to their time and quantity. A villein, in short, was in much the same state with us as Lord Molesworth describes to be that of the boors in Denmark, and which Steinehook attributes also to the traals or slaves in Sweden ; which confirms the probability of their being in some degree monu- ments of the Danish tyrrany. A villein could acquire no property either in lands or goods ; but if he pur- chased either, the lord might enter upon them, oust the villein, seize them to his own use, unless he contrived to dispose of them again before the lord had seized them ; for the lord had then lost his opportu- nity."^ The same conditions attended them as to marriage with a free man or free woman, and the same debased relations attended their children as always has that of other forms of slavery. Like any other slave, a villein could be manumitted. This class, then, were the real laborers in the early history of England, and was only in keeping with the rest of the world. This feudal system dominated the world for cen- turies. The guns of l^apoleon exploding under the ancient thrones of the old world expelled it from con- 1 2 Blackstone, 93. 106 STRIKES AS CONSPIRACIES. [§ 5. tinental Europe, while in England, the law ever battling for right" and justice, has practically over- thrown it there. Under English law right and justice, with no other champion than reason, and the love of the English people for fair play, will finally prevail. This is the great glory of the English law. Keeping in mind this history, we need not be sur- prised, not only at the ancient but also the compara- tively modern labor laws of England which kept the laboring man in a condition but little removed from that of slavery. But there will be noted in them a steady improvement. The English are never in a hurry. They are great. sticklers for old established systems and customs. The common law is built upon that. But they do make improvements in their laws when thoroughly convinced that justice requires it. Practically it might be said labor laws existed in England from time immemorial. As these ancient statutes are now no longer in forcei, there is no occasion to go to the trouble to fix the exact time of their introduction. They were very numerous. In Jacob's Digest many pages are occupied by mere reference to them. Only some of the most prominent features of them will be noticed, more for the pur- pose of reminding modern fault-finders that the present condition of the laboring man is not as bad as it has been or might be. The statutes of 23 Edw., 3, and 25 Edw., 3, St. 1, passed in 1349 and 1350 respectively, provided " that every man and woman of what condition he be, free or bond, able in body, and within the age of three- score years (not having independent means of support) if he in convenient service (his estate considered) be required to serve, he shall be bounden to serve him which so shall him require." They were to serve § 5.] ORIGINAL DOCTRINE. 107 under pain of imprisonment, and receive no more than the customary wages. The act of 1350 fixed the wages of the most important mechanics. The object of the statute was to stop the demand for exorbitant wages, growing out of the dearth of labor caused by the great plagues. Again, "If any of said, servants, laborers, or artificers, do flee from one county to another because of this ordinance, that the sheriffs of such county where such fugitive persons shall be found shall do them to be taken at the commandment of the justices of the counties from whence they shall flee, and bring them to the chief goal of the same county, there to abide till the next sessions of the same justices. "And that none of them go out of the town where he dwelleth in the winter to serve the summer, if he may serve in the same town, taking as before is said." The act of 3 Henry 6, c. 1, made it a felony to evade or neutralize the provision of the labor laws. The statutes 2 and 3, Bd\y. 6, c. 15, forbade all conspiracies and agreements among artificers, work- men, or laborers not to work except at certain prices under the penalty of the pillory and the loss of an ear on a third conviction and to be considered "infamous." The act of 5 Eliz. c. 4, compelled all persons able to work as laborers or artificers, and not having inde- pendent means, to work upon demand. It fixed the hour's of work, and gave the justices power to fix the rate of wages. It prohibited any one from exercising any trade, craft or occupation then in use in England or Wales without first serving an apprenticeship of seven years. This statute was passed in 1562, and was not repealed until 1875. The act of 7 Geo. 1, St. 1; c. 13, punished by imprisonment with or without hard labor, agreements 108 STRIKES AS CONSPIRACIES. ' [§ 5. between journeymen tailors " for advancing their wages or for lessening their usual hours of work." The hours for labor were from 6 A. M. to 8 P. M. with an hour for dinner, and " one penny halfpenny a day for breakfast." It also fixed the rate of wages. Like staiutes were extended to other trades and manufactures. By the act of 36 Geo. 3, c. Ill, twelve hours were fixed for a day's work with an hour for dinner, and provisions made for the suppression of combinations among workmen. The act of 39 Greo. 3, c. 81, was passed in the year 1799, and provided for the suppression of all combi- nations by workmen for raising their wages. It was repealed in 1800 by 40 Geo. 3, c, 60. This last statute provided for reference to arbitration of disputes between masters and employes. It nullified all con- tracts between journeymen, manufacturers or other persons for an advance of wages, or for shortening hours of work, except the contracts of the master with any journeyman as to the wages of the journeyman. It also provided " for preventing or hindering any person from employing whomsoever he thinks proper, or for controlling or any way affecting any person carrying on any manufacture, trade or business, in the conduct or management thereof." Any journey- men violating this provision was liable to imprisonment without hard labor for any period not exceeding three months, or two months with hard labor. It also provided the same penalty for any person who " enters into any combination to obtain an advance of wages, or to lessen or alter the hours of work, or for any other purpose contrary to .the act, or who, by giving money, or by persuasion, or solicitation, or ■intimidation, or any other means, willfully and maliciously endeavors to prevent any unemployed § 5.] ORIGINAL DOCTRINE. 109 person from taking service, or wlio, for the purpose of obtaining an advance of wages, or for any other purpose contrary to tlie provisions of the act, will- fully and maliciously induces, or tries to induce, any workman to leave his work ; or who hinders any employer from employing any person as he thinks proper, or who being hired, refuses without any just or reasonable cause to work with any other journey- men or workmen employed or hired to work." Also the same penalty for attending meetings, or collecting money for advancing such illegal purposes, or to assist or maintain men on strike. The year 1824 may be fixed as the dividing line between the old and modern law on this subject. In that year the act of 5 Greo. 4, c. 95, was passed. The following year, 1825, 6 Geo. 4, c 129, was passed, which, with some modifications, is now the law in England. Those statutes will be considered in the next chapter. CHAPTER II. STRIKES AS (lONSPIRACIBS — MODERN DOCTRINE. § 6. Acts of 5 Geo. 4, c. 95, 6 Geo. 4, c. 129. 7. Intimidation and coercion. 8. The right to strike. § 6. Acts 5 Ueo. 4, c. 95, 6 Geo. 4, c. 129. The act of 5 Greo. 4, c. 95, inter alia provided " That journeymen, workmen, or other persons, who shall enter into combination to obtain an advance, or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to induce another to depart from his service before the end of the time or term for which he is hired, or, not being hired, to refuse to enter into work or employment, or to regulate the mode of carrying on any manufacture, trade, or busi- ness; or the management thereof, shall not thereafter be subject or liable to any indictment or prosecution for conspiracy, or to any other criminal information or punishment whatever, under the common or the statute law." (§ 2.) "(§ 5.) By violence to person or property, by threats or by intimidation, wilfully or maliciously to force another to depart from his hiring or work before the time for which he is hired, or to return his work before finished." " Wilfully or maliciously to use or employ violence to the person or property, threats or intimidation § 6.] MODERN DOCTRINE. Ill towards another on account of his not complying with trade Union rules. " By violence to the person or property, by threats, or by intimidation, wilfully and maliciously to force any master or mistress manufacturer, his or their foreman or agent, to make any alteration in their mode of carrying on their business. " Conspiring for any of the purposes before men- tioned." This act was in force for but one year, when it was repealed by the act of 6 George 4, c. 129 . Section 3, of the last named act, under which many reported cases arose, is as follows : " If any person by violence to person or property, or by threats or intimidation, or by molesting, or in any way obstructing another, — "1. Shall force, or endeavor to force, any journey- men, manufacturer, workmen, or other person, hired, or employed in any manufacture, trade or business to depart from his Mring, employment or work, or to return his work before it is finished, or prevent or endeavor to prevent any journeymen, manufacturer, workmen, or other person not being hired or employed, from hiring himself to or from accepting work or employment from any person. " 2. Or shall use such means for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any fund, or to pay any fine or penalty on account of his belonging to any particular club or association, or of his not having contributed or having refused to contribute to any common fund or to pay any fine or penalty, or on account of his not having complied, or of his refusing to comply with any rules, orders, resolutions or regulations, made to obtain an advance or to reduce 112 STRIKES AS CONSPIRACIES. [§ 6. the rate of wages, or to lessen the hours of working or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade or business, or the managenlent thereof. '.'3. Or to force or endeavor to force any manu- facturer or person carrying on any trade or business, to make any alteration in his mode of regulating, managing, conducting, or carrying on such manufac- ture, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen, or servants, such person bhall be liable, with any person aiding, abetting, or assist- ing therein, to three months' imprisonment with or without hard labor."^ Section 4 provides that the act shall not extend to subject any persons to punishment who meet together for the sole purpose of consulting upon and determin- ing the rate o^f wages or prices which the persons present at such meetings shall demand for their work, or the hours for which they shall work ; or who enter into agreement among themselves for the purpose of fixing the wages or prices which the parties entering into such agreement shall demand for their work, or the hours during which they will work. Section 5, relates to meetings among masters. The unlawful purposes mentioned in this statute, were to be accomplished by violence, threats or intimidation, molestation or obstruction. 1 Arnold's Employers and Workmen, 41, 42. No guarantee can be given tliat this is a verbatim copy of the statute, but it appears to be the nearest to it of any that has been found. In several of the cases decided under it, what purports to be exact copies are given, and also in Stephen's "History of the Criminal Law of England," 3 Vol. 214, 215, but they all differ in phraseology in some places, yet they are all sufficiently accurate for our purpose iu this country. § 6, 7.] MODERN DOCTRINE. 113 The cases arising under these statutes will be given in the following sections of this chapter. § 7. Intimidation and Coercion. 1. Definition. Black, in his law dictionary, defines coercion to be " compulsion ; force; duress. It may be either actual, (direct or positive,) where physical force is put upon a man to compel him to do an act against his will, or implied, (legal or constructive,) where the relation of the parties is such that one is under subjection to the other, and is thereby con- strained to do what his own free will would refuse." His dictionary does not have the word intimidation. Bouvier defines coercion as " constraint ; compulsion; force." "2. It is positive or presumed. 1. Positive or direct coercion takes place when a man is by physical force compelled to do an act contrary to his will ; for example when a man falls into the hands of the enemy of his country, and they compel him by a just fear of death, to fight against it. " 3. — 2. It is presumed where a person is legally under subjection to another, and is induced, in conse- quence of such subjection, to do an act contrary to his will. A married woman, for . example, is legally under the subjection of her husband, and if in his company she commit a crime or ofi'ense, not malum in se (except the offense of keeping a bawdy-house, in which case she is considered by the policy of the law as a principal), she is presumed to act under this coercion. " 4. As will is necessary to the commission of a crime, or the making of a contract, a person coerced into either has no will on the subject, and is not 114 STRIKES AS CONSPIRACIES. [§ 7. responsible." Neither does Bouvier have the word intimidation. Webster defines intimidation as the " act of making timid or fearful ; the state of being abashed." So far as this statute is concerned intimidation and coercion are syndnymous. The party intimidated or coerged must be forced to do an act against his will, or there must be an attempt to force him to do so. Intimidation under the statute may be by threats. 2. Reg. T. Hewitt and others ^ was the first case. The defendants being members of a society known as "The Philanthropic Society of Coopers," entered into a conspiracy to compel the payment of a fine assessed against a member for violating a rule of the society. The offense consisted in working four days at a steam mill, where steam machinery was extensively used in making casks. The society objected to any member working where steam machinery was used. The fine was not paid, and in consequence the other men struck and refused to return while Evans, the recalcitrant member, was employed. As a consequence Evans was discharged: Lord Campbell, before whom the trial was had, said : " It appears to me that this is one of the most important eases ever tried before a British jury, and upon its result must depend very much the prosperity of the manufacturers and the good of the operatives. But let it be understood that, whatever may be the result of this case, such societies as the present are not in any way illegal. The Philanthropic Society is according to its rules, a most lawful and a most beneficial institution; the object of it is to take care of its members when sick, and to provide a decent funeral for them when they are called away; but 1 Reg. V. Hewitt et al, 5 Cox. C. C. 162. § v.] MODERN DOCTRINE. 115 it cannot be permitted that, under the guise of such laudable objects, the members shall enter into a combination or conspiracy to injure others. By law every man's labor is his property, and he may make what bargain he pleases for his employ- ment; not only so — masters or men may associate together; but they must not, by their association, violate the law ; they must not injure their neighbor ; they must not do that which may prejudice another man. The men may take care not to enter into engagements of which they do not approve, but they must not prevent another from doing so. If this were permitted, not only would the manufacturers of the land be injured, but it would lead to the most melancholy consequences to the working classes. No doubt the defendants may have been under the delu- sion that they were doing what they were entitled to do, but they cannot be permitted to injure their neighbors in carrying out that which they may con- sider to be a protection to themselves. It has been stated by the witnesses, that a fine follows a man all over London and all over England. This shows the power of the society. Let them have their rules, and let them act under them ; but if they are to fine for some nondescript offense, and that fine is to follow a man all over England — if the man is alwayS to go about with that brand upon him, it becomes the more important that judges and juries shall see that such societies do not infringe the law. The payment to the men of 9 s. each for their loss of time was taken from the funds of the society, and a clear perversion of its objects. Verdict — guilty." " This is a case in which it is right to pass judgment at once. The offense is a most serious one, and, if allowed to pass with impunity, would bring ruin upon 116 STRIKES AS CONSPIRACIES. [§ 1. the trade and manufaetures of this country, and would involve in its ruin the workmen, upon whom the prosperity of this country mainly depends. It clearly appears that this charitable institution depart- ing from its laudable purpose, was applied to, to pre- vent one of its members from exercising his free will and enjoying his industry in a way which he thought most to his advantage. It is clear that the president, secretary and committees resolved that Evans should be punished for having gone to work at the steam mills ; 1 they unlawfully imposed a fine on him for so doing, and they proceeded by unlawful means to induce him to pay that fine. This is an offense which the law must punish, and I hope it will be known to all these societies, that while, they will be protected by the laW when acting lawfully, the law will punish them when they interfere with the free will and the exercise of the industry of their members. It is an offense for which they must be severely punished." In the opinion of Lord Campbell, the assessment and attempt to enforce payment of the fine mentioned was intimidation within the meaning of the statute. 3. Obstruction or Molestation, — forcing master to change his mode of carrying on business. Eeg. v. Buf- fleld.^ In an indictment of twenty counts, which of course will not be given here, the defendants were indicted under the above act of 6 Greorge 4, c. 129, § 3. This is a very lengthy case and only a brief synopsis of it can be given. Mr. Perry was a manufacturer of tin plates and japan work in Wolverhampton, England, and employed a large number of workmen. Some of 1 Working people have always been opposed to the introduction of machinery, because they think it will dispense with a large number of employes. 2 Reg. V. Dufiield ei al, 5 Cox C. C, 404. § v.] MODERN DOCTRINE. 117 the work was prepared for the workmen by macMnery, which necessarily decreased somewhat their compen- sation. However, all of his employes were satisfied both with their pay and treatment. Mr. Perry and his men had been in the habit of regulating the question of wages between themselves without refer- ence to what other manufacturers paid. The tin and japan works were so intimately connected that if one stopped the other must stop also. If the men in one branch of the business were thrown out of employ- ment, those in the other would be obliged to stop work. There were four or five other similar establish- ments in the town, but they did niot have machinery and as a consequence paid their employes slightly higher wages than did Mr. Perry. To April, 1850, not a word of complaint had been made by Perry's employes, and there was full employment for all of them. While in this condition of prosperity and con- tentment, Mr. Perry received a letter from London, the seal of which contained the inscription " National Association of United Trades, for the Employment of Labor," which read as follows : " National Association of United Trades, 255, Tottenham Court Eoad, April 2, 1850. " Sir : I am requested by the executive committee of the above association, to inform you that a deputation of their body, in conjunction with certain representa- tives of the tin plate workers of Wolverhampton, purpose waiting upon you on Monday, the 8th April, instant, to take your opinion on the book of prices which has been left for your examination, and which the tin-plate workers are desirous should be estab- lished as the recognized price-list for the town. I am further instructed to express, on the part of this com- mittee, its sincere desire that by the proposed inter- view an arrangement may be come to, which may in 118 STRIKES AS CONSPIRACIES. [§ V. future contribute to the harmony and good feeling of both employers and workmen in your important and lucrative branch of manufacture. Mr. Frederick Green and Mr. Thomas Winter are the persons appointed by this committee to act in a mediatorial capacity on behalf of the tin-plate workers, and they venture to hope that you will receive them purely as mediators, and not as presuming to visit you in an offensive spirit of dictation. I have the honor to remain, sir, your most obedient, humble servant, Wm. Peel, Secretary." Mr. Perry having large orders to fill, and his exper- ience teaching him that labor disputes between master and men never took place except when masters had large and pressing orders on hand, set about making himself secure by getting written contracts from his employes. In the contracts the wages were fixed, and the men bound themselves to work for certain periods; Perry binding himself to keep them supplied with work at the wages and for the time agreed upon under any and all circumstances. The men were to give six months notice of intention to quit, while Perry was to give only one month's notice of intention to discharge. Winter, Green and Peel waited upon Perry at his counting house and wished to know why he had dis- missed a certain man. Perry declined to give any inforijiatioi], on that subject, whereupon they said they had come simply to settle the disputes between him and his men. Perry replied that he was unconscious of any disputes existing between them. A book of prices to be paid for labo;r was submitted to Perry for his approval, but desiring to avoid an open rupture he said he would take it under advisement. After several interviews, he said he would have nothing to do with it. From that time on he was subjected to annoyance and finally had to institute proceedings against the § 7.] MODERN DOCTRINE. 119 defendants. Placards of an injurious character had been issued. Three of the defendants, Green, Row- lands and Peel attended a meeting of the tin-plate workers, and were made members of a secret local committee at Wolverhampton, at a salary of 4s. 6d. a day and 6d. drink riioney. From that time there was commotion among Perry's men. The three defendants lay in wait and met Perry's employes and enticed them away. His best men who had received liberal wages and had entered into written contracts disap- peared from their work and from Wolverhampton. From eighty-five employes the numbers were reduced to twenty-two, the latter being the inferior workmen. The object in taking away the best men was to embarrass Perry as much as possible. These men were sent to difi'erent parts of the Kingdom and sup- ported by small remittances. After a time they returned to Perry penniless, miserable and starving. Perry, being pressed with orders, went to France and Crermany for workmen and hired them at any cost. Gaunt, Dufiield and Woodworth, with the funds furnished them, got Perry's employes drunk and while in that condition sent them away. In order to secure workmen. Perry caused the following advertisement to be inserted in the papers : "To Journeymen Tin-plate Workers. Wanted, twenty good workmen in the above line ; constant employment will be given at the prices paid during the last eight years. Apply to Mr. Edward Perry, Jedds-work, Paul Street. 'N. B. — Liberal advances will be made to steady workmen, Wolverhampton, July 24, 1850." Immediately after this advertisement appeared the following placard was posted about Wolverhampton and Birmingham : — 120 STRIKES AS CONSPIRACIES. [§ 7. " Liberal advances to steady workmen." "ISTotice. — Mr. Edward Perry having refused to give the list price agreed upon by the trade society to be paid to the journeymen tin-plate workers in "Wolverhampton, has advertised for twenty good work- men at constant employment, at the prices paid the last eight years. The journeymen are informed that the prices Mr. B. Perry pays are from 25 to 30 per cent undtr the prices paid at other manufacturers in this town, and from 10 to 15 per cent under the list agreed to by the men, which is the average between the prices paid by him and by Mr. Richard Perry, Mr. Walton and Messrs. Shoolbred & Co. On behalf of the committee, Henry Rowlands, Secretary, Wolverhampton, July 24, 1850." New employes were enticed away by the defend- ants and others who were posted at various places about the manufactory. New men applied for employment which was promised them, but they never returned, evidently having been persuaded not to. The effect of the employes quitting work and Perry being unable to get others was to prevent him from filling his orders. Not only were men persuaded to abandon their employment, but compelled to do so by threats of violence. One workman was told that he might get every bone in his skin broken if he did not leave town. Another was told, " you had better go or else it will be worse for you." It will be seen that the above facts cover about all the points made criminal in the statute of 6 Greo. 4, c. 129, § 3. In the charge to the jury, the court laid down the following propositions : " 1. It is a clearly established rule of law that workmen have a right while they are perfectly free from engagement, and have the option of entering into employment or not, to agree among themselves § 7.] MODERN DOCTRINE. 121 that they will not go into any employment unless they can get a certain rate of wages, and each man for himself may say, 'I will not go into any employ unless I can get a certain rate of wages ;' and all of them may say, 'we will agree with one another, that in our trade, as able-bodied workmen, we will not take employ unless the employers agree to give a certain rate of wages.' " 2. Workmen have no right to combine together to persuade men already hired by and in the employ of other masters to leave that employment, for the purpose of compelling those masters to raise their wages. " 3. A conspiracy to obstru«t a manufacturer in carrying on his business, by inducing or persuading workmen who had been hired by him, to leave his service, in order to force him to raise his rate of wages, or to make an alteration in the mode of conducting and carrying on his trade, is an indictable ofifense ; and an agreement to induce and persuade workmen under contracts of servitude for a time certain, to absent themselves from such service, is an indictable offense, although no threats or intimidation be proved, or any ulterior object averred. " 4. Workmen who agree that none of those who make the agreement will go into employ unless for a certain rate of wages, have no right to agree to molest, or intimidate, or annoy other workmen in the same line of business, who refuse to enter into the agree- ment, and who choose to work for employers at a lower rate of wages; and, such an agreement to molest or intimidate is an indictable conspiracy, as well in workmen willing to be hired and employed, as to those already hired and employed. "5. The essence of the offense is the combination to carry out an unlawful purpose, and the unlawful i22 STRIKES AS CONSPIRACIES. [§ 7. combination and conspiracy is inferred from tiie conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adapted to effectuate. "6. Conspiring to take away workmen is such obstruction and molestation as will support a count for molesting and obstructing." On the subject of molestation the court said, " if a manufacturer has a manufactory, and his capital em- barked in it for the purpose of producing articles in that manufactory, if persons conspire together to take away all his workmen, that would necessarily be an obstruction to him, that would necessarily be a molest- ing of him in his manufactory." ■ On the subject of conspiracy he said, " I do not enlarge with you at all on the rule of law in relation to the offense of conspiracy. It is most obvious in a Word that if persons, intending to break the law are compelled to act single handed, those on the side of the honest part of the community can very well oppose them, and for the most part keep them under, but if those who are determined to break the law combine and co-operate together for that illegal pur- pose, they are a much more formidable enemy, and the law has said that combination for an illegal purpose is in itself an indictable offense." ■As to other workmen he said, "but with respect to their fellow-workmen they have no right at all to agree to molest, or intimidate, or annoy other work- men in the same line of business, who refuse to enter into the agreement, and who choose to go and work for the employers at a lower rate of wages than that which the parties agree to rely on." * * * "It is § 7.] , MODERN DOOTRINE. 123 one thing to persuade and induce by giving money and giving drink and so on, -which is the course that with respect to a great many of the workmen was pursued ; that is one thing, and it is a very different thing from threatening a man either with personal injury, or with the loss of comfort in any way, if he chooses to sell and hire himself to another employer. That sort of offense, intended by this class of counts, is very much exemplified by Orchard's evidence. There is no doubt that, if you believe any part of his evidence with respect to the threats and believe that DufBeld there was acting in concert with Woodworth and Graunt, or any other person, it would be your duty to say one and all are guilty of this second class, namely, of conspiring together to endeavor by unlawfully molesting, or intimidating, or using threats to the workmen to induce them to leave their employ. That part of the law is intended for the protection of the workmen. Let those loithout engagements agree to any terms they please, but they have no right to interfere with other workmen who do not come into the agreement, and who are, of course, at liberty to go to any employers on any terms they choose." " 4. Reg. Y. Rowlands et al} This case grew out of the same transactions as that of Reg. v. DufBeld, and the two cases are substantially the same. Mr. Stephens^ states that Reg. v. Rowlands was the first case tried under the act of 6 Geo. 4, c, 129, § 3, but in this he was in error. According to the dates given in the reports Reg. v. Dufiield was tried July 28, 1851, and Reg. v. Rowlands the next day July 29th. Both cases were tried before Judge Brie, and it is difficult tp see 1 Reg. V. Rowlands el al, 5 Cox. C. C. 436, 466. Stephen's Hist. Crim. Law of England 217. 124 STRIKES AS CONSPIRAOIBS. [§ 7. how such lengthy cases could, have been tried in a day. Be that as it may, the counsel in Reg. v. Rowlands refer to Reg. v. Duffield as having been tried. Reg. v. Rowlands went up to the court in banc, and the rulings of the trial court were sustained. Therefore, the law as laid down in these cases may be considered authorative expositions of the act of 6 Greo. 4, c. 129, § 3. The charge in Reg. v. Rowlands was substantially the same as in Reg. v. DuflSeld. In the former after making substantially the same remarks about the right of workmen to combine for their mutual benefit, the court said, " but the remark I would make on the other side is that the esercise of free will and thorough freedom of action, within the limits of the law, is also secured equally to the masters. The intention of the law is at present, to allow either of them to follow the dictates of their own will, with respect to their own actions and their own property, and either, I believe, has a right to study to promote his own advantage, or to combine with others to promote their mutual advantage." * * * "Taking it clearly to be a combination to force the assent to certain wages for the Workmen. If it stood merely there, it might be doubtful, in point of law, how far such a combination was lawful ; but if they combine to bring about that purpose by any unlawful means, unquestionably the indictment would be sustained. I think the three classes in respect of which the law is perfectly clear, are 1st. — If the purpose of the combination was to be effected by intimidation. There is a statute that secures those rights to the laborers, but prohibits any intimidation to the other laborers. Laborers are to have freedom of action, and those who choose to work for a lower rate of wages are to have their rights secured to them, and any combination of men to pre- § 7.] MODEllN DOCTRINE. 125 vent them from working for the wages that they should choose, by any intimidation or threat, is an illegal act." * * * " There is another class of counts very much to the same purpose. You will have to consider whether there is upon the evidence proof, to your satisfaction, that the defendants com- bined for the purpose of forcing this assent of Messrs. Perry, and intended to bring about that assent by intimidation to Mr. Perry. These counts allege that he was molested or obstructed. If they intended to create alarm in the minds of Messrs. Perry and so force their assent to any alteration in the mode of carrying on their business, they would clearly in my opinion have violated the law, and be guilty on those counts. There is, also, another set of counts, whereby the defendants ar,e charged to have conspired together for the purpose of inducing workmen to leave the employment of Messrs. Perry, contrary to their con- tracts. The charge is of conspiring to induce work- men to leave the employ of Messrs. Perry, by reason of their being made drunk, and, by contrivances, being carried off into concealment ; and I apprehend, if you are of opinion that those counts are sustained by the evidence, it will be your duty to find the defendants against whom that is made out, guilty. In respect of those three classes of the counts, I do not believe that there is any doubt in point of law that the. crime of illegal conspiracy would have been committed by the acts alleged in them. But, supposing all or any of the defendants are acquitted of all those classes of counts, and you should still be of opinion that the combination was for the purpose of obstructing Messrs. Perry in carrying out their business, and so to force them to consent to this book of prices, and in pursuance of that concert, they persuaded the free 126 STRIKES AS CONSPIRACIES. [§ 7. men and gave money to the free men to leave the employ of Messrs. Perry, the purpose being to obstruct him in his manufacture, and to injure him in his business, and so to force his consent. I am of opinion that that also would be a violation in point of law." On the subject of intimidation, he said, " I think, with respect to any intimidation to Mr. Perry, there does not seem to be anything like a direct threat of personal violence, or anything like a direct threat of actual violence to his property; but if a powerful body intimate that his lawful freedom of action will be interfered with unless he consents to certain terms, it will be for you to consider whether he might not be reasonably said to be intimidated if such matters occurred to him." * * * " If a man says that an event will happen, and it does afterwards - happen, it is for the jury to consider whether the man who says it may happen, did not know the way to bring that event about, and whether, if it did after- wards happen, he had not a concern in bringing it about. With regard to the letter of the 2d of April, it used the word ' mediator,' and said the parties were to call in the perfect hope that they were to be taken ' purely as mediators, and not as presuming to visit you in an offensive spirit of dictation.' But then the effect, on a man's mind, of the expression, saying ' we do not come in an offensive spirit of dictation,' after notice of the power of the body, and what they could do, was certain to call up in the mind of a man, the feeling that these were persons who had the power, and might exercise it. When the book of prices was pressed on Mr. Perry, he said he would consider it, and did not give a direct answer as to its adoption ; and if a man does not venture to speak his mind, what is the reason why he does not? It is because he § v.] MODERN DOCTRINE. 127 is apprehensive some evil consequence will arise and he is in fear from that evil consequence." In the court in banc, Justice Pateson in pronounc- ing judgment said : " Now the law on the subject of masters and workmen has undergone a variety of changes in the course of the last fifty years, and at last, an act of Parliament was passed in the sixth year of the reign of his Majesty King Greorge the Fourth, by which it was enacted, as- has been stated by one or two of the learned counsel who have addressed the court on this occasion — by which the object of the Legislature manifestly was, that all masters and all workmen should be left entirely free to act as they themselves choose with respect to the conduct of their business. The masters should be at liberty to conduct their business in what manner they pleased, and to give what wages they thought right; that the masters should be at liberty to con- duct their different establishments as they thought right ; that a number of masters might agree among themselves in what manner they would conduct their business respectively, and what wages they would pay. In like manner, the Legislature intended to allow that the workmen should meet together, and agree and consider, and come to a positive agreement among themselves, on what wages they would work for, what terms they would require for their work; and they were not to be restricted from so doing merely because many of the workmen were in the employment of one person, and, perhaps, others in the employment of others. The Legislature having left both parties, therefore, intentionally quite free to make what agreement among themselves they thought fit, foreseeing, nevertheless, that it might be that much violence might be used, or much intimida- 128 STRIKES AS CONSPIRACIES. [§ 7. tion might be used, in order to carry into effect such agreement as the parties among themselves might make, enacted positively that no such violence, and no intimidation, and no molesting, and no obstructing should take place. And by that section of the act of Parliament to which the attention of the court has been directed, it is provided, that if any person shall, by violence to the person or property, or by threats or intimidation, or by molesting, or in any way obstructing another, force or endeavor to force, any journeyman, manufacturer, workman, or other' person hired or employed in any manufacture, trade or business, to depart from his hiring, employment, or work, or to return his work before the same shall be finished; or to prevent, or endeavor to prevent, any journeyman, manufacturer, workman, or other person, not being hired or employed, from hiring himself, or from accepting work or employment from any person or persons, therefore, by either of these means, to persuade and endeavor to force any person to leave his employment, or to prevent any person from enter- ing into employment which he would otherwise have been Villing to enter into, or by violence or intimida- tion or molesting, to forqe, any manufacturer or person carrying on trade or business, to make any alteration in his mode of regulating, managing, con- ducting, or carrying on such manufacture, every person so offending or aiding or abetting or assist- ing therein, shall be imprisoned for any time not exceeding three calendar months. That is the offense created' by the act of Parliament. Most of the charges in this indictment have reference to this act of Parliament, because they are charges that you have combined and conspired together to do these very things that are prohibited by act of Parliament, § v.] MODERN DOCTRINE. 129 that is to say, by threats, by intimidation, by molest- ing, by obstructing, to foree workmen who were in the employment of Messrs. Perry, to leave their work; to force other persons who would have been willing to have been employed by the Messrs. Perry, not to enter into, their employment, and to force the M-essrs. Perry to change and alter, and make altera- tions in the mode of regulating and conducting and managing their business. Most of the counts of the indictment are framed oh this act of Parliament. Now the offenses do not consist in combination and agreement amongst the men to raise their wages ; it consists in using these means that are stated in the act of Parliament to be illegal, namely, violence, threats and intimidations,' and molesting and obstructing, in order to produce those effects which are mentioned in the act of Parliament. In this case there is no charge in the indictment of any violence to the person or the property of any person. There is no such charge in the indictment, nor was there any evidence of it. The charges consist of threats, intim- idation, obstructing and molesting, in a great variety of ways. Now some of you. Peel and (prreen, are not persons employed at Wolverhampton at all ; the other four are you. William Peel and Frederick Green, appear to be members, one of you the secretary, and the other a delegate from the association which is said to have been formed in London, and to have existed for a great many years, the object of which, as far as we can gather it, appears to be to assist workmen in combining together, or in any steps they may take to protect what they may consider to be their rights, as against their masters. How far that is a legal association, or as to the merits of that association, I do not apprehend the court is here called 130 STRIKES AS CONSPIRACIES. [§ 7. on to enter into, or to give any opinion upon it, with regard to its illegality, or with regard to the mode in which it is conducted. Jt is said there never has been any complaint made against them. It may be so. I cannot tell. But this is plain; it must be an associa- tion, which, if they have, as they say, very large funds at their command,must be one certainly, of a very dan- gerous character, and may be used for very bad and very oppressive purposes. I do not say that it has been, but certainly it is one that may be so used, and there is nothing to be said in favor of persons who belong to an association of that kind, and who, of their own accord, no doubt, go down to different parts of the country, to assist workmen who have, or think they have, any grievance whatever as against their masters and endeavor to regulate their wages. They are volunteers in that respect, and it is far better, it seems to me, for the workmen to be left to act as they themselves think proper, instead of having so power- ful a body, as it seems this association must be with the money which they are said to have at their command. However, be that as it may, the offense consists, as I have already stated, in endeavoring to do these different acts by the unlawful means stated in this indictment. Now whether those means were used or not, whether there was originally a conspiracy to use those means or not, was a question which, by the law of this land, was entrusted entirely to the jury who tried the case. The jury, in this case, have come to a conclusion that all of you were guilty of a conspiracy to use those unlawful means in the various ways charged in the indictment, and it is impossible for the court not to see that, upon the evidence that has' been detailed and read to the court on a former day, § v.] MODERN DOCTRINE. 131 the jury had materials from which they might come to that conclusion. It was in their province to deter- mine if the charges were established or not against you; they have been fully satisfied that they were all established, and the court sees no reason to doubt the propriety of their verdict." * * * " But it does not appear, certainly, by the evidence that any words of express threats were used by any one of the persons I think that are implicated in this case, nor any words of express intimidation. But no man can fail to see that there may be threats, and there maybe intimida- tion, and there may be molesting, and there may be obstructing, w;hich the jury are quite satisfied have taken place from all the evidence in the case, without there being any express words used by which a man should show any violent threats towards another, or any express intimidation. There are these facts, however, disclosed in the early part of the evidence, that you Frederick Grreen, I think, being a delegate from London, on complaint being made in respect to some person who had been discharged from the employment of Mr. Perry, you wanting to know if it was because he was a member of some association, were told he was discharged because his employers had no occasion for his services, and you said ' If he was discharged because he was a member of an asso- ciation, we have twenty thousand pounds at our com- mand, we will stop the supplies, and you shall not have a single hand to do your work.' How far it can be doubted that that might intimidate " even a man of strong nerve, who had a great deal of work which he wanted- done, and who knew and was told of the great power this association ha«3., it was for the jury to determine ; and I cannot say 132 STRIKES AS CONSPIRACIES. [§ 7. there may not have been great intimidation operat- ing on the mind of Mr. Perry, from the language then used, although there was no express state- ment to that effect. And so again, with respect to that placard which was afterwards issued, signed by William Peel. Without going into all the language of that placard, no person can possibly read that without seeing that it contains very violent and inflammatory language ; abusing very much the con- duct of the masters, finding great fault with them, and as being persons who ought to be resisted and coerced in every way, and crying up the conduct of the workmen, and of the persons to whom it was addressed, as being temperate in every respect. I say that there cannot be any doubt that there was evidence from which the jury might fairly draw the conclusion that the intention was to molest, intimidate and obstruct. Therefore, there is nothing to prevent the court from passing what appears to be a proper sentence on such an indictment as this, either in respect of any doubt as to the propriety of the verdict, or as coming within the meaning of this act of Parliament. The charge is not directly under this act, because the act makes it an offense, and makes it an offense punishable by summary proceedings before a magistrate, and the charge in the indictment, as far as the offense is concerned, when proceeded for before a magistrate against persons who committed that offense, is confined to three calendar months imprison- ment ; but this is a charge of conspiracy to do those acts, and that is an offense which is a misdemeanor, and which is punishable by our law by fine and imprisonment at the discretion of the court. The court is not confined to the time mentioned in the act of Parliament, of three calendar months, but is § 7.] MODERN DOCTRINE. 13M at liberty and is to look into all tlie circumstances of the case, and see what in their opinion and their judgment is the right punishment to be inflicted on parties who have so conspired. I mention that, lest it should be supposed, in the sentence I am about to pass, that the act of Parliament in any way restricted our power. Now, then, taking the whole of these circumstances into consideration, and being very willing to listen to the affidavits that have been made stating that there was no wrong intention on the part of those who have made those affidavits (although it is difl[icult to reconcile such an assertion with the evidence that has been produced), the court are not disposed to visit this case with more severity than it properly requires, in order that it may be a warning to others as we hope it will be received, and particu- larly to the members of this association, that they should take care that they do not overstep the limits of the law in any respect. I would moreover, say, that they should take care to keep very much within the limits, because if they peaceably trying to persuaJe others to adopt the same view. If it is law- ful for half-a-dozen people to agree together and say; ' why, we will not work unless Messrs. Jones and Potts raise our wages,' so it is perfectly reasonable to say to a third man, ' you had better do that too,' if they do not use threats to deter him from doing it; but it is not necessaty to use actual threats, if the language used is such as tends to co7ivey the impres- sion of intimidation." The court also instructed the jury that molestation would be suflBcient to sustain the indictment. 6. Rex V. Bykerdike,' The defendants were indicted for conspiring to dictate to masters what workmen they should employ, and for preventing fellow-work- men from continuing in employment. The court instructed the jury that a conspiracy to procure the discharge of any of the workmen would support the indictment, which did not necessarily lay the intent as to all the workmen ; and if it did, that it was still a question whether the facts would not have proved it as to all. Further, that the statute never meant to empower workmen to meet and conibine for the purpose of dictating to the master whom he should employ; and that this compulsion was. clearly illegal. 7. In re William Perliaiii. - Threats. The said Perham was convicted on an indictment under the above statute for endeavoring by threats to force a workman to depart from his employment. The appli- cation was for a writ of habeas corpus on the ground 1 Rex v. Bykerdike, i Moody and Robinson, 179. 2 In re William Perham, 5 Hurl, and Nor. (Ex.) 30. 140 STRIKES AS CONSPIRACIES. [§ V. of the insufficiency of tlie indictment. The threats were, "if you dare work we shall consider you as blacks, and when we go in we shall strike against you, and strike against you all over London," and following workmen to their homes. It was held that the conviction on the indictment was proper, and the writ was refused. 8. Wood v. Bowroii. ^ Threats. Case stated by justices of Durham, under 20 and 21 Vict. c. 43. " At a petty sessions holden at Stockton, on the 20th December, 1865, an information was preferred by Thomas Bowron, builder (the respondent), against William Wood and Thomas Barron, bricklayers (the appellants) under i^ 3 of 6 Greo. 4, c. 129, charging that they, Wood and Barron, did on the 28th October last past, at, &c., unlawfully, by using certain threats, force or endeavor to force, the resxjondent to limit the number of his apprentices ; and the appellants were convicted of the said offense, and sentenced each to one calendar month's imprisonment, with hard labor." Upon the hearing of the information, it was proved, on the part of the respondent, and found as facts, that the respondent was a master builder in Stockton, and the appellants were bricklayers, and members of a certain society or association called the United Order of Bricklayers, Wood being the president and Barrow the secretary. On a Monday morning in the early part of October last, the respondent was engaged at a certain building in Stockton, and when there he saw the appellant Barrow and another man named O'Hare standing within about thirty yards of the building; the respondent sent two of his men for a ladder, when they were stopped by Barrow and O'Hare, 1 Wood V. Bowron, 2 L,. R. Q. B. 21. § 7.] MODERN DOCTRINE. 141 who both spoke to them; the men then went back to the building and began to pick up their tools and stated they had been stopped by Barrow and O'Hare. The respon- dent then asked Barrow and O'Hare the reason why the men had been stopped, and they told him that he must know it was on account of his apprentices. In October last the respondent had four apprentices. All his men stopped at that time, with the exception of two bricklayers. There was no agreement between the respondent and his workmen with regard to the time that the engagement between them should con- tinue; the men were at liberty to leave, and the respondent to discharge, at any time. About two or three weeks after the stoppage, the respondent wrote to the appellant Barrow the following letter : " Norton Roads, October 28, 1865. To THE Secretary of the Bricklayers' Union : Sir, — "Will you please to inform me what was the reason that my men were taken away from me ? I have heard that it was because I employed too many apprentices ; of this I had no notice. I should like you to let me know what you require me to do. Yours respectfully, Thos. Bowron." In reply the respondent received the following letter, in the handwriting of Barrow. " Black Horse, Oct. 28. 8ir — At a summoned meeting held at the above place of the United Order of Bricklayers, it was proposed, seconded, and carried unanimously, that no Society Bricklayer will work for Thomas Bowron until such times as he parts with some of his appren- tices; namely, he will be allowed two, and when his oldest apprentice arrives to his last year of servitude, he will be allowed a third, and until then there will be no society Bricklayer work for him ; and, further, 142 STRIKES AS CONSPIRACIES. [§ 7. there will be so mucli expenses to pay as well before any Society Bricklayer will work for the said Thomas Bowron. By order of the Society." It was proved to the satisfaction of the justices, and they found as a fact, that this letter was written at a meeting of the United Order of Bricklayers, at which meeting Wood acted as chairman and Barrow as secretary. Shortly after the receipt of the above letter, the respondent had a demand made upon him for 18 1. by Wood, who stated that the money must be paid before they would allow any men to work for the respondent. In reply to the letter received by the respondent from Barrow, the respondent again wrote to Barrow, requesting to know upon what terms he would be allowed to have men ; and in ans'Wer he received a letter to the effect that it would be decided at a general meeting to be held on the Thursday fol- lowing. On the 28th November, the respondent sent his foreman, George Lazenby, to the Bricklayers' Union, at their request. He saw Wood there, who told him that he supposed he (Lazenby) had come to know the result in 3Ir. Bowron's case, and Lazenby replied that he had. Wood then said the decision they had come to was, that Mr. Bowron must pay 18 1. expenses incurred by the society, otherwise the men would not be allowed to go to work. The justices being of the opinion that the evidence brought the case within the operation of § 3 of 6 Greo. 4, c. 129, gave their determination against the appel- lants in the manner before stated. If the court should be of opinion that the conviction was legally and properly made, and the appellants are liable as aforesaid, the conviction was to stand; but if § v.] MODERN DOCTRINES. 143 the court should be of opinion otherwise, the com- plaint was to be dismissed. In deciding the case, Chief Justice Cockburn said; "I am of opinion that this conviction must be quashed. It is quite unnecessary to determine, in the present case, whether the combination of the workmen form- ing this association, and the resolution which they adopted that no member of the society would work for the respondent until he reduced the number of his apprentices, would be, at common law, lawful or not. I quite agree with Mr. Coleridge that the cases ought not to be pressed further than they have gone ; and we ought, as long as nothing is done contrary to law, to leave it open to labor on the one hand and capital on the other to make the best terms they can for themselves. Large numbers of men, who have not the advantage of wealth, very often can protect their own interests only by means of association and co-op- eration, and we ought not to strain the law against men who have only their own labor and their associa- tion by which they can act in the assistance of one another. Nevertheless, there may be combinations which are contrary to the law — contrary to the statute law or the common law, as the case may be. It is unnecessary, however, to determine the important question of law, whether such a combination as the present was lawful or not. The conviction is under this particular statute ; and in order to sustain the conviction, it is necessary that there should be a threat or intimidation with the object of compelling the master to alter the conduct of his business, or to limit the number of apprentices he may employ. It is most important, therefore, to look at the facts, in order to ascertain whether there was a threat or intimidation such as is the^ subject matter of the conviction. It 144 STRIKES AS CONSPIRACIES. [§ 7. seems that certain members of the association, of which the appellants are respectively chairman and secretary, were in the employment of Mr. Bowron, the respondent. On a certain day, without notice to him, certain of his workmen, having been seen in con- versation with the appellant Barrow, suddenly leave his ser-^ice, no threat at the time being made to the master. Tlje men having left, he inquires of Barrow why the men left. Barrow simply says : ' You must know that it was in consequence of your apprentices.' In that I can find no threat on the part of Barrow, still less a threat by Wood. The master is the next person who moves in the matter. There is no communication made to him spontaneously by the association; the reso- lution bears no semblance of an intention to intimidate him by means of a threat ; but the master himself, not only for the purpose of ascertaining what was the cause for which the men had withdrawn from his employment, but evidently for the purpose of entering if possible, into an arrangement with the society, puts himself in motion, and writes to ask what are the reasons and the grounds for which these men are withdrawn. Upon that a letter is written by Barrow at a meeting, at which it appears the appellant Wood presided, for which letter, therefore, I think, if it amounted to a threat. Wood would have been respon- sible. The letter, however, which Barrow writes, upon the face of it, appears to be merely an explana- tion of how it came to pass that these men had left the respondent's employment. Now, inasmuch as it is not for the combination, as it is no't for the resolu- tion, as it is not for what may have been done under the resolution, either by the society or by the men leaving, that this information was laid or this con- viction has been obtained, but for a threat, § v.] MODERN DOCTRINE. 145 we must see whether the letter written under the circumstances I have adverted to amounts to a threat. I think it does not. If there had been anything to show that the letter purporting to afford an expla- nation by way of answer to a question put by the employer had been intended really to convey a threat, and the magistrates had come to that conclusion, and said, ' We think that the defendants have, under the guise of an explanation, conveyed that which was intended to be a threat,' that would have been another matter. I must say I do not think there is enough to warrant this inference under the circumstances, seeing that the master himself invited the explanation. The appellants merely told him what had been the cause of the withdrawal of the men, and I think that does not amount to a threat within the terms of the act of Parliament. Upon that ground I think that the con- viction cannot be sustained. Mr. Manisty has pointed out, with truth, that this was a matter on which it was for the magistrates to adjudicate. If they had drawn the inference that what had been done had been done under the guise of an explanation, but really with the intention of conveying a threat that might have made all the difference. But the magistrates have not drawn that conclusion ; they have submitted the whole case to us upon the evidence ; and unless we can say that the magistrates were bound to draw the inference, we must not assume that they have done so, when we think that they ought not. Therefore it is competent to us to look at all the circumstances of the case, to satisfy ourselves whether there can be a con- viction against these men of having sent this letter with the intention and purpose of conveying a threat. Under all the circumstances of this case, I think this was neither more nor less than an answer and expla- 146 STRIKES AS CONSPIRACIES. [§ 7. nation to the master, who was evidently desiring to enter into a negotiation ; and I do not think there is enough to justify an inference that this letter was written mala fide. Therefore I think the conviction should be quashed." Mellor, J., said, " I am of the same opinion. It is quite unnecessary in this case, as it seems to me, to express any opinion as to how far the act of the men in meeting and coming to that resolution was or was not lawful at common law. The authorities seem to differ as to how far a combination may make an act unlawful. Lord Campbell in Hilton v. Eckerly, ex- pressed a strong opinion in favor of the right of labor to combine as , to wages ; and the late Mr. Justice Crompton, in that case and in the case of Walsby v. Anley, seems to differ in opinion with Lord Campbell. It is not necessary to determine in this case how far the legality of the act is affected by the actual combi- nation. I am clear that to sustain the conviction the justices should have found as a fact that the defend- ants, under color of giving the answer which they did to the application of the master, took advantage of the opportunity to urge that which amounted to a threat, and which they intended to- operate as a threat. Now, if the justices had found that as a fact, of course I should have had very great difficulty in coming to any other conclusion than that the con- viction was legal. But the justices have abstained from that finding; they have merely stated the evidence generally, without drawing any inference ; and the evidence shows, as far as I can judge, that this was an answer bona fide made to an application for information on the part of the master as to what was the reason why the men left. If so, it evidently was no threat. It appears to me that, upon the facts § 7.] MODERN DOCTRINE. 147 SO stated, we cannot draw the inference that it was mala fide ; we must look at the mere circumstances as the justices have stated them. It is not suflScient that the justices were in a condition to draw a conclu- sion one way or the other ; they have not done so, and certainly we are not to do it." Shee, J., said, " I am of the same opinion. I think that the facts of this case have been very conveniently submitted to us as in the three stages by Mr. Coleridge. As to the last of those stages, that has, I think, been satisfactorily disposed of. The fact of Wood asking for 18 1, for the costs and expenses the society had been to had nothing to do with the threat of which the appellants were convicted by the magistrates, viz. of ' having unlawfully, by using certain threats, forced, or endeavored to force, their employer to limit the number of his apprentices.' They were convicted of this threat; and baking the first stage proposed by Mr. Coleridge, was the passing of that resolution a threat ? Is it an intimidation given to any person with the intention at the time it is made of forcing or unduly influencing his conduct ? It does not appear upon this case that at the time that resolution was passed either of the appellants was present at the meeting. But independently of that, supposing that they had been present at the meeting, the resolution itself, though the name of Mr. Bowron is mentioned in it, does not appear to have been intended to be communicated to him ; it is in its terms nothing but a resolution in the shape of a rule of conduct agreed on by the members of the United Order of Bricklayers. If it had been communicated to the respondent, his name being mentioned in it, at the time it was made, then, indeed, there might be ground for contending^ and I should not be indisposed to think, upon the 148 STRIKES AS CONSPIRACIES. [§ 7- authority of Walsby v. Anley (30 L. J. M. C.) 1211— that the communication of it was a threat. There being, however, nothing of any kind to show it was intended to communicate the resolution to the respon- dent, it seems to me the fact that it was not communi- cated to him at the time takes it clearly out of the denomination of a threat; for there cannot be a threat to any one unless it be intimated to him. A threat must be an intimation made with the intention of forcing or unduly influencing the conduct of persons to whom it is addressed. Then, on the second stage of the case, to which Mr. Coleridge invites our attention, was the communication of this resolution on the 28th of October a threat? I think not. A threat must be an intimation given by a person of his own accord, and within this statute it must be made with an intent to coerce or endeavor to force the future conduct of the person to whom it is addressed. In considering whether this communication of the resolution was a threat, we must look at the words and essence of the resolution itself. It purports to be nothing but a rule of conduct of the members of the order of United Bricklayers ; moreover, it was communicated long after it was made — possibly more than a month after it was made — and then in answer to an inquiry. It seems to me that it was only infor- mation given at the master's request. The resolution does not appear to have been intended to be communi- cated to him at the time it was made. It was sent as information in answer to his inquiry, ' why did these men leave my employment ? ' ' They left it because the resolution was passed by the society of which they are members, and that is now communicated to you.' There is nothing in this case to show that what was done was done in the way charged, as a § 7.] MODERN DOCTRINE. 149 threat, in order to force the respondent to change his mode of conducting his business for the future. It appears to me, therefore, that the conviction should be quashed." Lush J. said : " I am also of the same opinion, that there is no evidence to sustain the conviction. After the decisions that have been given upon this statute, it is too late to say that the word ' threat ' is limited to the declaration of an intention to do those acts with which it stands in intimate connection, viz. acts of violence to the property or person of another. The cases that have been decided show that the word must have a wider sense ; namely, a threat by act or words of doing some injury to another person. But I appre- hend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed. Now, here a resolution was come to not to work for the particular master until he reduced the number of his apxjrentices. Whatever its quality might be at common law, certainly it is per se no offense against the statute. Neverthele^^s, it might have been so used as to constitute a threat. The question in my mind is, whether it was used for such a purpose as to be construed a threat within the meaning of the statute. When I find the resolution previously passed was not communicated to the master except in answer to his inquiry, by way of explanation why these persons had left his employment, and then communicated simply, for the purpose of giving that information, it seems to me that there are wanting the essential elements of a threat. Therefore, I am of the opinion that the appellants were not rightly convicted." 150 STRIKES AS CONSPIRACIES. [§ V. 9. O'Neill V. longman.i Threats.— Case stated by stipendary Police Magistrate for the borough of Kingston-upon-Hull, under Statutes 20 and 21 Vict. c. 43. " Upon an information preferred by the respondent against the appellants under Stat. 6 Gr. 4, c. 129, § 3, charging that the appellants did, 'unlawfully by threats and intimidation endeavor to force' the re- spondent ' who was then and there a workman hired in the trade and business of a boiler-maker by Henry Eaines Kruger and his partners, then and there to depart from his said hiring contrary to the said statute,' each of the appellants was convicted of the said offense, and adjudged to be imprisoned and kept to hard labor for three calendar months. "Messrs. Kruger, Dannatt & Co. who are boiler makers at Hull, some time ago contracted with the Manchester and Lincolnshire Railway Company to make two boilers. Having on a former occasion employed a man named Grarvan to execute a similar contract, Messrs. Kruger applied to him again. The negotiation, however, failed, and they declined to accede to Garvan's terms as to the time and mode of payment. Grarvan is a member of the United Boiler Makers and Iron Shipbuilders' Society, a benefit society or club not registered, but having branches in every place of importance in England, Scotland, Ireland and Wales, the executive committee of . the society being stationed at Manchester. The executive committee at Manchester deriving information from the local boards, issue a report in a printed circular periodically on matters connected with the society, and if a member is expelled his name is inserted in such report. 1 O'Neill V. Longman, 4 Best and Smith, 376. § v.] MODERN DOCTRINE. 151 "The appellants, O'Neill and Gralbraith are members of the society, O'Neill being president of the Hull branch, one Roberts being the local secretary. "The negotiation with Grarvan having gone off, Messrs. Kruger's foreman of boiler-makers, Longman, the respondent, communicated on the 6th March, 1863, with the secretary of the Hull branch of the boiler- makers society, with a view of obtaining men to per- form the work. The boiler-makers belonging to the society had divided themselves into three classes of workmen, " holders up," " rivetters," and " platers," the latter being the highest class, and comprising those who are supposed to be skilled in bending angle iron for- the boilers ; though in many very large establishments angle iron bending is performed by the blacksmiths, and not by those calling themselves exclusively boiler-makers, the boiler-makers having in reality sprung from the blacksmiths, and following one branch only of the blacksmiths' business. " Longman is a member of the society, or what is called a club-man, and there were at that time three other members of the society, Jordon, Bell and Long- thorne, in the employ of Messrs. Kruger. " On the 12th March all attempts to obtain men from the club having been unsuccessful, Messrs. Kruger ordered their foreman blacksmith, Norfolk, who is not a clubman, to commence work on the boilers by bend- ing angle iron, Norfolk having on former occasions performed similar work, and being fully competent as an angle iron-smith, though not ordinarily employed in such a way. Norfolk continued his work of bend- ing angle iron from the 12th without intermission. On the afternoon of the 12th Longman was summoned to attend a meeting of the society, the object of the meeting, as stated in the summons, being ' to stop an 152 STRIKES AS CONSPIKAOIES. [§ 7. encroachment.' Longman attended the meeting and found the encroachment to be 'Norfolk working at angle iron.' O'lSTeill was in the chair, and a resolu- tion was passed that the men belonging to the society should not be allowed to work at Messrs. Kruger's if Norfolk was allowed to work at angle-iron work. A resolution was then proposed by Longman and carried, that two deputies should be sent to Mr. West, Messrs. Kruger's foreman, to speak to him in reference to knocking off Norfolk from bending angle iron. . One deputy was to be rivetter, Fairfield, the other an angle-iron worker, Beaumont. O'Neill then told Long- man, Jordan and Bell, who were present, that, being clubmen working in Kruger's yard, they wo.uld have to come out if JSorfolk was not knocked off angle-iron work. Beaumont and Fairfield went from the club to the house of Messrs. Kruger's foreman, and Beaumont offered his services as an angle iron-smith, stating he was a clubman, and had come from the club and was going to return there again. He was told that Nor- folk had been set to work, but was promised a job if he came the next day. "On the 13th of March, Beaumont went to Messrs. Kruger's, and had. some conversation with Longman and the other clubmen in their employ. He was told by West to begin angle-iron turning, and replied that he understood the club to say that he was not to work unless Norfolk gave over working at the angle-iron work. He went away without working. After dinner on the 13th, Jordan, Bell and Longthorne did not return to work, but Longman continued to work as usual. " On the nth March, Beaumont came to work for a few hours and bent one bar of angle iron, but the work was so badly done that it could not be used, and § v.] MODERN DOCTRINE. 153 Jordon, Bell and Longthorne also came to work as usual. On the evening of the 14th there was another club meeting, and after the 14th neither Beaumont, Jordon, Bell or Longthorne ever came to work again; Longman, however, continued to work as usual. "The 16th March was the anniversary of the society ; and there was a dinner at 7 P. M. Longman and Longthorne went in the evening and called O'Neill out from the dinner, and Longman asked him as president of the Hull branch of the society, why they should leave Kruger's works. O'Neill replied : ' I, John O'lSTeill, as president of the society, order you (mean- ing Longman and Longthorne) to come out ;' and he called Longman ' a damned thief,' and other abusive names, and said 'if he (O'Neill) had been one of the men working at Kruger's premises, previous to tlii.s occurrence, he (O'Neill) should certainly have pulled Longman out.' O'Neill also said that ' he would use his influence to have Longman turned out of the society. Longman, however, did not leave his work at Messrs. Kruger's. [On the 17th March,- Galbraith and others came. to Messrs. Kruger's works as a deputation from the club, with respect to the difficulty that had arisen in relation to the club-men working if Norfolk were allowed to continue his work at angle-iron bending. Kruger told the men at this interview that forbear- ance would not last forever, and Norfolk was continued at his work.] After this Longman received a summons to attend a meeting of the club on. the 28th ' on important business.' Longman attended the meeting at which there were fifty members present, and among the rest Gralbraith, O'Neill being in the chair. The business was whether Longman was going to stoj) in the society and leave Kruger's employ, or remain at Kruger's and be turned out of the society. Gralbraith 154 STRIKES AS CONSPIRACIES. [§ 7. made a report of the proceedings of the deputation to Messrs. Kruger on the 17th, which was put to the meeting, received and adopted. Longman was after- wards asked by O'Neill, from the chair, whether he intended to remain an honorable member and leave the shop (meaning Kruger's employ), or stay in the shop and be despised by the club, and have his name sent round all over the country in the report, and be put to all sorts of unpleasantness. Longman told O'lfeill that if there was anything to undergo he would bear the consequences ; but, several of the members having come round Longman, a resolution was passed giving him till Monday the 30th for his consideration, and Longman ^aid he would duly con- sider it. The result of which was, that he wrote to the secretary a letter declining to leave his employment. It was stated at this meeting that they could not legally turn Longman out of the society then, but would have to write to Manchester ; and a resolution was passed that Norfolk's case and the master's case should be determined according to rule, and Longman's case also, the rule being that club-men should not use their influence to obtain work for non- society men. Longman asked O'Neill what tjie rule was, and O'Neill replied they should refer to Man- chester. Longman, at the time the case was heard, could not say whether he had been turned out of the club or not, but he had received no notice to that effect. " The magistrate found each of the appellants guilty, being of opinion that the rules of the club (a copy of which was appended to the case) did not sanction what had been done by appellants, or offer any expla- nation of their conduct consistent with innocence ; and what took place on the 28ih March, looking alsp at the § 7.] MODERN DOCTRINE. 155 spirit previously evinced, constituted the ofifense con- templated by Stat. 6 G. 4, c. 129, § 3 : being also of opinion tliat there was a combination, not for the pur- pose bona fide of carrying out the rules of the club, but with the object of coercing Longman to depart from his hiring against the wish and also, to the injury both of himself and Messrs. Kruger, and with the in- tention thereby of coercing Messrs. Kruger to comply with the wishes of the club as to Norfolk. "The question for the opinion of the court was, whether the magistrate was entitled to find that such an endeavor on the part of each of the appellants to force Longman to depart from his hiring by threats and intimidation, as constituted the offense contem- plated by Stat. 6 G. 4, c. 129, § 3, had been made out." Wightman J. intei- alia said : " The question is whether these expressions of O'Neill are such a threat as bring the case within the act of Parliament. Long- man was a member of the society from which he was threatened to be turned out ; it was a society beneficial to the members ; no rule was infringed by his remain- ing in the employment of his masters , therefore, the effect of the threat was this: 'If you do not leave the employment of Messrs. Kruger, in which you are now, you shall cease to be a member and to have the benefit of this club.' Considering the place in which the words were spoken, I cannot put any other con- struction upon them. And the sending round his name all over the country was to be in a report issued by the executive committee at Manchester to the branches all over the country, including the place where Messrs. Kruger carried on business. It seems to me that this is a threat which would operate most formidably on the mind of a member of the society ; and I hardly know what sort of threat short of per- 156 STRIKES AS CONSPIRACIES. [§ 7. sonal violence would come within Stat. 6 Gr. 4, c. 129, § 3, if this is not such." He was of opinion that the evidence was not suffi- cient as to Gralbraith. Blackburn J. was of the same opinion as Wightman, except he thought the evidence sufficient as to Gal- braith. He said inter alia: "It is said that these persons thought theywere acting legally; if so, it is time they should be informed of their mistake. Every man has liberty to work for any master, but not to coerce others, or to combine to deprive others of that liberty. O'Neill was guilty of the offense of which he was convicted, and, though charged with acting jointly with another, namely Gfalbraith, may be convicted separately; and therefore, as against him, the convic- tion is affirmed." 10. O'Neill V. Ifi-uger.^ Threats to Coerce Employer. " The case was the same as in the preceding, substitut- ing the two following for the paragraphs between brackets in page 380. On Tuesday, the 17th March, 1863, Galbraith, with two other club-men, saw Mr. West at the works, and said the object of their visit was a deputation from the society to come to some terms as to the dispute which had arisen between the club-men in Kruger's employ and Messrs. Kruger as to Norfolk doing the angle-iron work at the boilers. West showed the deputation Beaumont's work. Galbraith said, if he had been master where such work was done he would have discharged any man who did it. West said to Gralbraith that they would have no comfort if Norfolk did not linish the angle-iron he had begun and in the meantime let the club send a competent man to do the 1 O'Neill V. Kruger, 4 Best & Smith, 385. § 7.] MODERN DOCTRINE. 157 angle-iron work for the other boiler. Gralbraith said lie would take upon himself to call a meeting of the society to seek for a competent man for Messrs. Kruger. Mr. Kruger was present. Galbraith said that none of the club-men would work for Messrs. Kruger so long as Norfolk, the smith, was at work at iron angle work. Kruger said, how would they like • to be so treated, as when they had applied for men and an incompetent man had boen sent, that they should be refused the services of their own man ; that it was a pj^oper blacksmith's job : that Norfolk had done it before, that he could do it well ; that the bar was spoilt tliat Beaumont had bent, and they wished to prevent them from having the services of a competent man, and asked who was to pay for Beau- mont's bad work. Gralbraith said one of the objects of the society was to obtain work for their men : that they had good men among them, and could provide Kruger an angle-iron smith competent for the work, but that when their man came Norfolk must cease the iron bending. They expressed their willingness to find Messrs. Kruger a competent man, but that they would have to wait two or three days for him, as business was very brisk, but that they would not allow any of their men to work in Kruger's yard so long as Norfolk was allowed to bend angle-iron work. Kruger put it to them, 'Am I to understand that our blacksmith is not allowed to bend angle-iron work so long as your man is in my employ ? ' Q-albraith replied that it was so ; their man would not work in Kruger's yard so long as Norfolk was engaged in bending angle-iron. " On the 18th March, West again saw Galbraith and two other club-men who previously had been in Messrs. Kruger's employ. They camfe to say they 158 STRIKES AS CONSPIRACIES. [§ 7. could not find an angle-iron smith ; they then pro- posed that O'Neill should come and bend the angle- iron for them, which was declined by "West. Before they left, they said they would look out again ; West said come in after dinner ; but they never came. On the same day, after the interview, a man went to Messrs. Kruger's yard who said he was a general worker, and West declined to have him, saying we have waited long enough for you and we shall take our own course, — meaning that Messrs. Krugers would employ what men they chose, and from what source they chose. " The magistrates found each of the appellants .guilty, being of opinion that each had endeavored to force Messrs. Kruger to alter their mode of con- ducting and carrying on their business as to Norfolk by threats and intimidation. "The question for the opinion of the court was whether the magistrate was entitled to come to the conclusion that the offense charged against the appel- lants, and contemplated by Stat. 6 Gr. 4, c. 129, § 3, of endeavoring by threats and intimidation to force Kruger to make an alteration in the mode of carrying on his business had been made out. " All of the judges were of opinion that a case was not made out against either O'Neill or Gralbraith, that the language used was not threats within the meaning of the statute." Chief Justice Cockburn, inter alia said, "As regards Gralbraith, the question turns on the conversation between him and the respondent ; there are passages in it which bear the appearance of threats and coercion by the former, and are capable of being so construed if read alone ; but looking at all the circumstances I am disposed to think that he went for the purpose of § 7.] MODERN DOCTRINE. 159 discussing the matter rather than intimidate. At any rate there is so much doubt, Gralbraith" being a person charged with a criminal oflfense, should have the bene- fit of it. If he had gone with his associates in the first instance to the respondent and stated that unless Norfolk was dismissed no members of the club would be allowed to work for him, this would have been intimidation. But the club had come to a resolution that no member should work at Kruger's works if Norfolk was allowed to remain at angle-iron work. Three of them had accordingly left Kruger's works, and one was being threatened for not leaving. Then it might well be that Gralbraith, the end sought by the resolution having been in great measure gained, thought it desirable that some arrangement should be come to. In carrying out that intention he would naturally represent to the respondent the real state of things, reminding him of the resolution come to by the society, of the fact that three of the club- men had already left his service, and of the impossi- bility of getting any more club-men unless Norfolk were dismissed. The respondent very properly declined to be dictated to, but his refusal is not con- ' elusive to show that Gralbraith intended to coerce him. On the whole I think that Gralbraith only meant to try and induce the respondent to come to terms. This is not an ofi'ense against Statute 6 Gr. 4, c. 129, §'3, and there-fore the conviction as against Gralbraith, as well as against O'Neill, must be quashed." 11. Threats and intimidation to compel a master to discharge employes agreeing not to go on strike. Walshy v. Anley.^ *' Case stated under Statute 20 and 21 Vict. c. 43, § 3. On the 9th June the defendant was con- 1 Walsby v. Anley, 7 Jurist, N. C, 465- 160 STRIKES AS CONSPIRACIES. [§ 7. Ticted, by William Corrie, Esq., one of the magistrates of the police courts of the metropolis sitting at Clerkenwell police court ; under the 6 Greo. 4, c. 129, § 3, for unlawfully, on the 16th May, 1860, within the Metropolitan police district, in the county of Middle- sex, by threats, endeavoring to force one Philip Anley, then and there carrying on the trade of a builder, to limit the description of his workmen ; and the defen- dant was ordered to be imprisoned for one- calendar month, with hard labor. It was proved by Philip Aniey, the prosecutor, and other witnesses, that the prosecutor carried on the trade of a builder in White- cross Street, Middlesex ; that he employed about 100 workmen ; that in the year 1859 there had been a strike of workmen employed in the building trade, and that he, the prosecutor, then resolved not to employ, and did -not employ for some time, any work- men who declined to work under what was called ' the declaration,' that it was well understood in the trade what ' the declaration ' was, being to the following effect. 'I declare that I am not now, nor will I during my 'engagement with you, become a member of or support any society which directly or indirectly interferes with the arrangements of this or any other establish- ment, or the hours or terms of labor, and that I recognize the right of employers and employed individually to make any trade engagements on which they may choose to agree.' On the day named in the convention the prosecutor had in his employment two or more men working under this ' declaration ; ' that on that day the defendant and two of the other work- men brought to the prosecutor a paper signed by the defendant and about thirty other workmen, of which the following is a copy. — 'At a meeting of the joiners § 7.] MODERN DOCTRINE. 161 in the employ of Mr. Anley, on Tuesday evening, tlie 15th May, 1860, it was resolved, ' that Mr. Anley be given to understand, that unless the men who are working under 'the declaration' in his shop be dis- charged, and we have a definite answer by dinner- time to that effect, we cease work immediately,' The defendant, -in reply to questions put by the prosecu- tor, said they had no fault to find with him, his fore- man or clerks, or with the wages he (the defendant) received; and when the prosecutor inquired what it was he wanted, he answered, 'you must discharge those two men who are working under the declaration, and if you do not, we will leave work.' The prose- cutor answered, 'I will not be dictated to, and I will rather close my shop than submit to your dictation.' On the same day the defendant and all the workmen who had signed the paper left his employment, and had not returned up to the time of conviction. It was contended by the counsel for the defendant that what his client had done was not a threat within the mean- ing of the act of Parliament; but the magistrate, being of the opinion that it was an offense under the act, convicted the defendant, and stated this case for the opinion of the court whether the determination is erroneous in point of law." Opinion of Chief Justice Cockburn. " I am decid- edly of the opinion that every workman in the service of an employer is entitled to the free and unfettered exercise of his own discretion whether he will continue in that employment, provided he has not entered into a contract for a specific period of service. It rests with himself whether he will remain in- such employment in conjunction with any other person or persons with whom he may not choose to work. And more than that, if several persons in the employment of a master 162 STRIKES AS COKTSPIRACIES. [§ 7. consider others in that employment obnoxious, either personally or on account of their character or conduct, they have a perfect right to put to their employer the alternative whether he will discharge the obnoxious person or persons and retain their service, or lose them and retain the obnoxious persons. But if men go fur- ther than that, and do not fairly put the alternative to the master, but seek to coerce him by the threat of doing something which is likely to operate to his injury if he does not discharge from his employment certain other persons against whom they have some objection, I think that they properly come within § 3 of Stat. 6 Greo., 4, c. 129, but the object was by threatening to leave his service at a particular conjuncture, to control the master as to the conduct of his business.' There- fore, although at first I doubted whether the convic- tion could be supported, and although I do not doubt that the appellant would be amenable under the term 'molesting' in the same clause of sec. 3, yet upon the whole, when we see that the purpose was not fairly to offer the alternative to the master, but that the resolution was presented with the purpose of driving out others from his employment, and 'of working an injury to him, it is an illegal proceeding and brings the appellants within -the statute; and therefore I concur with the rest of the court in thinking that the conviction was right." Crompton, J. said : " At first I entertained great doubts, on the ground that I did not see that the threat or intimidation employed was that of doing any unlawful act, or what the defendant had not a right to do. Any man may say to his master, ' It is my whim not to work with particular persons.' But then comes the question, whether any number of persons may combine to procure the discharge of fellow- . § 7.] MODERN DOCTRINE. 163 workmen by threatening that they will all leave in a body if those workmen are not discharged. It is a well known rule of law that one man may do what may not be done by a number of persons combined, when it tends to the injury of another. It is impor- tant to. see how that rule is affected by Stat. 6 Geo. 4, c. 129. This statute, by repealing all enactments against combinations, sets up the common law. Then sees. 4 and 5 were necessary to restrain the effect of the repealing section, sec. 4, as to the meetings of workmen therein mentioned, and sec. 5, as to the meetings of mas- ters therein mentioned, take both masters and workmen out of the operation of the common law. This makes me think that opinion is right, that these were offenses by the common law, and not offenses created by statute ; and all the precedents of indict- ments for combinations to raise wages, and for other offenses of this nature, were framed on the common law, and not under any of the statutes. Then sec. 4 does not apply to this combinaation. The charge is, that the appellant, with others, threatened their master that they would leave his employment, with the object of forcing him to discharge certain other workmen. That is clearly illegal, upon the authority of Reg. V. Rowlands, (5 Cox, C. C, 466, lY, Q. B. 671 ; 6 Jur. 268) and In re Perham (5 Jur. K 8., 1212, 1221), if the question had arisen on the evidence, whether that was the object was a question for the magistrate to decide, and I think that upon the evidence his decision was right. The threat did not apply to persons coming into the employment of the master, if that could make any difference, but to persons in his employment; and the threat is that 'unless the men: who are working under the declaration in his shop be discharged, and we have a definite answer by dinner- 164 STRIKES AS CONSPIRACIES. [§ 7- time to that effect, we will cease work immediately.' It is as clear as possible tliat this was threatening to carry out an illegal conspiracy of all who signed the document. That is prohibited by the common law, and not allowed by sec. 4 of Stat. 6 Geo. 4, c. 129, the object being to alter the description of workmen who should continue in the employment of the master." Hill J. said : " I have very little to add , to the reasons which my brothers have given, in which I concur. The word ' threats ' is to be construed with reference to the words which go before and follow, and accordingly there must be a threat to do an illegal act ; so that the question is, whether this is an illegal act. I subscribe to what the Lord Chief Justice has said. If one man acting honestly, or several persons so acting, give their master the alternative of contin- uing them in his service or discharging others, it is not illegal ; but if they act in combination to coerce their master to alter his mode of carrying on his busi- ness, or to limit the description of his workmen, they are guilty of an illegal conspiracy at common law : and there was abundant evidence before the magis- trate that this was a threat to carry out an illegal combination, which would be indictable at common law." Conviction affirmed. 12. Intimidation — Molestation — Obstruction. Reg. v. Druitt.i Act of 6 Geo. 4, c. 149, § 3, as modified by Sec. 1, 22 Vict. c. 34. "The defendants were members of a trade union of tailors. The workmen having at the ' instigation of the union, struck for wages, and the masters having employed work people, men and women, not being members of the union, the defendants, who were members of the managing committee of the 1 Reg. z: Druitt, lo Cox C. C. 592 (1867). § 7.] MODERN DOCTRINE. 165 union, caused ' pickets ' to be stationed about the doors of such employers to note work-people who went in and out, for the purpose of deterring them from con- tinuing in such employ and inducing them to join the union. Proof was given of the use of insulting ex- pressions and gestures used by 'the pickets' to the non-union work-people. Held to be ' intimidation,' 'molestation,' and 'obstruction,' within the meaning of the Statutes 6 Greo. 4, c. 129, § 3, and 22 Vict. c. 34, § 1." While picketing will be the subject of a separate section, yet what is said about it in this case is given here so as not to break the continuity. Picketing is simply a form of intimidation. This case is a very important one as giving the highest judicial interpretations of the above men- tioned statutes, and from the additional fact that Lord Coleridge, now the Lord Chief Justice of England, was counsel for the defense, and that after his elevation to his present high position, he entertained the same opinions on the subject of strikes that he did when at the bar. He was not only overruled in this case, but also when elevated to the bench. Ballantine Serg't, for the prosecution, stated the case to the jury. — "The charge was one of conspiracy, and, divested of all technical details, was that of interfering with and obstructing the business of other parties ; such interference and obstructions being carried on by illegal means. The question the jury would have to decide upon the facts. All the men at the bar were operative tailors. Some question had arisen last- year respecting wages between the opera- tive and the master tailors. Upon that occasion the latter yielded, and it was hoped that that would put an end to the agitation. Unfortunately, however, it 166 STRIKES AS CONSPIRACIES. [§ 7. had not that effect, for early in the present year fresh demands were made by the operatives. Whether those demands were just or not it was not for him to say. That tlie men had a right to make those demands, and, if considered exorbitant, that the masters had a right to refuse to comply with them, were points clearly admissible in law, and in point of fact that was the state of the case at that time — the operatives demanding certain terms, the masters refusing their demands. Under those circumstances, at an early period of the year, a strike was decided upon. It was right that the position of all parties connected with that strike — a term now perfectly well understood — should be placed before the jury and the world. There might be a great misapprehension existing on one side or the other. One could perfectly well understand the operatives refusing to work under certain terms ; one could also understand the masters refusing to grant those terms ; but it was not quite so easy to understand how operatives and masters could entertain a different opinion of each others interests. And yet fhere might be masters who would wish calmly to discuss the terms demanded of them, while, on the other hand, there might be among the men — as he believed there were here — a majority who were content with the terms at which they were working. Those not content formed themselves into a combina- tion against the masters merely, but one affecting their own brother workmen — and probably affecting the latter to a far greater extent than it ever could affect the masters. This was undoubtedly the state of things between the masters and the operative tailors in the month of April in the present year — the latter demanding and the former refusing the increased wages. At that time a meeting was held, which was § 7.] MODERN DOCTRINE. 167 attended by Driiitt, Adamson and Lawrence, Druitt acted as president, Lawrence was vice-president and Adamson took an active part in the proceedings. Druitt, who was a man of great intelligence, addressed the meeting, and his remarks had very considerable weight with the audience. The strike was then declared, and it was explained by Druitt that that strike must be carried out upon a system, that system being a system of picketing. Druitt on that occasion laid it down that pickets must be put on, or that the strike could never be rendered effective. It was here necessary to explain what was meant by picketing — a system which he should think could not be allowed either in this or any civilized community in the world. It consisted in planting men — sometimes half a dozen in number — in the neighborhood of a master tailor's shop, and, as a great deal of tailoring was done for the masters out of doors, watching the persons who did that work as they arrived and left, the object being to prevent any work being done by operatives for the masters. The pickets remained in the neighborhood where they were placed from the time the shops were opened until they were closed. He would not explain the threats and acts of intimidation which had been used, because he believed that those who had com- mitted those acts of violence had done so contrary to the wishes of the men who were now upon their trial: All he wanted was a legal verdict and decision upon the facts, and therefore he would not import into the ' case anything that had [not] a direct bearing upon the subject. The effect of the pickets was to create a source of annoyance to the masters, their customers, and visitors. When persons went into the shops they were watched, and opprobrious epithets were used towards those who were willing to take work. They 168 STRIKES AS CONSPIRACIES. [§ 7. were, moreover, watched on their way home, and, whether by the words or actions of the pickets, they were held out to be persons who were mean-spirited, seeking an advantage over their brother operatives, and doing that which was dirty and contemptible in the eyes of their fellow men. This was^ part of the effects of the system. But there were others. For instance, the picket of six not unfrequently accumu- lated to 400 and 500 and this crowd surrounded the shops of the masters. That a great quantity of noise and annoyance naturally followed might very well be supposed; and as this went on continuously, the number of police in the neighborhood had to be increased in consequence of the fear of disturbances entertained by the inhabitants. Some forty or fifty additional police had, for instance, to be put on in the neighborhood of Conduit Street, and the metropolis generally had been kept for several months in a state of ferment, under a system perfectly illegal in any country where law was dominant over unrestricted power or fancied right. The resolution in favor of the strike having been adopted on the 22d of April, the parties commenced operations on the 23rd, and on the 24th the system was in full play. Naturally it would be so, for no fewer than 3000 men struck. The con- sequence was that the doors of the master tailors were litterally blocked up. Every door was besieged. Every person who entered was watched, and everyone who left the shop was followed; and all this was carried out with a continuity which, if the system had anything like a laudable object in view, could not be considered as too highly praiseworthy. About a week afterwards another meeting was held at the Alhambra. At that meeting Druitt gave a graphic and humorous description of the plight in which the masters had § v.] MODERN DOCTRINE. 169 been placed by the pickets — how they had been com- pelled to go round to the backs of their houses with their goods, and how they had to drive about to a variety of places to deliver them and see their cus- tomers; and then he went on in a spirit of gratulation to say that the masters had had two-thirds of their business knocked off, and that by keeping up the picketing system the remainder one-third would speedily have to be relinquished. He then went on to promise the most favorable results to the operatives should the pickets be actively kept up. Then, as one committee could not carry out a system so extensive, sub-committees were formed, and about a dozen public houses were patronized by the operatives, each of which has been materially benefitted by the pickets meeting at these respective places of rendezvous, and there reporting the results of their proceedings. Then would arise this question — was that system illegal ? Supposing that no tailors were engaged in the case — supposing, also, that no strike was going on — the fact of two or three people standing outside a man's private house, and looking to see who went in and came out of it, watching everybody and ..every- thing, would, as a matter of common sense, be a source of practical annoyance. But if a man ke^jt a shop, and was in a similar manner watched by some two or three people, the annoyance would naturally become greater. The question, therefore, would arise whether, as a matter not of law, but of common sense, that was a species of annoyance which could be deemed a legal course of conduct for any parties to pursue. On the contrary, was it not more rational to suppose that in a country like England, where trade in all its branches flourished perhaps to an extent greater than in any other country in the world, 170 STRIKES AS CONSPIRACIES. [§ V. where there were skilled operatives like men now at the bar, questions between , masters and men must arise ? It was to be expected that there would always be a contest between capital and labor, and if capital were to bear sway there was no doubt that labor must be crushed. In every such case artizans and mechanics must be placed in a predicament, and when such a state of things took place he most thoroughly sympathized with those who had to do hard and labo- rious work, the more particularly if their labor were crushed down by capital. A law had been enacted to meet such a case as the present. The 6 Greo. 4, contained provisions which showed what the legis- lature had always empowered the operatives to do, and indeed the law upon that subject was perfectly .well delined. In point of fact there was no doubt about it, the law in the matter having been most liberally expounded. It was, for instance, undoubted law that every mechanic and operative might com- bine with other mechanics and operatives for the purpose of securiitg to himself such rights and such increase of wages as he might think himself entitled to receive, and that so long as he resorted to no improper or illegal acts his rights would be counte- nanced. Under the circumstances the operative tailors had a perfect right to combine among themselves, and every one of them had an equal right to combine with others, and to advise as to what they thought was for the benefit of their trade, and to say : 'Until the masters choose to yield to our demand, we, the men, will not work in their service.' Up to that point everything would be legal. But the same act of Parliament which provided for these rights and powers upon the part of the operatives, in terms substantially the same, declared thus: That, while § 7.] MODERN DOCTRINE. 171 maintaining those rights and powers, the operatives were neither to intimidate nor molest men who did not choose to join with them; in other words, that they were not to intimidate or molest masters who would not grant them their terms, or follow operatives who were willing to work for the terms. The only question in the case was this : Was the picketing system one of intimidation and molestation ? because, if it was, then the defendants were guilty of an offense against the law, for which they were liable to be con- victed." Coleridge, Q. C, for the defense said ; " They were there to discuss a very simple question of fact, and the whole matter for their consideration was, what was the true bearing of those facts, and what was the true and right inference to be drawn from them ? It was the true and the right inference to be drawn from them. It was perfectly true, and he had never disputed it, that the system of pickets, call it what they might, was instituted, or, at any rate, was con- tiiiued in consequence of the meeting held at the Alhambra, on the 22ud of April last; but it was insti- tuted, not for intimidation or molestation, but for the purpose of bringing about a more satisfactory state of things between themselves and their employers, and it was quite true that Messrs. Druitt & Lawrence were not, in a certain sense, responsible for it. What was it that by this system of picketing they intended to accomplish ? He maintained that the fanciful pic- tures which his learned friend had drawn really had no foundation in the case. It was clear that Messrs. Druitt & Lawrence, by the temper and tone of their speeches, had wished for nothing that was illegal to arise, and in reference to this he would read from the addresses which they gave at the meeting held at the 172 STRIKES AS CONSPIRACIES. [§ 7. Alhambra on the date referred to. They wished to discuss the matter fairly with the masters, but they positively declined to meet them ; they said, as it were : ' Here is our ultimatum — take that log or close the discussion.' And the discussion was closed accord- ingly, the men not being disposed to accept that which was offered' to them. As workingmen they had a per- fect right to deal with the conamodity which belonged to them — their labor; and the masters, on the other hand, had a perfect right to refuse it if they thought proper so to do. It was a question of labor and capital, and upon what terms that labor should be employed or rejected. The inen had a right to say they would stand aloof from their employers until the terms were such as they could accept, and nobody would dare to say that a strike was not a legitimate mode of carrying out their views. If it were not for strikes each indi- vidual workman would be perfectly in the hands of Ms master, to be dealt with at his mercy, or in any dicta- torial or abusive manner he might think fit. The strike, then, had been adopted in this case as a means of bringing the masters to the discussion of the ques- tions at issue, and to determine what was only fair and reasonable. All that the workmen had endeavored to do from the first to the lasi^ of the transaction- was not to dictate any particular terms nor any particular style of remuneration, but to bring the masters, as he had said, to a fair discussion of the matter, and to a proper adjustment of the dispute between them; of course, if they could not bring the masters to a fair discussion of their grievances, there would have been no other course open to them but to go to the workhouse, or to have submitted to anything that might be offered to them. They felt they had no power against the com- bined wealth of the eighty-eight firms unless they § 7.] [MODERN DOCTEINE. 173 could enlist a large mass of their workmen — not ex- actly those who were employed by the firms, but those who would be likely to accept work should any vacancy arise in them. If they could not interest and bring large masses of workmen to stand shoulder to shoulder, and to make the discussion a fair one be- tween capital on the one hand and labor on the other, there would have been an end of it, and therefore, what he submitted to the jury was that they had a right to strike and go to other persons in like situ- ations to themselves, and point out to them a course in order that they might take a similar view of it. That which Mr. Druitt and his fellow-workmen did, then, at the Alhambra was perfectly correct. The picket system after all was not so alarming as had been described, and the learned gentleman asked the jury to discriminate between the evidence that had been loosely given by policemen who had been en- gaged by the prosecution, by an auctioneer and others who had striven to show that there had been an excess of the law in respect to it. If the workmen had a right to strike, and to influence other people to come to their terms, the defendants could not be guilty of the charge alleged to them. How were they to find out who the workmen were and where they lived unless men were engaged to do so, by following them and going to their homes ? The men had a perfect right to watch the workmen and to follow them home for the purpose of ascertaining where they lived, and then to use such arguments as would be likely to prevent them working for the same employer again. It was all very well to say that their conduct had been the means of frightening individuals, but where was one that had been so terrified ? Not a single witness had been produced to show the terroi;ism that 174 STRIKES AS CONSPIRACIES. [§ 7. had been exercised over them. There was not even a suggestion of loss of custom. After all, what did it amount to ? These persons, being desirous of bring- ing their employers to a discussion of their griev- ances, had done that which they had a perfect right to do, and that which was within the bounds of the law. What was law for one class was law for another, and if the workmen had a right to combine, so had the masters. The masters had exercised their right, and with far greater cruelty than anything that could be done by the workmen. They had adopted the sys- tem of the 'lock-out,' and had turned upqn the streets the whole of their workmen, which meant the reduc- ing by starvation of hundreds of women and children, and spreading a wide-wasting calamity over the whole trades. The masters had a perfect right to reduce the number of their workpeople, and the workmen had a right to combine to make the most of their labor, so long as they did not coerce or intimidate them. If they only endeavored to bring their fellow-workmen to their views, and to get the masters to discuss the terms, they had a perfect right to combine, and they could not be indicted for conspiracy unless they over- stepped the well-defined bounds of the law." "Bramwell, B., to the jury. — A great number of irrelevant topics had been introduced into the inquiry in which they were engaged. All the talk they heard about the struggle of capital against labor was quite misplaced, and the censure passed on the masters in respect to the lockout was perfectly id}e. The men had a perfect right to strike, and if the whole body of the men struck against the masters, why should not the whole body of masters strike against the men.? The jury had heard a good deal about the power of the State, but the power of the State was no § 7.] MODERN DOCTEINE. 175 more brought against these men than it was used in their favor. The question was whether they were guilty of the particular offense with which they were charged. The jury had to consider — no matter whose interests might be affected — whether the defendants had done that which was illegal. He would address a few general observations to them, some of which might appear to be truisms. When the law gave, or rather acknowledged, a right, it provided a punish- ment or remedy for the violation of that right. That was a cardinal rule, and an obvious one. The old expression that ' there was no wrong without a remedy ' might also be interpreted to mean that there was also no right without a remedy. Sometimes the remedy was by a criminal proceeding, sometimes by a civil action, and sometimes by both. Having made those general remarks, he would make another, which was also familiar to all Englishmen — namely, that there was no right in this country under our laws so sacred as the right of personal liberty. No right of property or capital, about which there had been so much declamation, was so sacred or so carefully guarded by the law of this land as that of personal liberty. They were quite aware of the pains taken by the common law, by the writ, as it was called, of habeas corpus, and supplemented by statute, to secure to every man his personal freedom — that he should not be put in prison without lawful cause and that if he was, he should be brought before a competent magis- strate within a given time and be set at liberty or undergo punishment. But that liberty was not liberty of the body only. It was also a liberty of the mind and will; and the liberty of a man's mind and will, to say how he should bestow himself and his means, his talents, and his industry, was as much a 1Y6 STRIKES AS CONSPIRACIES. [§ 7. subject of the law's protection as was that of his body. Grenerally speaking, the way in which people had endeavored to control the operation of the minds of men was putting restraints on their bodies, and therefore we had not so many instances in which the liberty of the mind was vindicated as was that of the body. Still, if any set of men agree among themselves to coerce that liberty of mind and thought by compul- sion and restraint, they would be guilty of a criminal offense, namely, that of conspiring against the liberty of mind and freedom of will of those towards whom they so conducted themselves. He was referring to coercion or f-ompulsion — something that was unpleasant and annoying to the mind operated upon ; and he laid it down as clear and undoubted law that if two or more persons agreed that they would by such means co- operate together against that liberty they would be guilty of an indictable offense. The public had an interest in the way in which a man disposed of his industry and his capital; and if two or more persons conspired by threats, intimidation, or molestation to deter or influence him in the way in which he should employ his industry, his talents, or his capital, they would be guilty of a criminal offense. That was the common. law of the land, and it had been in Ms opinion re-enacted by an act of Parliament, passed mj the 6th year of the reign of George IV., which provided in effect that any person who should by threats, intimi- dation, molestation, or any other way, obstruct, force, or endeavor to force, any journeyman to depart from his hiring, or prevent any journeyman from hiring, should be guilty of an offense. That act was passed forty-one years ago, and by a statute of 1869 it was enacted that no workman merely by reason of endea- voring peaceably and in a reasonable manner, and § 7.] MODERN DOCTRINE. 177 without threat or intimidation, direct or indirect, to persuade others from working or ceasing to work should be guilty of an offense under the former act of Parliament. In other words, the second act said that should not be so if they did what they did in a reasonable and peaceful manner for the purpose of persuasion. Now, the defendants were indicted for conspiring together to do that which was in opposition to the law and the statutes he had described. At the outset, lie could not help remarking that the learned and eminent counsel who had addressed the jury for the defendants had all said that they did not deny that their clients, Druitt, Adamson and Lawrence, had agreed that there should be pickets. He was of opinion that if picketing could be done in a way which excited no reasonable alarm, or did not coerce or annoy those who were the subjects of it, it would be no offense in law. It was perfectly lawful to endeavor to persuade persons who had not hitherto acted with them to do so, provided that persuasion did not take the shape of compulsion or coercion. What was the object of this picketing ? Was it that the names and addresses of the non-striking workmen might be found out, with the view to their being addressed by reason- able argument and persuasion; or was it for the purpose of coercion and intimidation ? Even the jury should be of opinion that the picket did nothing more than his duty as a picket, and if that duty did not extend to abusive language and gestures such as had been described, still, if that was calculated to have a deterring effect on the minds of ordinary persons by exposing them to have their motions watched, and to encounter black looks, that would not be permitted by the law of the land. The probabilities were that it was known to the leading members of the association 178 STRIKES AS CONSPIRACIES. [§ 7. what the pickets were doing. It was in evidence' that Druitt had visited the pickets from time to time. It would be very strange indeed if, while everybody else knew what they were doing, those who set the pickets to work should be the only persons who did not know what they were doing. There was very little doubt that Adamson, Lawrence and Druitt, had authorized by means of the resolution, the system of picketing. If the jury were satisfied that this system, though not carried beyond watching and observation, was still so serious a molestation and obstruction as to have an effect upon the minds of the work-people, then they ought to find these three men guilty. If they thought that the conduct of these men conduced to this effect, and that they knew it, then also they ought to find them guilty. If, upon the other hand, the jury should be of opinion that Adamson, Lawrence and Druitt, did not know what the pickets did, or that what the pickets did was not the natural consequences of nien placed in such a situation, then they ought to be acquitted. So much with regard to three of the prisoners. With reference to the other five, if the jury believe the evidence of Lambert, then these five ought to be found guilty. It was said that the whole of the prisoners in acting as they had acted supposed themselves to be doing what was right. That might be so, but even supposing it to be true, they were still subject to the law." The jury found Adamson, Lawrence and Druitt guilty, with a recommendation to mercy, and acquitted the rest. 13. Intimidation to compel employer to discharge an employe. Shelbonrne v. Oliver. ^ " This was a case IShelbourne v. Oliver, 13 Law Times Rep. (N. S.) 630 (1866). § v.] MODERN DOCTRINE. 179 stated under the 20 and 21 Vict. c. 43 upon a decision of justices at Nottingham, convicting the appellant under 6 Greo. 4. c. 129, §. 3, for having on the 10th July, 1865 ,at Basf ord, unlawfully by threats endeavored to force George Oliver to linii# the description of his journeymen and workmen. It appears that the respon- dent carried on the business of a bleacher and trimmer, at Basford, and employed more than one hundred work-people; that Benjamin Samuel Oliver was the acting tnanager of the works, with power to employ and discharge workmen, and that a man named James was employed by Oliver as a journeyman; that the appellant was not in the employment of Oliver, but was in the service of another bleacher and trimmer in the neighborhood, and that he was a member and acted as vice president of a trades union society at Basford ; that demands had been made by the men employed in different bleaching yards for an advance of wages, which demands were resisted by the masters, and that striking had taken place in some of such yards, and in Oliver's yard amongst others ; that, after Oliver's yard had strilck, James worked for a short period to finish some orders specially required to be finished, and subsequently to this Oliver agreed upon certain terms with his workmen, and some of those men came back to work, and found James at work, the men immediately gave over work, and, in answer to an inquiry by Oliver why they did so, a deputation from the society (of which deputation the appellant was one) wei^t to Oliver's works and saw the manager, B. S. Oliver; that the appellant was the spokesman, and said to B. S. Oliver, 'We've come about James : we shall not allow James to work;' that B. S. Oliver replied, ' It is a very hard case ; James was the only man who stayed to help me with the 180 STRIKES AS CONSPIRACIES. [§ 7. special orders in hand;' that the appellant said, ' Well, its of no use ; we have made up our minds ; he shall not work ; he's a scoundrel ; unless you discharge him your men shall not be allowed to work;' that B. S. Oliver said, 'If I 'be compelled to do it, I must discharge him ; ' that in consequence of what passed above, James, who was then at work, was immediately dismissed, and the next day Oliver's men returned to work, James being discharged as above; that counter- evidence was given on behalf of the appellant but the justices found the facts as above set out." Chief Justice Cockburn, in reply to the statement of appellant's counsel that the facts did not bring the case within the statute, for that all appellant did was to remonstrate with the respondent, said, " This is not the exercising of a man's right to refuse to work, but it is the coming forward of a man who says, 'your men shall not work if a particular person is employed.' " The counsel said, " there is no endeavoring to limit the number or description of the workmen as contem- plated by the statute." Cockburn, C. J.—" That is not so. He says in effect that, notwithstanding this man has well served you, and you are satisfied with him, yet we will not permit others to work for you unless you discharge him. I think this quite a case within the act." Blackburn, J. — " I think the case is quite clear, and as governed by the previous one of Walsby v. Anley." Conviction aflSrmed. 14. Intimidation by Threats to Force a Master to Alter the Description of his Workmen. Skinner t Kitch.i — "At a petty sessions for Bridgewater, held on the 26th of November, 1866, on the information of 1 Skinner zi. Kitch, lo Cox C. C. 493 (1867). § 7.J MODERN DOCTRINE. 181 William Kitcli, the respondent, against Thomas Skin- ner, the appellant, under the 6 Greo. 4, c. 129, § 3, charging that he did on the 22d of October, 1866, at Bridgewater, unlawfully by threats endeavor to force the said respondent, who was then and there carrying on his business as a builder, to limit the description of his workmen, was heard and determined, and upon such hearing the said appellant was duly convicted of the said offense and sentenced to one month's impris- onment. "The appellant required a case to be stated for the opinion of this court, whereupon it stated as follows : "At the hearing it was proved on the part of the informant (the respondent) that he was a builder, residing in the said borough of Bridgewater. That on the 22d of October he had a man named James Jordan, a carpenter, in his employ, who had been with him for six years. He had also in his employ five other men as carpenters and joiners (naming them) who were all members of the Greneral Union of Car- penters and Joiners. Jordan was not a member of the union. "On the 22d October the appellant called at the respondent's house, and gave him personally a written notice in an envelope, of which the following is a copy : ' Tryen-street, Bridgewater. Sir — I am requested by the committee of carpenters and joiners to give the men in your employ notice to come out on strike against James Jordan, unless he become a member of the above society, not being any way disrespectful to you or him, but being compelled by the union and laws. This notice will be carried out after the 27th inst., unless settled in accordance with the society's laws. I remain Yours, most respectfully, Mr. William Kitch. Thomas Skinner, Secretary.' 182 STRIKES AS CONSPIRACIES, ' [§ 7. " On the 23d of October, Moore, Watling and Lutley called on the respondent and produced a notice that they had received in the same hand writing as that of the notice the respondent had received from the appel- lant, and purporting to bear his signature. There was no direct proof that either of these notices was in the handwriting of the appellant. The respondent's week ends on a Friday,, when he pays his workmen. The Friday following the receipt of the notice fell on the , 26th of October. On that day Moore, Watling and Brogg were at the respondent's house to be paid their wages. "A conversation took place relating to the notice. The men left and came again the next morning. The respondent had another conversation with thein, and they picked up their tools and left work. It is not at the respondent's wish that they left him. Oaten was working at Wedmore that week. He returned on Sat- urday, the 27th, and the respondent saw him on the Monday morning, and had a conversation with him. He ceased worsting for the day, and ceased being a member of the society, and he is now working for the respondent. Up to the time when the respondent received the notice from the appellant he had heard nothing respecting Jordan from any other person. It was also proved that the appellant was the secretary of the local lodge — a society — and that he caused to be printed a notice, of which the following is a copy; ^Notice. — Men are requested not to go to Mr. Kitch's shop, because there is a strike there : " and which notice came into the hands of the respondent on the 27th of October, and it was also proved that the appellant caused the following document to be printed and circulated. 'To members of General Union, ' We, the members of the Bridgewater Lodge, do § 7.] MODERN DOCTRINE. 183 under very pressing circumstances, appeal to the union for assistance to battle a magisterial action which has been entered against us by Kitch and Sons, builders, of this town, the cause of which is as follows; Five of our members have for some time past been working for Messrs. Kitch, there also being a non- society man there who was the sole cause of the form- ing of our lodge ; the men's object being to get him to join us, they expressed their opinion to the committee that they could not work with him any longer unless he became a member. They came out against him. Kitch being determined to stand by the non-society man has entered an action against us, and has been to the rest of our employers to induce them . not to employ those men who had left him, and is instituting every possible means to monopolize and obstruct our lodge and interest. ' Trusting to the assistance of our fellow-members for a little support, having no claim for this case on the funds of the union, and prosecution taking place next week, we hope to have an early and favorable answer," (signed on behalf of Bridgewater Lodge) Thomas Skinner, Secretary, Tryen Street, Bridgewater, to whom please address all communications; and P. 0. 0. made payable to Henry Moore, Albert Street." * * * " We, however, being satisfied that the appellant did perfectly well know the nature and contents of the notice at the time he handed it to the respondent, and being also of opinion that such notice was intended to operate as a threat to the respondent that if he did not dismiss Jordan, or induce him to join the society, all other workmen who were society men would leave him, to his great inconvenience, gave our determin- ation against the appellant in the manner before stated. " The question of law arising on the above state- ments therefore is, whether the threat of the appel- 184 STRIKES AS CONSPIRACIES. [§ 7. lant that the respondent should lose the services of nearly all his workmen unless he dismissed from his employ the non-society man or induce him to join the society, was a threat within the meaning of the 3rd section of the said act?" Blackburn, J., said, " When one comes to look at the Act of Parliament, there can be no doubt that the conviction was right. The preamble, after reciting the repeal of the combination laws, and the object of those laws, and that they had not been found effectual, says: 'That whereas such combinations are injurious to trade and commerce, dangerous to the tranquility of the country, and especially prejudicial to the interests of all who are concerned in them ; and whereas it is expedient to make further provision as well for the security and personal freedom of indi- vidual workmen in the disposal of their skill and labor, as for the security of the property and persons of masters and employes, and for that purpose to repeal the said act, and to enact other provisions and regulations in lieu thereof.' It then repeals the act, and then come the provisions of the enactment instead thereof ; and the first part of section 3 is directed to persons ' who by threats endeavor to force other workmen to leave work and not to return to their work, or to prevent their hiring themselves, or accepting work, or who force or induce any persons to belong to an association or to contribute to a common fund.' ' And then the section proceeds to protect the masters. ' Or if any person shall by threats or intimi- dation, or by molesting or in any way obstructing another, force or endeavor to force any manufacturer or person carrying on a trade or business to make any alteration in his mode of regulating, managing, con- ducting, or carrying on such Manufacture, trade or § 7.] MODERN DOCTRINE. 186 business, or to limit the number of his apprentices, or the number or description of his journeymen, work- men, or servants, every person so offending, or aiding, abetting or assisting therein, shall be subject to imprisonment.' Now, one object of the section is plainly to protect the masters, as in the previous part the Legislature endeavored to protect the workmen. In the second part, I think the great object the Legislature had in view was to protect the masters where it was sought to compel them to limit the description of the workmen they employed to union men ; and probably that was the principal object. I certainly think that it is within the words of the act, and plainly within the spirit. It is impossible to read these two clauses without seeing that it is a very bene- ficial provision, for a greater piece of tyranny than to insist that a master shall have his work stopped unless he consent to punish men who are his journey- men for refusing to belong to a union cannot well be. This case seems to have been twice decided already ; and if these cases had not been decided, I should not have the slightest hesitation in deciding so for the first time. The case of Walsby v. Anley is one ; and the case of Shelbourne v. Oliver (Supra) is the second, and they do not induce me to come to the decision I should have come to without them." Shee and Lush, J. J. concurred in the above opinion. 14. Peaceable persuasion not unlawful. Iteg. v. Shep- herd. ^ "On an indictment under 6 Geo. 4, c. 129, § 3, for conspiracy to force workmen to leave their employ- ment, the evidence being that the defendants merely waited outside the place where the workmen were employed, and tried to induce them not to work 1 Reg. v. Shepherd, ii Cox C. C. 325 (1869). 186 STRIKES AS CONSPIRACIES. [§ V. there, and that their conduct was civil and peaceable. Held, that the question was whether they had endeavored to control the free action or overcome the free will of the workmen by force or intimidation. If there had been merely persuasion, no matter what the consequence of it was, peaceably and unaccom- panied by menace or violence, this would not render the defendants amenable to criminal justice on such a charge, they being protected by 22 Vict. c. 34. The prosecutor carried on business as a manufac- turer of shoes, and employed 120 men. Some of his work-people were in the habit of taking materials, and making the goods at their own homes. In Nov- ember, a misunderstanding arose respecting prices of labor, and a number of persons left his service. They gave no decided reason why they left, but simply returned their work, some of them bringing it back in a finished and others in an unfinished condition. Lush, J. said " if the defendants had known the addresses of the men they might have gone round to them to persuade them from working, and this would have been perfectly legal. The question in the case was, whether they had done wrong by waiting for them in the street ? To bring them within the terms of the act of 22 Vict., there must have been threats or molestations otherwise than by endeavoring peaceably and in a reasonable manner to persuade others to cease or abstain from work. In a similar case tried before him at Leeds, he remembered telling the jury that the defendants had a perfect right to persuade, and that in order to do so they must have access to the persons whom they wished to persuade. If they did that in a peaceable manner, their conduct would be lawful. In the case cited the parties charged were guilty of conduct such as any reasonable person § 7.] MODEKN DOCTRINE. 187 woald call intimidation. They abused their fellow workmen, shouted and hooted at them, and were ■otherwise violent in their conduct. He agreed entirely -with what Baron Bramwell had said ; but the question was whether it applied to the present case. It was very important that they should be settled in regard to these matters. The better way would be to take the opinion of the jury on the case, and reserve the ques- tion for the Court of Criminal Appeal. In summing up, the learned judge said the defendants were charged with conspiring together to do an unlawful act. The a.ct stated that if violence was used, either to persons or property, or threats, intimidation, molestation or obstruction then the persons offending brought them- selves within the terms of the law. In this case the ques- tion which they would have to decide was, whether the defendants did endeavor to control the free agency, or overcome the free will of their fellow workmen by force or intimidation ; and if so they would be guilty of the offense imptited to them ; but if there had been merely persuasion no matter what the consequences were then it would not be at all an unlawful act." ^ 15. Intimidation and Coercion under act of 1871. Reg. v. Hibbert.^ The defendants were indicted for "wickedly and unjustly devising, contriving and intending to injure and aggrieve the prosecutors ; and I22 Vict. c. 34, referred to in the above case is as follows: — "No •workman or other person, by reason merely of his entering into an agreement with workmen , or by reason merely of his endeavoring peaceably, and in a reasonable manner, and without threat or intimi- dation, direct or indirect, to persuade others to cease or abstain from work, shall be deemed or taken to be guilty of ' molestation ' or 'obstruction' within the meaning of the said act of 6 Geo. 4." It would seem from the above opinion that "molestation" and " obstruction " are synonymous with intimidation. SReg. e. Hibbert, 13 Cox, C.'C, 82 (1875). 188 'strikes as CONSPIKAOIES. [§ 7. to obstruct them in the pursuit of their lawful calling and business, unlawfully did, on the 13th day of November, A. D. 1874, within the jurisdiction of the Central Criminal Court, conspire, &c., to molest and obstruct the prosecutors, they being master cabinet makers and furniture manufacturers, in their lawful calling, by watching and besetting the house where the said prosecutors carried on business, situate, &c.; with a view to coerce the prosecutors to dismiss and cease to employ divers workmen, to-wit, &c., against the form of the statute, &c." The other count stated that the defendants unlawfully, &c., contriving and intending to injure and aggrieve the workmen then being employed by the prosecutors, and to obstruct them in the pursuit of their lawful calling, unlawfully, &c., did conspire, &c., to molest and obstruct [here names of workmen given] and •other workmen in their lawful calling, by watching and besetting the house and place of business, situate, &c., wherein the prosecutors then carried on their business, and where the said workmen then happened to be, with a view to coerce the said [names] and other work- men, and to induce them to quit their said employment." Cleasby, B. — "Conspiracy is an important branch of the criminal law, and may have for its object an injury to the State, when it becomes high treason, or an injury to some particular individual. It differs from other charges in this respect, tliat in other charges the intention to do a criminal act is not a crime of itself until somethiug is done amounting to the doing or attempting to do some act to carry out that intention.' Conspiracy, however, consists simply in the agreement or confederacy to do some act, no matter whether it is done or not. We very often get facts sufficient to establish the guilt of parties- § 7.] MODERN DOCTRINE. 189 to a conspiracy other than acts which have been done in pursuance of it. For example, there may be a conspiracy to set fire to London at different places at once, and that conspiracy may be fully proved though no part of London has in fact been set on fire, inas- much as the crime of conspiracy consists only as I have already said, in the agreement or confederacy to do something. That particular branch of conspiracy affecting the relations of employers and employed has attracted a great deal of attention, and the legislature has passed numerous acts of Parliament upon the subject which have been productive of a great deal of diflBculty. There is now however, a very valuable report which embraces this subject amongst others, in which the difficulties arising from the imperfect nature of the legislature have be'en recognized; and the present state of the criminal law in this respect has been fully explained by the Lord Chief Justice, the Becorder of London, and other learned judges. In this case, I am happy to say, we escape many of these difficulties, and the question at issue depends on the Criminal Law Amendment Act, 1871. It brings before you, gentlemen of the jury, matters of fact which you will have to consider, questions of law which it will be for me to decide. That Act makes it an offense to molest and obstruct any person with a view to coerce him, if a workman, to quit his employment, or if a master, to alter his mode of carrying on business ; but the meaning of the words molestation or obstruction is not left for you or me to consider, for it is defined in the act itself to be the persistent following a workman about from place to place, or the hiding of a work- man's tools. ^ It is also a molestation or obstruction 1 Hiding a workman's tools is called "rattening." Black's Law Dictiojnary. 190 STRIKES AS CONSPIRACIES. [§ 7~ to watch or beset the house or other place where such person resides, or works, or carries on business, or happens to be, or the approach to such house or place, or if with two or more other persons he follows such person in a disorderly manner in or through any street or road, It will therefore be for you to consider whether it has been made out to your satisfac- •»tion that the defendants watched and beset the premises of Messrs. Jackson and Grraham: or the approaches thereto, with a view to coerce them, the employers, to alter their mode of carrying on their business, or their workmen to quit their employment. The two ques- tions therefore, which you will have to answer will be first, was there a molestation by watching and besetting the premises in question or the approaches thereto; secondly, was the molestation effected in such a manner and under such circumstances that you are satisfied that the intention of the defendants was by such molesta- tion to coerce the masters to alter their mode of doing business, or the workmen to quit their employment. It has been contended on behalf of the defendants that the prosecution has not satisfactorily established the intention of the defendants to coerce. This is' not a point upon which I can reserve a case, as I think it is your duty to determine where persuasion ends and coercion begins. Coercion might either be effected by physical force [or] by the operation of fear upon the- mind. It is possible that there might be such a molestation by watching and besetting premises as might be expected to and would operate upon the mind so as to take away the liberty of will, by giving rise to a fear of violence by threats or to some apprehension of loss or ruin, or to feelings of annoy- ance. Picketing, that is the watching and speaking to the workmen, as they come and go from their 6mploy- § 7.] MODERN DOCTRINE. 191 ment, to induce them to leave their service, is not necessarily unlawful ; nor is it unlawful to use terms of persuasion towards them to accomplish that object; but if the watching and besetting is carried on to such a length and to such an extent that it occasions a dread of loss, it would be unlawful. For instance, suppose it is proved that there was a confederacy, which rendered it impossible for the employers to continue their business from the want of workmen and men seeking employment from them, this would be an indictable offense. In conclusion, it lies upon the prosecution to show to your satisfaction that the watch- ing and besetting spoken of in the present case [wasj done in such a manner and under such circumstances from which you can reasonably conclude that the defendants intended to coerce Messrs. Jackson and Grraham to alter their mode of carrying on business; if this is done you will find the defendants guilty. On the other hand, if you find that there was merely a combination on the part of the workmen, and a struggle as to whether they or their employers should hold out the longest, then you will acquit the defendants of this charge." Verdict of guilty against all the defendants. The court remarked that he concurred in the verdict. 16. Conspiracy — Intimidation — Picketing .under Act of 1875. Keg. v. Bauld.^ — The indictment in substance charged the defendants with having unlawfully con- spired together by means of violencfe and intimidation and divers other unlawful meajis, and by watching and besetting the premises of Messrs. Baston & Anderson, engineers, of Brith and Southwark, and the approaches thereto, to compel divers workmen then employed by 1 Reg. V. Bauld, 13 Oox C. C. 282 (1876). 192 STRIKES AS CONSPIRACIES. [§7. Messrs. Baston & Anderson, or wlio might thereafter be willing to offer themselves for employment, to quit their employment and abstain from working or offer- ing themselves for work to the said firm. Thtee were also counts charging the defendants with conspiring together by watching and besetting the premises of Messrs. Easton & Anderson to endeavor to compel Messrs. Baston & Anderson to alter the mode of car- rying on their business, and to pay by time and not by piece. In reply to the remark from counsel for the defend- ants that, " If it were merely done for the purpose of persuading the men to quit their employment it would not be illegal," — Huddleston, B., said : " I cannot assent to that view of the law. The statute allows watching or attending near a place for the purpose of obtaining or communi- cating information, but this is the only exception." There was an application on behalf of the defendants for a postponement, which was resisted by the Crown. •Huddleston, B. — "I believe there are a great many persons who are interested in this question, and that there is a very great desire on the part of all parties interested to keep within the pale of the law. I be- lieve this to be a feeling common to both masters and men. I think the men are very often found to be anxious to keep within the pale of the law. They think they have certain rights, and undoubtedly they have certain rights. Independently of the law passed last session there has in recent years been a great change in the law of conspiracy and the whole of the law relating to trade combinations has undergone a very great change indeed. The act passed last year prevents any person being indicted for a conspiracy except in particular cases, that is to say, any act in § v.] MODERN DOCTRINE. 193 contemplation or furtherance of a trade dispute be- tween employer and workmen shall not be indicted as a conspiracy, unless it is an act which if committed by one person, could be pup.ished as a crime, and the statute then defines what a crime is. The statute then goes on to declare what persons are not permitted to do. They have no right to compel any other person to abstain from doing any act which they have a legal right to do, a,nd for that purpose to watch or beset the house or other place where such person or persons reside. Now on this rests the great question of pick- eting. No doubt the men are in the habit of taking an erroneous view of what they may be permitted to do in the shape of picketing; and it is a very serious question no donbt. They have no right to watch or beset the house or other place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, for the purpose of compelling any person to abstain from doing that which he has a legal right to do. Then, although the act says watching and besetting shall not be per- mitted for the purpose of compelling persons in such cases, there is the other side of the question, which is this, where the men watch merely to obtain or com- municate information. The meaning of that is this : When the men combine, as they have a perfect right to do, they may say, ' we won't work except for cer- tain wages ; we won't work except upon certain terms ;' and they have a right to agree together for this pur- pose; but, there may be amongst their number some persons disposed to enter into an arrangement to receive money from the funds raised 'for the purposes of supporting the strike and then to go to work and also get wages from the masters at the same time. This would certainly be a hardship of which the men might 194 STRIKES AS CONSPIRACIES. [§ 7. complain ; and, therefore, the legislature enacted that if their watching and besetting was only for the pur- pose of watching and besetting their own men who should so act, it is not a watching within the meaning of the act of Parliament. But this watching and besetting is a very serious offense unless it is confined to merely obtaining and communicating information, and this cannot be too well known. I must consider the application made to me by the men for the post- ponement of this trial. I understand them to say that they received no information of the seventeen new witnesses to be called until last Monday, or of the new counts in the indictment." * * * "The law of conspiracy with reference to differences between masters and men has undergone a very great alter- ation, and the men know perfectly well that the legislature met them in the most perfectly honest manner, and invited their assistance in considering what should be law on this subject, and the act of Parliament passed last session was the result of anx- ious deliberation on the part of all parties, no matter to which political .party they belonged, and in that deliberation they were assisted by those able representa- tives of the workingmen who habitually advocate their cause in Parliament, and also by delegates from their own body, and this deliberation led those who pre- pared the bill to frame it so that the men might understand the length to which they would be justified in going in support of what they felt to be their rights. I am one of those who held that the men had very good grounds to urge some alteration in the statute law as it had existed, and I may say that a milder and fairer exposition of the law never was made than ap- peal's in the statute under which this indictment is framed. And I would invite the men in their own § Y.] MODERN DOCTRINE. 195 interests to consider liow much the legislature lias done for tliem, and if they themselves feel that by their own acts, they have gone beyond the law which they themselves assisted in making, to do what, I may say, they are bound to do, admit it frankly, and place themselves under the law as men who are ready to accept the consequences of that act. If on the other hand they fail to recognize any error and hesitate to admit it, and claim to be justified in the course they have adopted, they should be ready with the very able legal assistance they possess, to have this matter fully investigated, and for my own part I will give it my best consideration, and the jury and myself will try it out with the greatest care. But I cannot accede to the application for the postponement which has been made to me." Part of the defendants pleaded guilty and part not guilty. * '■■ * Huddleston, B. — " The learned counsel for the prosecution having very properly stated that, looking at the evidence, he does not feel justified in saying that your acts so connect you with the acts of the other men as to make it apparent that you were part of the combination with which the other men were charged, I must say that to me personally it gives a great deal of pain to see respectable men standing in the position of criminals, and I do hope, from the frank manner in which they have acknowl- edged their having trespassed beyond the bounds o| the law, there is an indication, as far as they are con- cerned, not only not again to do it themselves, but to do more, to use that influence wliich, as men of intelli- gence, they possess over others, and prevent them from doing the same thing. The men should know this, that the law is now perfectly fair and equal as 196 STRIKES AS CONSPIRACIES. [§ 7. between them and the masters. I remember the time when a breach of contract was only a question of civil remedy as far as the master was concerned ; but if the men broke their contract, they might be visited with imprisonment for three months, and were not allowed to give evidence in their own behalf. That was the law; but this act of Parliament, as I have already pointed out, is an act of Parliament which has under- gone the greatest consideration. There was a com- mission granted in 1870 to consider the subject, and in consequence some of the most objectionable parts of the previous law were done away with. A subse- quent statute was passed, and of this statute the men rightly or wrongly felt they had a ground of complaint and the Legislature heard their complaint, and they recognized the right the men had to some alteration in legislation, and the act of last session was passed. I have had some experience in a recent case of this kind, tried at Nottingham, in which many of ' the men felt, and the principal persons amongst the men got them to fully recognize, in a manly and frank manner, the great desire on the part of the Legislature to consider the real grievances of the men. - Now, what I understand to be the dispute between you and the masters is this, that the masters want certain work to be done by piecework, and certain hours, and you say — Parry, Serjt. — "There is no dispute as to the hours my Lord." Huddleston, B. — "Well it does not signify. The masters have a perfect right to say that, and the men have a perfect right to say, ' We won't do piecework,' and the law recognizes that every man has a right to be protected in that which he has a legal right to do, and which he has a right to abstain from doing, anything § 7.] MODERN DOCTRINE. 197 that is not an improper act. The master has the right to say, ' 1 will not pay only such and such wages, and I require you to work certain hours and if you choose to accept it you may.' The men have a perfect right to say, ' No ; we do not intend to work for such wages and for so long a time.' The masters have the right to give what they think fit, and the men have a right to agree amongst themselves what they will take. But while the law secures to them that right it impera- tively prevents all from exercising tyranny over others, and while you may choose the arrangement of your own hours and terms, you have not a right to combine for the purpose of imposing. upon others a restriction from wMch you claim to be exempt. And the same thing applies to the masters. A master has no right to take proceedings to require other masters to adopt his views ; that is a legal offense. And the men have no right to prevent others doing what they think right, or doing what they themselves would wish, and it is for this purpose the law prescribes exactly what must be done. You have a perfect right to advocate your own views by argument and reason- ing, but the law says you must not do this : ' You must not compel any person to abstain from doing any act which is not an act that he has no right to do.' The law also says you must not do this. You must not use violence or intimidation either to man, or his wife, or his children, and you must not injure his property. You must not persistently follow any per- son about from place to place. This being very much like picketing, in your own interest I would urge upon you that picketing is a most dangerous course to adopt. You must not persistently follow a man. You must not in short ' dodge ' a man from place to place so as to interfere with his personal liberty to do 198 STRIKES AS CONSPIRACIES. [§ 7. what he likes. You must not hide his tools, or his cloths or any property owned or used by him, or deprive or hinder him of the use of them. All this is reasonable enough. You must not watch or beset his house, or his works, or their approaches. Now when this act of Parliament was under consideration, the men, through their delegates, urged upon the govern- ment then passing it that instances might arise where men might lawfully ' watch and beset,' and a proviso was introduced into this act which says, ' Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach t© such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.' And this means no doubt that occa- sionally you may, in differences of this kind, find some who would, so to speak, be 'traitors' to you who, while getting their share of the money raised for the sup- port of those on strike, go and work as well and thus get money from both sides. You would, of course, wish to discover such men. But it must be a 'watch- ing and besetting ' for some such lawful purpose to be within the meaning of the act. You will, however, see how diificult and dangerous it is in your effort not to do what is wrong, and to guard against the abuse of the practice. If you wish by your own conduct to assert your rights to 'picket,' you are almost certain to get into difficulty; for, whatever you may intend, there will be some among you who will go beyond what is intended as ' watching and besetting ' within the exemption of the act. This picketing in which you have been engaged is illegal. Your own advocate declares it to be so and it is so declared by the act of Parliament. I know perfectly well that it is said you § 7.] MODERN DOCTRINE. 199 did not intend to go beyond the act, and I believe you did not, and tliat yon did not intend to do that wliicli is criminal. You must feel, and anyone who has looked at the depositions must feel, that there can be no doubt but that some of you at least have gone far beyond the law, and it is manly of you to acknowledge it. You have broken the law, and you are charged with a conspiracy. The law of con- spiracy was not clearly understood, but this act of Parliament defined it and said that a combination by two or more persons to do an act which if done by one would be a crime is a criminal conspiracy. That is to say, you may agree between yourselves to take certain wages and to do certain work, but unless you agree to do some act, which act in itself is a crime, it is not a conspiracy. But if you agree together to usb vio- lence to compel a person to do something he is not obliged to do, you combine to do an act which is for- bidden by the law and it is an illegal conspiracy. It would be a most painful thing for the respectable men I see here to be put in Canterbury Jail with all kinds of criminals for several months. Now, do let me point out to you that, while on the one hand you have gone beyond the law and very properly acknowledged your error, you must recognize the rights of others to do that which they recognize and think right. And let me say that, while I readily accede to the course sug- gested, that you enter into your own recognizances to come up to receive judgment when caljed upon to do so, I require it to be distinctly understood that all the proceedings which have given rise to this trial are to cease. You will only be called up to receive judgment if you violate the law, in which case you cannot ex- pect any consideration so to be held out to you. If you violate the law you are liable to be called up and 200 STRIKES AS CONSPIRACIES. [§ 7. sentenced at any time. I have no doubt that you mean to abide fairly by what you have undertaken and to obey the law. Having regard generally to picketing and striking, depend upon it there are other and better means by which differences between capital and labor may be adjusted." 17. Conspiracy— Molestation— Criminal Law Amend- ment Act 34 and 35 Tictory, c. 32 Reg. v. Bunn.i The defendants, servants of a gas company under contract of service, being offended by the dismissal of a fellow servant, agreed together ' to quit the service of their employers, without notice and in breach of their i contracts of service, by reason of which the company were seriously impeded in the conduct of their business. Being indicted for a conspiracy, it was contended that the statute 34 and 35 Victoria, c. 32, having determined .that no act shall be illegal merely by reason of its being in restraint of trade, and having also defined the offense of "obstructing" or "molest- ing" and otherwise determined what shall be deemed to be offenses as between masters and servants, had virtually declared all other acts not to be punishable. But held, that the provisions of the statute had not affected the common law of conspiracy, for which an indictment would lie. The questions submitted to the jury were as follows : First. Did the defendants agree together to force the company against its will to employ a man it objected to employ ? Second. If so, was this sought to be done by improper threats or molestation ? Third. Molestation being anything done with improper intent, to the unjustifiable annoyance and IReg. «. Bunn, et al, 12 Cox, C. C. 316 (1872). § Y.] ilODERN DOCTRINE. 201 interference with tlie master in the conduct of his business, and such as would be likely to have a deter- ring effect on a man of ordinary nerve — was a quitting of the employ without notice, and breaking of the contract of service, to the undoubtedly serious injury of the master, a molestation within the above meaning of the term ? Fourth. Did the defendants agree together to force their employer to do what they desired by such a molestation? Fifth. Did the defendants endeavor to enforce their object by simultaneously breaking their contracts of service ? A conspiracy may be to do an unlawful act, or to do a lawful act by unlawful means. If the jury deemed the object lawful, they would further say if the means employed were lawful or unlawful. Brett, J., in summing up to the jury said : " The defendants are charged with having entered into a criminal conspiracy. It has been stated to you that the result of that conspiracy might have been, if not otherwise prevented, supposing it to have been suc- cessful, mosfr lamentable to the public. And it has been stated to you on the other side, that even though that may be so, you ought not [to] allow yourselves, in finding a verdict of guilty or not guilty, to be influenced by any such consideration. I entirely agree with the latter part of that observation. You must not allow yourselves to be influenced in coming tc^a conclusion whether these defendants are guilty or not by the view that from there being an agreement between the defendants to cease work it would have had a most lamentable effect upon the city and the public. I entirely agree that so far as these men were the servants of the gas company, they had no obligation 202 STRIKES AS CONSPIRACIES. [§ 7. whatever with regard to the public; that they had no greater obligation to the public than anybody else had, than any of us. They had entered into no agreement with the public; the public paid them nothing for their labor, and they were under no further obligation to the public than any other of the Queen's subjects. The question which you will have to determine is whether, as servants of the gas com- pany, they or some of them have been guilty of a criminal conspiracy. In order to come to that con- clusion, you must answer in the affirmative or negative the questions which I shall ask you. If you answer them in one way the defendants are guilty and it will be your duty to say that they are guilty. But if you answer them in another way it will be your duty to say they are not guilty. The definition of a con- spiracy generally is this : If persons agree together to do some unlawful thing, and proceed to do it, they are guilty of conspiracy; or if they agree to do a lawful thing by unlawful tneans, and proceed to carry out their agreement by those 7>ieans they are guilty of a conspiracy. I say if they proceed to carry out, (for it signifies not whether they do carry them out), they are guilty of conspiracy. Therefore, a conspiracy consists of an agreement between two or more persons — an agreement, observe — to do an unlawful thing> or an agreement to do that which is lawful by unlaw- ful means. For instance, if two persons were to agree that one or both of them should shoot another, that would be clearly doing an unlawful thing ; or, if two persons should agree together that one of them should, by making false representations as to his means, induce a young woman to marry him. Although the fact of inducing a young woman to marry is not an unlawful thing, yet if two persons were to induce § v.] MODERN DOCTRINE. 203 a young person to marry one of them by false representations, that would be an agreement between them to do .a lawful thing by unlawful means. These instances will enable you to understand the law as I am putting it to j^ou. Therefore, you will have to consider whether these defendants, or two of them, or more, have agreed together to do an unlawful act or to do a lawful act by unlawful means. Upon an indictment for a conspiracy, you caanot find one man only guilty, because if one man only has been concerned in a matter, there is no agreement. But if five men are before you indicted for a conspiracy, you are not bound to find them all guilty ; you may draw a distinction between them, you may come to the conclusion that two of them, or three of them, or that all five of them, are guilty. These men are indicted for a conspiracy, not only between themselves, as though they were the only conspirators, but they are indicted for conspiring among themselves and with Other persons, although as those other persons are not here, you cannot, of course, find those other persons guilty so as to make them amenable to the law. But it does not follow because other persons were guilty ' with the defendants, that if you think the, defendants guilty, you should not find them guilty. You are to deal with their case alone, and with due regard to the case of each of them. Now I shall ask your opinion as to this conspiracy in two forms. You have heard a discussion with regard to the mode in which this conspiracy is charged. It is charged in a diflFerent form, perhaps not very substantially dif- ferent, but still in a different form, and I shall ask you, with regard to both, whether there is the one kind of conspiracy to which I shall first ask your opinion, or whether there is the other kind of conspi- 204 STRIKES AS CONSPIRACIES. [§ V- racy as to wMqIi I shall subsequently ask you. Now I shall first ask you this : was there an agreement, or combination, which is practically the same thing, be- tween the defendants, or between the defendants and others, or by some of them, to force Mr. Trewby, or the G-as Company, to conduct the business of the com- pany contrary to their own will by an improper threat, or improper molestation ; and I tell you that there is improper molestation if there is anything done with unjustifiable interference, and which iji your judgment toould have the effect of annoying or interfering with the mi7ids of the persons carrying on such a business as this Gas Company was conducting. It is not neces- sary, in order that there should be a conspiracy to molest, that any one should be personally molested. It is enough if you should think that a molestation was designed and agreed upon with improper intent, and which in your judgment would be an annoyance and an unjustifiable interference, and would in your belief be likely to have a deterring effect upon thte minds of the employers, — that is to say, of Mr. Trewby or the gas company. I tell you that the mere fact of these men being members of a trades-union is not illegal and ought not [to] be pressed against them in the least. The mere fact of their leaving their work — although they were bound by contract and although they broke their contract — I say the mere fact of their leaving their work and breaking their contract — is not a sufficient ground for you to find them guilty upon this indictment. This would be of no consequence of itself, but only as evidence of something else. But if there was an agreement among the defendants by im- proper molestation to control the will of the employers, then I tell you that would be an illegal conspiracy at common law, and that such an offense is not abrogated § 7.] MODERN DOCTRINE. 20S by the Oriminal Law Amendment Act, which you have _ heard referred to. This is a charge of con- spiracy at common law, and if you think that there was an agreement and combination between the de- fendants, or some of them, and others, to interfere with the masters by molesting them, so as to control their will ; and if you think that the molestation which was so agreed upon was such as iArould be likely, in the minds of men of ordinary nerve, to deter them from carrying on their business according to their own will, then I say that is an illegal conspiracy, for which these defendants are liable. That, gentlemen, is as to the first set of counts. But this conspiracy is charged in another form, and in that form the real charge is that they either agreed to do an unlawful act, or to do a lawful act by unlawful means ; and it seems to me more naturally to fall under the latter class. I shall, therefore, ask you whether there was an agreement or combination between the defendants and others to hijider and prevent the company from carrying on and exercising their business, by means of the men simultaneously breaking the contracts of service which they had entered into with the company, and I tell you that the breach without just cause of such co7i. tracts, as have been proved in this case, is an illegal act by the servant who does it. It is an illegal act, and what is more it is a criminal act — that is to say, it is an act which makes each of them liable to the criminal law — -and therefore if they did agree to interfere with the exercise of their employer's business by simulta- neously breaking such contracts — even if you were to suppose that to interfere with the exercise of their employer's business was a lawful thing for them to do — yet if they agreed and combined to do that lawful act by the unlawful means of simultaneously breaking 206 STRIKES AS CONSPIRACIES. [§ V. all these contracts, they were then agreeing to do that which may be assumed to be a lawful act by unlawful means, and that would bring them within the defini- tion of a conspiracy. In such case you will say, if you think that so it was, that they were guilty upon the second set of counts. Now, with regard to all this, what is the evidence ? You find that these men and others, making up the number of five hundred men, were air in the employment of this Gas Company, and that Mr. Trewby was the foreman or person in authority managing for the company ; and you find that there was another gas company, called the Inde- pendent Gras Company, which carried on its business at Pulham ; and the first thing that you know is that on the 28th of November a man at Fulham was discharged from the gas works there, and that in consequence of that there was a strike of sixty-two workmen at those works at Fulham. That is a circum- stance which, because it is referred to, and because it may have been a motive and a ground of action, you must take notice of. Then you have it that, on the night of that same 28th of November, on the night of that same day when this thing happened at Fulham, in what they call the long spell at the works of the . prosecuting company — that is, between twelve and half -past twelve at night — there was a meeting on the works of the night gang. The men who are on the night gang, some two hundred and fifty of them, do not work all the night, but they must remain on the premises all the night ; but between twelve and half- past twelve is a time when they are not at work and is the longest interval, as I should judge from the meaning of the terms ' long spell,' at which they are not at work during the night. There was a meeting on that night. On Friday night, the 29th of November,' § v.] MODERN DOCTRINE. 207 that is, the next night, tlie defendant Wilson came in and made a statement. He said that he was appointed delegate for that night, and must go to the society ; that the meeting of the society would be held at some place near Pinsbury square. Now, what is a delegate ? He is, as you have been told, a persour — one of the workmen, or one of the members of the Trade Union — who is elected by his fellows at the works of a particular firm, to go and represent them (that is, the workmen in that employ,) at a meeting of the union, to agree with the other delegates as to what is to be done, and to come back and inform his own consti- tuents what it is they are to do. Then, besides the dismissal of the men at the Fulham works, you have the dismissal of Dilley at those works. Dilley was dismissed because he had refused to do certain work which he was ordered to do, and the reason which he gave at the time was, that it was work which he was not allowed by his union to do. Therefore, the case stands thus ; the men at Fulham had been dismissed, upon which sixty-two men had struck ; a man had been dismissed from these works for not doing work which he was not allowed to do according to the laws of the association to which he belonged. Wilson is a delegate from the workmen from these works to the union ; he goes [on] to say that Dilley is to take his pay on Saturday morning, that is, at the end of the week, and if he was paid up to Friday night he was to take it and say no more about it. That was at first not very clear, but it was more fully explained afterwards. The meaning of what Wilson said you are to gather from these facts, that in every week the company keep back one day's pay. It is not stated why, but you know very often it is for subscription to reading- rooms, and for the assistance of men when they are 208 STRIKES AS CONSPIRACIES. [§ 7. sick. I don't know why, but for some reason they keep it back. Not that they do not pay afterwards all that is due ; but one day's pay is kept back out of the six that he may earn. If Dilley got his whole pay, therefore, it would show that he was discharged, not that he was to be kept on. If he was paid one day short, it would show that they were keeping him on, and then, so far as Dilley was concerned, there was no grievance at all; but if he got his whole pay then it would show that he was discharged. Now, you will see what was to happen. Wilson said that according to the opinion, not of the men in these works only, but of all the delegates where he had been (for he had said this on the 29th and he must have been on the 28th at the delegates' meeting), that if Dilley was paid all his back time he was to take it, and no further notice was to be taken of it until they heard from the delegate meeting. He said further that something had passed at the delegate meeting which he would not divulge to any one, not to his own father if he was to arise out of his grave. Now, what do you infer from these facts, and from this statement of Wilson's ? Nothing was to be done if Dilley was paid in full. If he was paid in full, it showed that he was discharged, and then there was a grievance. At the first blush it would be supposed if that he was paid in full and discharged, the men would be called upon to act at once. But no ; the opinion of the delegates is that under these circumstances you are not to act at once, but what you are to do is to wait until you hear from the delegate meeting. And something passed at the delegate meeting which was secret ; because, of course, the form of speech about his father was mere exaggeration on the part of Wilson; it meant that the decision of the delegates § 7.] MODERN DOCTRINE. 209 was to be kept secret. ' You are not to act now, you are to act when the delegates send you word.' Is not that the meaning of it ? The inference for you to consider is whether the meaning is not — 'Don't you go out now, because there may be arrangements to be made. If this man is discharged, and you are so ordered by the delegates, you will have to go out ; but it will be when all the other men who are members of the union, and not only you at these works, are going out at the same time.' It is for you, of course, as a jury exercising your judgment fairly as between these defendants and the law, to say what is the meaning of it; and what is the meaning of that which Wilson said. The witness who proves it says, ' I cannot say the other defendants were there. I believe that we were all there, but I can't say.' Then he is cross-examined, and he says, ' Jones on the Thursday night had ceased to be a delegate, and Wilson was the delegate for that night, but he was elected as a delegate for that night only.' If so it was on the Thursday night that Wilson attended the meeting of delegates. Before that night Dilley had been discharged, or was likely to be discharged, and the men at Fulham had been discharged. Then he comes back from the meeting of delegates, and on the 29th this is the information that he gives :^Now we have what happened on the Monday morning. The first person that had notice, on the part of the employers, of anything likely to happen, was not Mr. Trewby, but the other man, Leonard. .He says ; ' I am foreman of stokers — On Monday, the 2nd of December,. I got to the works at ten minutes to six ; when I got there I found a great many of the day gang there already ; they were standing in the retort house and in the lobbies. I waited for some time to see if they 210 STEIKES AS CONSPIRACIES. [§ 7. would begin work. Some observations were made, and I then went and fetched Mr. Trewby.' Then you have Mr. Trewby. He says the night gang go on at about iive, and come off at about half -past five the next morning ; they work for about five hours. The change of the gangs takes place between six and seven; some come at six, and some at half past six, and. some at seven ; those are for different portions of the process. On the 22nd of November, he says, the matter was reported about Dilley. ' On Monday, the 2nd of December, Collier, the foreman, came to me about a quarter to seven in the morning. In conse- quence of what he told me, I went to the four retort- houses on the works ; this was a quarter to seven o'clock. I saw the night and day gangs there.' Therefore when Mr. Trewby was sent for there must have been this unusual state of things happening ; that is to say, that being a quarter to seven, when the night gang would have gone home to bed and the day gang to work, you have the whole five hun- dred men there ; the night gang had stayed on and the day gang had arrived. Before the gang begins to work they usually change their clothing. ISTone of the day gang had changed their clothing in order to go to work, so that you have two hundred and fifty men all doing that which was contrary to the rules. Mr. Trewby further says: 'I asked the men what they wanted to see me about ; ' so that you see the message which had been taken to him was not merely that the men were doing something which he was bound to look after, but that they wanted to see him; and the message sent was not that one man wanted to see him, but that they all wanted to see him ; and when he goes to see them he asks what they wanted to see him about. He says : ' I noticed there § 7.] MODERN DOCTRINE. 211 Jones and Wilson.' You recollect, gentlemen, that Wilson is the man that had been to the delegates and made that statement on Friday night the 29th. ' I noticed Jones and Wilson standing close to me ; I noticed Webb there.' Now Webb is a person who took a prominent part, but he is not one of the defend- ants ; he is not there. They said they wanted to see me about Dilley's case. Webb was the first spokes- man. I asked ' where are the day gang ?' Jones said : (one of the defendants) ' The day gang are all here.' I said, ' why don't you go to work ? ' ' Now what was Jones' answer ? Not ' I have decided,' but ' We have decided not to go to work until Dilley is reinstated.' He said that in the hearing of the five hundred men who had sent to the superintendent, whom they called the govenor, to see them. There they are in front of him. He says, ' What do you want with me ? ' Webb stands forward as the first spokesman. Jones stands forward as a spokesman, and Jones does not say ' I have decided,' but in the face of all these five hundred men he says, 'We have decided not to go to work until Dilley is reinstated.' Wilson spoke to Trewby to the same effect; Webb spoke to the same effect. Therefore you have Wilson the defendant, Jones the defendant, and Webb, who is not here, stepping as it were forward in front of these other workmen, and the statement they all make is, ' We have decided not to go to work until Dilley is reinstated.' ' I said to them (that is, to Webb), as he belongs to the night gang, ' You should have left the works.' It was then past seven o'clock. I said, ' The time has now elapsed when the whole of you should have gone to your work. The Company have always behaved liberally towards you. They have conceded all you have asked from time to time, and I call upon all of you who are 212 STRIKES AS COWSPIRAOIES. [§.7. well disposed towards the Company to go on with your work.' What was it that Jones said ? ' Yes, ask them that; Was that sarcasm ? Mr. Trewby says, 'I ask all of you who are well disposed to the Company to go to your work,' and Jones says, ' Yes, ask them that.' Not a man stirred, or separated himself from the rest. I asked all those who' were well disposed to separate from the rest. I said both to Jones and Wilson, 'Am I to understand that you refuse to go on with your work until Dilley is reinstated ? ' They (that is Jones and Wilson) said ' yes.' ' Now you must consider what had happened, and what Wilson said on the 29th. They said that Dilley's discharge and the Fulham matter had been put into one. . Does that mean that they were to strike, unless the Fulham matter and Dilley's matter were both settled? And if it does mean that, who had put them into one ? Was it the persons at these works only that had put them into one ? The persons at these works, unless they were combined with others, had no interest in the Fulham works. Had they any combined action with others with regard to the Fulham works, and if so, where was that combination? . You know that they sent a delegate to the society; you don't know whether there was a delegate from the Fulham works, but you must ask yourselves' what was the meaning of Dilley's discharge and the Fulham matter being put into one. Mr. Trewby goes on : — ' I said, ' I have nothing to do with the affair at Fulham.' These things were said loud enough for the other workmen to hear. They all stood together but the other workmen said nothing ; I told them I would give them ten minutes for consideration ; I said that loud enough for them to hear. I went away into the stoker's lobby. I saw a man named Simmons in the § 7.] MODERN DOCTRINE. 213 lobby and in consequence of what Simmons said to me I askedTwhen I got back, for Bunn and E,ay, who are two of the defendants.' You have heard of Wilson, Jones and Dilley, now you heard Bunn, B,ay and Webb. You must exercise of course, to some degree your imagination, so as to get at the truth of what was taking place. Bunn and Ray are there according to their evidence, and they stand forward. Mr. Trewby proceeds : ' I said to them, ' Am I to under- stand that you refuse to go on with your work till Dilley is reinstated ? ' They said, ' Yes.' I said, 'You know that you are acting illegally, that you can't leave your work without notice, that some of you are under a monthly agreement and some under a weekly agreement and you must not leave your work with- out giving us proper notice. I will give you ten minutes more for consideration, and then you will let me know the result.' Jones said, ' Well we may as well tell you at once, we have made up our minds.' I said, ' I will let you have ten minutes for reflection.' I then went away, and in about ten minutes I returned and Jones again said, ' We are of the same opinion.' Jones, Bunn, Ray and Webb were there then; I won't be sure about Wilson being there then. The gangs were still there, not so many as there had been. Jones said, 'they were still of the same opinion.' I said, 'very well; then I will reinstate Dilley, but I reinstate him under protest; now go on with your work.' Webb said, ' that they did not know what I meant by protest.' I said, ' Do you ? ' and he said ' Yes.' I said, ' Perhaps you will explain it to them.' He said to the men (that is, to the body of men,) 'the Grovernor means to punish you.' He said to me, ' Will you withdraw that word ? ' I said, ' How can I ? you insist upon Dilley being rein- 214 STRIKES AS conspieaCies. [§ 7. stated, and I reinstate him under protest.' I said to the men (that is, to the body of men,) ' now go on with your work.' Webb said, answering for the men, ' We may as well tell you that we cannot go on with our work until the men at Fulham are let in.' ' They go away again, you see from Dilley's case, and now it is that they cannot go on with their work until the men at Fulham who are out, the sixty-two men, are let in. Mr. Trewby said, ' That is a matter with which I have nothing whatever to do, and I can do no further in it.' They said they could not go to work until they had orders from their delegate meeting. I have pointed out to you what took place at the beginning. Wilson went to the delegates' meeting, and the order was, ' Don't act at once ; only act when you receive orders.' Then all this contest, and then at the end, what is said in the face of these men is that they could not go to work until they received orders from their dele- gate's meeting. Mr. Trewby further deposes : ' Webb said that, and I left them to consult with my assistants and foreman. The night and . day gangs then walked off in a body. I saw Dilley walking away with other men.' Therefore you have here evidence that all these five defendants were present, and there is evidence of their being seen at different parts of the transaction during which they were present with the five hundred. You have now heard what took place. You have heard that the manager is sent for, that he goes, and there are all the men — those who ought to have been away from the works as well as those who ought to have been at work — collected, not prepared for work, but standing there as one body and these defendants one after another acting as spokesmen between them. You have it that these two terms were insisted upon, namely, that Dilley should be reinstated, and that the § 7.] MODERN DOCTRINE. 215 Fulham men should be reinstated also, otherwise they would not go to work ; and then it is said, ' We cannot go to work until we have received orders from the delegate meeting ; ' and then upon the manager (who had agreed to reinstate Dilley, although under pro- test,) refusing to take any responsibility with regard to the Fulham matter because he could not, all the men go off in a body leaving the works there without men to work them. There was no violence of demeanor, nor threatening of any sort by any of the men ; that is to say, you are to take it that no threats of any per- sonal violence were made, either with regard to Mr. Trewby, or with regard to the other workmen, except that which was hinted, but which was practically given up, and which, I think, therefore, you ought not to take into account, namely, the threat to the Grer- mans. You may take it substantially that what- ever was done by these men was not done by threats or personal violence, either to the employers or to each other. The evidence of what was done is before you. It is for you to say whether this evi- dence proves to you that there was an agreement amongst these defendants, and practically amongst all the others, because, whether they were more or less willing is unimportant, if they succumbed and did agree in the combination that unless their demands with regard to Dilley, and also perhaps in regard to the Fulham men, were complied with they would cease work. You have to say whether in your judgment that was not an agreement, not merely to cease work, but to cease work simultaneously and without notice, because as to this what the manager said is most important. He said, ' You have no right to leave your work without giving us proper notice.' Well, according to those contracts, they had not. 216 STRIKES AS CON-SPIRAOIES. [§ 7. Wliat would have been the result if they had given notice ? Why, obviously that the company , would have had an opportunity to get workmen some- where else. But if they went away without giving notice, and simulta-neously, what would be the consequence to the company ? You must ask your- selves whether, in all human probability, it would not have been that the company would have been left without workmen at all, and unable therefore to supply more than the quantity of gas which they had in store, and you have heard that they had not storage for more than a third of what they make in the day. That would seem to show that they could not rely on their storage for the supply of more than a single day. Tou then have the evidence of three or four men who were employed, E,offey and others, who tell you that they arrived at these gas works in the morning at their usual time, about six o'clock. Roffey says, ' I saw all the defendants there when I arrived. Dilley told me if I did not go with the rest I should be spotted.' That is going further than any- body else has done ; it is not merely an agreement to stop work, but it certainly is a kind of threat and annoyance — and a terrible annoyance — to this man from Dilley. There is, as far as I can see, no evidence that the others combined in that threat, but it is a lamentable thing that Dilley should threaten a man with that which for a workman is as great a crime as he could very well commit — a moral crime as against a fellow workman to say to him, ' Mind ! you shan't follow your own will, if you do you shall be spotted ; ' that is to say, you shall be sneered at and be con- sidered degraded by all the men of your own position and by your fellow workmen. Grentlemen, you must not allow that to weigh against the other defendants § 7.] MODERN DOCTRINE. 217 in this case, because there does not seem to be any evidence against them of a conspiracy to be carried out in that manner. Penn says, ' I saw Dilley when * I went ; I stripped for work ; Dilley asked where I was going ; I said to work. He told me to put my clothes on, or I must put up with the consequence of it.' But again, this is only Dilley. Byes said, 'I went and saw Bunn there and he asked me where I was going ; I told him I was going to work ; he said, ' There is no work to-day, the work is stopped.' Now you know the work was not stopped by the employers. The work was stopped, if by anybody, by the agreement of these men among them- selves. ' I asked him what for ? and he told me to go to the Castle Tavern, in the Barking-road, and I should know.' This introduces a subsequent feature, which can only be of importance in order to lead your minds to this ; was there a combination or agreement? We have here Bunn, and I think we have also Dilley, tell- ing the man to go to the Barking-road. But that is not of so much importance as this. You will find that all , the men did go to the Barking-road, and to a tavern called the Castle Tavern. So yoh have not only the fact of all the men leaving simultaneously, but you have also the fact of their all going to the same place, their rendezvous. ' I saw Jones and Ray there. I said to Jones, ' what is the matter.? ' He told me it was all through Dilley and the men. at Fulham ; he told me that Collier had asked him to call the men together to ask them if they would go to work and the men said no.' Then you have the Grerman wit- nesses. About them I do not propose to trouble you, as I do not think under the circumstances they carry the pase further. They are to the same effect, that they were told not to work. Now, gentlemen, it 218 STRIKES AS CONSPIRACIES. [§ 7. comes to my mind to be an essential matter for you to consider what was the position of the Gras Company, and for that purpose you must consider what was the relation between the Gras Company and the public. As between the Gas Company and the public, the Gras Company were supplying the whole city of Londoh, and a great part of what is called the west end of London, with gas. And the Gras Company would be under contract no doubt to supply a great many persons with gas. But, whether they were under contract or not, you will ask yourselves whether the stoppage of such a large business, and the stoppage of it in that way — namely, that it would reduce the city of London and the suburbs to darkness — whether that would net be a tremendous blow to the company, the employers of these men. I say nothing of the public ; but is it not a case in which the men, however little intelligent they might be, would have it in their minds that their employers never would run the risk and take the responsibility of putting the whole of London, or all that part of London which they supplied with gas, into darkness? Then what was the intent in their minds ? Was it a wicked intent — that is to say in your judgment was it anything like fair dealing as between master and servant, and between man and man, that the men should agree simultaneously to stop work, and such a work, if they had the intent or the suspicion that by so doing they would put their masters under terrible responsibility? I must ask you whether, in your judgment, this must not have been in their minds : ' If we let our employers know or think we shall go off simultaneously we shall frighten them so with regard to the mode of carrying on their business, that th^y must alter thei*- mode of doing their business, and therefore they must succumb to § 7.] MODERN DOCTRINE. 219 our wishes, namely, they must take into their employ- ment the man they have dismissed, and whom they dismissed because it is admitted he refused to do what he was told to do, not upon the ground that it was not within his contract to do it, but upon the ground that somebody not his master had told him he was not to do such work. Is that in your judgment an improper interference with the mode of carrying on the busi- ness of the employers? And do you think, from the mode in which it was done, that it was in the minds of the men that it would be interfering with their master's will? Do you think that interference was made under such circumstances as would control the will of the masters of ordinary nerve under such cir- cumstances? It is to obtain your view 6f this that I ask you, with regard to this first set of counts. Do you think that a conspiracy is made out against these men ; first, that they tried to force the company to conduct their business contrary to the will of the com- pany by improper threat or improper molestation? Do you think that the defendants agreed together to force the company to conduct their business contrary to their own will — that is, to force the company to employ a man against their will, which man the com- pany, unless so forced, would not employ? Then, do you think that was done by an improper threat or molestation? And in order to arrive at this, I tell you there would be an improper molestation if anything was done with an improper intent which you think was an unjustifiable armoyance and interference with the masters in the conduct of their business, and which in any business would be such annoyance and interference as would be likely to have a deterring effect upon masters of ordinary nerve. Therefore, do you think t.hfli, the defendants aarreed to force their masters to 220 STRIKES AS CONSPIRACIES. [§ V. carry on their business in a manner against their will by improper molestation — that is to say, by annoyance or interference which in your minds was so unfair as to be unjustifiable, and which would in your judg- ments deter masters of ordinary nerve from carrying on their business as they desire, such molestation being of this kind : ' Inasmuch as we know you are a gas company lighting a great part of the metropolis, we suggest to you this — Suppose we all leave work at the same moment.j if we do, you cannot carry on your business ; you must then throw every district into darkness. You dare not do that against your cus- tomers and against the public, and therefore you must yield to what we demand.'- Was that an improper interference, in your judgment, and was it such an interference as in your judgment would be likely to deter masters of ordinary nerve from carrying on their business according to their own will? If you think that you must say that these defendants are guilty of the conspiracy. If you think that it is not made out in any one of the circumstances which I have put to you, you must say that the defendants are not guilty. Of course you are at liberty to draw any distinction between these defendants that you may think fit ; but it was practically an agreement amongst all the work- men. As it seems to me, there is no distinction between any of the defendants, but the evidence is as nearly as possible equal to them all ; and your verdict will be, I think, that they are all guilty or none. Then comes the other point. — Do you think that they agreed to interfere to hinder and prevent the company frotn carrying on and exercising their business accord- ing to their own will by those other means, namely, by simultaneously breaking all the contracts of service into which they had entered? It has been said that § v.] MODERN DOCTRINE. 221 the breaking of the contracts would not be an offense, because they would not be within the Masters and Servants Act. Now, according to that Act, the word ' employed ' shall include any servant or workman who has entered into a contract of service with an employer. It is obvious that these men had all entered into a contract of service with their employers ; but not only these men, for the evidence is that all the five hundred men had contracts of service with their em- ployers. Then the Act goes on to say that the words, ' Contract of service,' shall include any contract whether in writing or by parol. Now, to say that these workmen had not entered into a contract by parol seems to me to be absurd. Some of them sign these agreements that have been put in, and others go to the works and are paid weekly wages, but with a notice put up in their pay-room that they are not to leave, and that they are bound not to leave without a week's notice. This is a contract of service and it signifies not whether it was in writing or not. Then, having entered into these contracts, the Act says, ' Whenever the employed shall neglect or refuse to fulfil his contract, he may be summoned before a magistrate and dealt with summarily.' Therefore, the breach of such contract so made is an offense, and the breach of that contract, I tell you, is an unlawful act. Now the breach suggested is this. They were all entitled to leave the service with notice, but none of them were entitled to leave without notice, and I have pointed out the importance of that in this par- ticular case. If they leave with notice, their places can be supplied ; if they leave without notice, that is to say, simultaneously — the five hundred men — their places cannot be supplied. If you think, therefore, that they had entered into an agreement not merely 222 STRIKES. AS CONSPIRACIES. [§ 7. to break their contracts, but to break them simulta- neously, do you or do you not think, even if they might break their contracts and cease to work, and even if they might agree to do it — do you or do you jiot think that was the doing or agreeing to do a lawful act, that is, to leave the employment ? Even if you assume it to' be a lawful act, do you think this was an agreement to do that lawful act by unlawful means, that is to say, by breaking their contracts — ■ by leaving without notice at one and the same time ? . And in order to show the spirit and purpose with which they did it, do you think that they did it with evil intent, that is, the evil intent of forcing their masters to carry on their business in a way which they knew was contrary to the will of their masters ? If they did, you will say they are guilty of a con- spiracy ; if you think they did not, you will say that they are not guilty. Therefore, if you find them guilty of one of these conspiracies, you must say that they are guilty, and perhaps you will tell me of which. It does not at all follow that you may not be of opinion that they are guilty of both conspiracies, and if so you will tell me. As to any trouble, or annoy- ance, or anger, which they may have caused to the public you must not take that into account. I mean you must not find them guilty because you think them wicked in that respect. Still, you must take this into account : What had they in their minds with regard to their masters ? If you think they are guilty of these conspiracies with regard to their masters you will say so ; but if, upon consideration, you doubt it, with regard to all or any of the defendants, you will, .of course, givfe them the benefit of that doubt, and say that they are not guilty. Grentlemen, you will try the case without prejudice, and without any view § 7, 8.] MODERN DOCTRINE. 223 of what the result may be ; and you will say whether, within the law as I have laid it down to you, they are guilty of one or both the conspiracies. If you think they are, you will say that they are guilty; if you think they are not, of one or either, you will say that they are not guilty." Verdict of guilty, and sentenced to twelve months imprisonment with hard labor. ^ § 8. Tlie Right to Strike. From the definitions given, all strikes are illegal. The wit of man could not devise a legal one. Because compulsion is the leading idea of a strike. Men seek to compel by force of numbers, employers or employes to do that which they well know could not be done by single individuals. It is apparent to any sane mind that there is something in the mere assembling together in large numbers, that inspires if not actual fear, at least solicitude or apprehension in the mind of the bravest man, and in the timid actual fear and indescribable dread. The purpose invariably is to produce this very result. It is intended to have an effect on the mind, and when the mind is affected as the strikers desire, extort some concession that they know they could not otherwise obtain. It is idle to talk, about strikers being actuated by inoffensive pur- poses in organizing a strike. They know and fully intend all the evil consequences that result from simultaneously and by preconcert quitting the service of their masters. They know and fully intend that by quitting in a body in the midst of the busiest time, that their masters will be left without sufiicient employes to carry on business, and they hope that ISee slso Reg, v. Duffiekl. 5 Cox C. C. 404, on the subject of intimidation, obstruction and interference. 224 STRIKES AS CONSPIRACIES. [§ 8. the certainty of financial loss resulting from their action, will compel the employers to yield to their demands. Their purpose is to compel the employer, by putting him in mental duress, to agree to some- thing that he would not agree to if left free to exercise his right of volition. In any other of the affairs of life, a contract so obtained, would be promptly declared by the courts, illegal. A contract must be the free, voluntary and unbiased agreement of the parties entering into it. The contract between employer and employe is, that the former will supply work and pay certain prices, and that the latter will do work for the the prices agreed upon. The price to be paid, the kind of labor to be performed, and the rules and regulations under which it is to be performed, are legitimate subjects of contract when the parties are entering into one. Hence, as so-me authorities put it, that workmen unemployed and free to enter into service or not have the right to say they will work for only certain prices, and that if they are not paid those prices they will not work at all.^ The qualifications in this proposition must not be lost sight of, " workmen unemployed and free to enter into service or not." When the parties are making their contract in the first instance, they, are both as free to make just such a one as suits them, as parties making contracts in any other of the aifairs of life — between vendor and vendee for instance. The owner of property or goods has the right to ask just such price as he desires, or as he thinks he can get, and the purchaser must pay his price or go without the goods. But he has the right to buy as cheap as he can, and to argue with the owner to induce him to lessen the price. I Reg. D. Duffield, 5 Cox, C. C, 404; Reg. v. Selby, Id., 495 ; Commonwealth v. Hunt, 4 Mete, in, § 8.] ' MODERN DOCTRINE. 225 But if the owner is obdurate, the purchaser must pay the price or go without. It is evident that the vendor has the advantage, and if he desires to be mean he can do so. But it so happens that there are other vendors and other dealers who may be actuated by better motives, and willing to sell goods at reasonable prices. The purchaser therefore, can turn on his heel and say, " very well I will go where I can buy cheaper." Hence each dealer is a check on all others and competition being great all are com- pelled, if they do any business, to sell for reasonable prices. Hence prices substantially obtain uniformity. That uniformity of price is what both dealer and the community generally recognize as being fair. The purchaser recognizes the fact that the dealer must make a profit or go out of business. The dealer recognizes the fact that he must put the price of his goods at a figure that is within the means of his customers. It is evident that if the dealer demanded outrageously high prices, his goods, owing to the inability of his customers to buy them, would rot on his hands and he would suffer a total loss. Further, every merchant has high and low priced goods. This must be so of necessity. Some goods cost more and there- fore are worth and must sell for more. But none but those who are able to, can or should purchase them. It is purely a voluntary matter whether any one buys them. But even the high priced goods must be within the means of purchasers to buy. Precisely the same principles apply between master and servant. There are different grades of workmen the same as there are different grades of goods. They range from the common laborer up to the most skilled mechanic. The law has adopted the honorable rule, by treating the labor of the man who has nothing but his muscle 226 STRIKES AS CONSPIRACIES. [§ 8. to rely upon, and the skill of the better class of work- men, as property. Therefore, when a workman applies for employment he, in law, offers to exchange property with the employer. Like any other property owner, he has the right either as an individual, or many of them collectively, to fix his own price upon his own prop- erty. Yet, while he has the right to do that, he must recognize the right of the employer to have something to say as to whether he will buy his property at all or if he does, what price he will pay. As in other cases, mutual concessions in agreeing to terms are the result. Undoubtedly the employer has the advantage, because he has the most means, and can get along with- out employes for a longer time than the latter can with- out employment. But that is simply the good fortune of the one party and the hard luck of the other, and is not the fault of the law. Before contracts are entered into, the workmen have the right to negotiate with employers, argue with them and induce them to pay as high wages as possible. But in these negotiations principles of justice must not be lost sight of. Thus, like the merchant who would demand prices that no one could afford to pay, if the workmen demanded wages higher than the employers could afford to pay, there could be no employment, for like the merchant, the employer must make a profit or go out of business. If the employer would not pay wages suflBcient to enable his employes to live, then, in that case, there could be no employment. But while the law certainly does concede to workmen the right to receive as high wages as possible, yet it will not permit them to extort, by threats, intimidation, coercion, interference or molestation, a contract from the master to pay those prices. Since the repeal of the odious labor laws of England, masters cannot force workmen to § 8.] MODERN DOCTRINE. 227 labor if they do not wish to ; and certainly it would be equally as unjust to compel a master to employ workmen whom he does not wish to employ. A workman, having accepted employment, is bound by his contract, whatever it may be, provided it is a lawful contract — not based on any illegal or immoral consideration. If he agrees to work for a specified time at a specified rate he has no legal right to quit before the, expiration of his term of service. The law holds the employer to his side of the contract, and it certainly holds the employe to his. It knows no pets. It will not hold one party to his contract, and allow the other to violate his with impunity. If the rule were otherwise there would be no use in making con- tracts. But where men are not employed for any specified time, unless there is a local custom so well established that all persons are supposed to contract with reference to it, a workman has the right to quit when he pleases, for any reason or no reason except that he wishes to. ^ It being manifest that the purpose of employes in quitting work simultaneously was to compel the master to do something against his will, it is not astonishing that the common law treated the mere conspiracy or combination to quit as a criminal con- spiracy. In criminal offenses, the law looks only at the intent with which an act is done. The intent in striking being wrongful, it must be admitted that the common law rule was not much out of the way, for an offense was committed as soon as an intent was formed, and that intent was shown as soon as a con- spiracy was entered into. By some of the authorities cited in the preceding section, the common law of conspiracy, so far as it 1 Frank v. Denver & R. G. Ry. Co. 23 Fed. Rep. 757. 228 STRIKES AS CONSPIRACIES. [§ 8. relates to strikes, was repealed by tlie act of 6 Greo. 4, c. 129, § 3. But the case of Eeg. «. Bunn, last cited in tlie preceding section, seems to hold that it was not done away with, but is still in force. At any rate, that statute, as modified by 34 and 35 Vict., c. 72, is the criminal law now in force in England, on the sub- ject of strikes. It shows the purposes and methods of strikers as demonstrated by past experience, and, in brief, makes it unlawful for any person, by violence to person or property, or by threats, intimidation, molestation, or obstruction, to 1st, Force or endeavor to force a workman to quit his employment ; 2d, Prevent or endeavor to prevent persons seeking employment from being employed ; 3d, Force such person to belong to a club, contribute money, or pay a fine or penalty on account of being a member of a club or association ; 4th, Force or endeavor to force a manufacturer or person carrying on any trade or business to alter the mode of conducting or carrying on his business, to limit the number of his apprentices, or the number or description of his journeymen, workmen or servants. From this statute the offenses of strikers are directed both against employers and employes, for the purpose of compelling them to do something against their will. It will be found in the light of the cases given in the preceding section, that the unlawful acts are to be accomplished by intimidation. Intimidation shades off from the highest to the lowest form. There could not be a higher form of intimidation than violence. Threats are always intended to intimidate. Intimida- tion is held to be something unpleasant to the mind, and hence is intended to have a direct influence upon § 8.] MODERN DOCTRINE. 229 the mind. As molestation and obstruction are also intended to compel persons to do something against ttieir will, and as no one will do anything contrary to his will except through fear of something, either personal violence, or consequences, such a-s loss of business or destruction of property, it is fair to assume that the words in the statute, 'molestation' and 'obstruction' convey the idea of intimidation, although in a milder form than that caused by vio- lence or threats. Therefore, from the above statutes and cases the following general rule may be formulated. Workmen not bound by contract to work for a specified time, or those so bound but at the expiration of their term of service, may quit work either singly or in a body by preconcerted arrangement, provided they do not resort to any of the forms of intimidation forbidden by the statute. But the moment such intimidation is resorted to, that moment their acts become unlawful, and they are liable to punishment for criminal conspiracy. The same remarks by the courts in American cases, such as " workmen have the right to quit work when they please," " they have the right to work for whom they please, &c., &c.," occur. But they will be found in nearly every instance to be obiters. The defendants were indicted and tried for conducting strikes by every form of intimidation known to the law of strikes. In this country things are not done in a half-hearted way. Our strikes, particularly those that are con- sidered worth taking info court, are marked by not only violence, but too frequently by loss of life and property. But obiters have a value, for they show the drift of the judicial mind, and indicate what the decisions will be when certain questions get fairly before the courts. 230 STRIKES AS CONSPIKACIES. [§ 8. The American rule, if it really can be said there iS any generally applicable to all the states, is that laid down in a case in Pennsylvania.^ Judge Gribson in deciding the case said, " I take it,, then, a combination is criminal wherever the act to be done has a necessary tendency to prejudice the public or to oppress indi- viduals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief." The American cases are as inimical to intimidation in any form as the English. But as they will appear under other heads further mention of them here will not be made. Statutory enactments against intimidation. In many of the states there are statutes prohibiting the intimi- dation of both employes and employers. In AlabaTna, it is made punishable by imprison- ment in the county jail, or by hard labor for the county for not exceeding twelve months, for any person by force, threats of violence to person or prop- erty to prevent or seek to prevent another from work- ing, furnishing materials, contracting to do work or furnish materials, or to engage in any lawful business, industry or calling, or to disturb or interfere with or prevent the peaceable, exercise of any such business, &C.2 In Connecticut, it is enacted that every person who shall threaten, or use any means of intimidation to compel a person against his will, to do or abstain 1 Commonwealtli v. Carlisle, Brightly's Rep. (Pa.) 36. Carson, Criminal Con.spiracies, in Wright's Criminal Conspiracies and Agree- ments, 178. Greenhood, Pub. Policy, 648, Rule 546. Ray, Con- tractual Limitations, 340. Toledo A. A. and N. W. Ry. Co. v. Pa. Co. etal, 54 Fed. Rep., 730. 2 Code Ala., (1886) 2 vol., § 3763. § 8.] MODERN DOCTRINE. 231 from doing an act which he has the legal right to do, or who shall persistently follow a person in a dis- orderly manner, or injure or threaten to injure his property with intent to intimidate him, shall be fined not more than one hundred dollars or imprisoned not more than six months.^ In Colorado, it is not unlawful for two or more per- sons to combine to advance their interests as workmen, to increase their wages, to regulate the hours of labor, and to procure fair and just treatment of employes, provided they do not resort to threats of bodily or financial injury, or by any display of force prevent or intimidate any other person from continuing in employment, or to boycott or intimidate any employer of labor.^ In Georgia, if any person, by threats, violence, intimidation or other unlawful means, shall prevent or attempt to prevent any person from engaging in, remaining in, or performing the^ duties of any lawful employment or occupation; or if they singly or in combination conspire to prevent or attempt to prevent any person by threats, violence or intimidation, from engaging in, remaining in or performing the business, labor or duties of any lawful occupation or employ- ment ; or if they singly or in combination conspire to hinder any person who desires to labor from doing so, or hinder any person by threats, violence or intim- idation from being employed, or by such means hinder the owner, manager or proprietor for the time being from controlling, using, operating or working any property in any lawful occupation, or shall by such means hinder such persons from hiring or employing 1 General Statutes Conn., (i888) § 1518, chap. 99. 2Acts of Col., 1889, p. 92, § I. 232 STRIKES AS CONSPIRACIES. [§ 8. laborers or employes, all such persons shall be guilty of a misdemeanor, &c. ^ In Illinois, it is enacted that if persons shall com- bine for the purpose of depriving the owner or possessor of property of its lawful use and manage- ment, or preventing by threats, suggestions of danger, or any unlawful means, any person from being employed by or obtaining employment from any such owner or possessor of property, on such terms as the parties concerned may agree upon, the persons so offending shall be fined not exceeding $500, or be con- fined in the county jail not exceeding six months. 2. Or if any person shall by threat, intimidation, or unlawful interference, seek to prevent any other per- son from working or obtaining work at any lawful business on any terms he may see fit, such person shall be fined not exceeding $200. 3. Whoever enters a coal bank, mine, shaft, manu- factory, building or premises of another with intent to commit any injury thereto, or by means of threats, intimidation, or riotous or other unlawful doings to cause any person employed therein to leave his employment, shall be fined not exceeding $500, or confined in the county jail not exceeding six months, or both.^ In Indiana, any one preventing another by threats, intimidation or force from working or furnishing materials to any person, firm or jcorporation engaged in any lawful business, shall be fined not more than one hundred dollars, nor less than twenty, to which may be added imprisonment in the county jail not more than six months nor less than ten days. 1 Acts of Ga., 1887, No. 347, p. 107, § i. SAnnotated Statutes, 111., 1885, chap. 38, pars. 206, 207, 208. § 8.] MODERN DOCTRINE. 233 2. Any one who by threats, intimidation, or force, preyents or attempts to prevent any railroad company, or any of the agents, servants, or employes thereof from moving, running and operating the locomo- tives, cars and trains thereof, or from .transporting and carrying passengers or freight in its cars, or in like manner prevents or attempts to prevent any express company, common carrier, or persons engaged in transporting or carrying passengers or freight for hire from doing so, shall be fined not more than one thousand dollars, nor less than fifty dollars, to which may be added imprisonment in the State prison not more than twenty-one years nor less than two years, and be disfranchised and rendered incapable of holding any ofiBce of trust or profit for any determinate period. ^ In Louisiana, any person or persons, who may by violence or threats or in any manner intimidate and prevent another from shipping upon any steamboat within the state, or who shall in such manner inter- fere with or .prevent any person who is one of the crew of a steamboat from discharging his or her duty, or unlawfully interfere with any laborer who may be taking on board or discharging cargo from a steam- boat, shall be deemed guilty of a misdemeanor, and upon conviction before any justice of the peace of the state or Recorder of the city of New Orleans, shall be fined not less than twenty-one dollars and costs of "prosecution, and imprisoned not less than twenty days in the parish jail. ^ In Maine, it i. Bennett, 89 Ind. 457; 6 Am. and Eng. R. R. Cases, 391; Pitts., Cincinnati & St. Louis R. Co. v. Hollo- well, 65 Ind. 188; Sherman, Hall & Co. v. Pa. R. Co., 3 Am. and Eng. R. R. Cases, 274; Wertheimer z/. Pa. R. Co., 17 Blatchf. (C. C.) 421; i Fed. Rep. 232; 3 Am. and Eng. R. R. Cases, 279; Pitts., Ft. Wayne & Chicago R. Co. v. Hazen, 84 111. 36; Hass tj. Kansas City, Ft. Scott & Gulf R. Co., 7 So. East. Rep. 629; Gulf, Colo. & Santa Fe Ry. Co. i'. Levi, 76 Texas 337; 18 Am. State Rep. 45. 1 Reg. V. Hibbert ei al, 13 Cox C. C, 82. § 25.] FELONIOUS STRIKES. 321 among workingrinen throughout the United States, the workingmen in Chicago on the first of May, 1886, made a demand that eight working hours be recog- nized as a day's work. The demand was refused and the result was a general strike and lockout. As is invariably the case, the strikers undertook to prevent their places being filled by new employes. This led fco a conflict between them and the police, in the efforts of the latter to repel an assault of the former on the factory of McCormick. In this en- counter one or two strikers were killed and several wounded and a policeman seriously wounded and injured. The result of the encounter, however, was in favor of the police. This took place May 3, 1886, in the afternoon. There was evidence showing that most of the defendants were present in that riot or near by lending aid and encouragement to the rioters. In the afternoon of that day a circular, written by Spies, called the " revenge circular," was printed and numerously distributed, and it was printed the next day in the Arbeiter Zeitung. This circular was writ- ten in a style intended to and which did enrage the working people against all who had anything to do with preserving the public peace. In the Arbeiter Zeitung of May 4, 1886, was an inflammatory article written by Spies. It was headed : " Blood. " Lead and Powder as a Cure for dissatisfied Workmen 1 Wounded ! Thus are the Bight-hour Men to be intimidated 1 This is Law and Order ! Brave Grirls parading the City ! The Law and Order Beast frightens the Hungry Children away with Clubs ! " Then he proceeded : 322 STRIKES AS CONSPIRACIES. [§ 26. "Wage-workers, yesterday the police of this city murdered at the McCormick factory, so far as it can now be ascertained, four of your brothers, and wounded, more or less seriously, some twenty-five more. If brothers who defended themselves with stones, (a few of them had little snappers in the shape of revolvers,) had been provided with good weapons and a single dynamite bomb, not one of the murderers would have escaped his well-merited fate. As it was, only four of them were disfigured. That is too bad. The massacre yesterday took place in order to fill the forty thousand workmen of this city with fear and terror — took place in order to force back into the yoke of slavery the laborers who had become dis- satisfied and mutinous. Will they succeed in this ? Will they not find, at last, that they miscalculated ? The near future will answer this question. We will not anticipate the course of events with surmises." He then proceeds to state that at the time of the riot and just before it commenced he was present at an im- . mense meeting of workingmen a quarter of a mile from McCormick's factory. ~He thus describes the part he took in the meeting : "Then after a few more addresses were made, the president introduced Mr. August Spies, who had been invited as a speaker. A Pole or Bohemian cried out : ' That is a socialist ! ' and again there arose a storm of disapprobation, and a roaring noise, which proved sufiiciently that these ignorant people had been incited against the socialists by their priests. But the speaker did not lose his presence of mind. He continued speaking, and very soon the utmost quiet prevailed. He told them that they must realize their strength over against a little handful of lumber-yard owners ; that they must not recede from the demands once made by them. The issue lay in their hands. All they needed was resolution, and the 'bosses ' would be compelled to and would give in. § 25.] FELONIOUS STRIKES. 323 "At this, moment some persons in the background cried out (either in Polish or Bohemian) : ' On to Mc- Cormick's ! Let us drive oflf the scabs ! ' About two hundred men left the crowd, and ran toward McCor- mick's. " The speaker did not know what was the matter, and continued his speech. When he had finished he was appointed a member of a committee to notify the ' bosses ' that the strikers had no concessions to make. Then a Pole spoke. While he spoke a patrol-wagon rushed up towards McCormick's. The crowd began to break up. In about three minutes several shots were heard near McCormick's factory, and these were followed by others. At the same time about seventy- five well-fed, large and strong murderers, under the command of a fat police lieutenant, were marching towards the factory, and on their heels followed three patrol-wagons besides full of law and order beasts; two hundred policemen were on the spot in less than ten or fifteen minutes, and the firing on fleeing work- men and women resembled a promiscuous bush-hunt. The writer of this hastened to the factory as soon as the first shots were fired, and a comrade urged the assembly to hasten to the rescue of their brothers who were being murdered,- but no one stirred. * ■•• * The writer fell in with a young Irishman who knew him. 'What miserable sons of b are those,' he shouted to him, 'who will not turn a hand while their brothers are being shot down in cold blood ! We have dragged away two. I think they are dead. If you have any infiuence with the people, for Heaven's sake run back and urge them to follow you.' The writer ran back. He emplored the people to come along — those who had revolvers in their pockets— but it was in. vain. With an exasperating indifference they put 324 STRIKES AS CONSPIRACIES. ^ [§ 25. their hands in their pockets, and marched home, bab- bling as if the whole affair did not concern them in the least. The revolvers were still cracking, and fresh detachments of police here and there bombarded with stones were hastening to the battle ground. The battle was lost. "It was in the neighborhood of half -past three o'clock when the little crowd of between two and three hundred men reached McOormick's factory. Policeman West tried to hold them back with his revolver. A shower of stones for an answer put him to flight. He was so roughly handled that he was afterwards found about one hundred paces from the place, half dead, and groaning fearfully. The small crowd shouted : ' Gret out, you d — d scab,' ' you miser- able traitors,' and bombarded the factory with stones. The scabs were in mortal terror, when, at this moment, the Hinman-street patrol wagon, summoned by tele- phone, came rattling along with thirteen murderers. When they were about to make an immediate attack with their clubs, they were received with a shower of , stones. ' Back ! Disperse ! ' cried the lieutenant, and the next minute there was a report. The gang had fired on the strikers. They pretended, subsequently, that they shot over their heads. • But be that as it may a few of the strikers had little snappers of revolvers, and with these returned the fire. In the meantime, other detachments had arrived, and the whole band of murderers now opened fire on the little company — twenty thousand, as estimated by the police organ, the ' Herald,' — while the whole assembly scarcely num- bered eight thousand ! Such lies are told. With their weapons, mainly stones, the people fought with admi- rable bravery. They laid out half a dozen bluecoats, and their round bellies, developed to extreme fatness §25.] FELONIOUS STRIKES. 325 in idleness and luxury, tumbled about, groaning on tbe ground." The defendants. Parsons, Schwab, Pielden and Fischer, had been equally active, either in writing, making speeches or by personal entreaty, in trying to bring on a conflict. Louis Lingg was known to have made dynamite bombs after the instructions given in Host's book, and, on the evening of the 4th May, left a lot of them at a rendezvous of anarchists where anyone who desired to do so could help him- self. Pursuant to the revenge circular and advertise- ments and personal efforts of the defendants, a very large crowd of mostly workingmen assembled at the Haymarket, where inflammatory speeches were made by several speakers, among them Spies, Parsons and Fielden. While the latter was making the closing speech at about half-past ten o'clock in the evening one hundred and eighty policemen marched into the crowd from their station near by and ordered the meeting to disperse. Immediately a bomb was thrown into the ranks of the police, which exploded and killed six policemen, among them one Degan, and seriously wounded sixty othei*s. It was not known who threw the bomb, but it was conceded that no one of the defendants tbrew it. Pieces of the bomb were taken out of the bodies of the dead and a wounded by-stander, and they corresponded exactly with bombs that Lingg was known to have made. The defendants were indicted for the murder of Degan, and tried and convicted, and after appeals to the Supreme Court of Illinois and the Supreme Court of the United States, five of them suffered the death penalty. One was sentenced to imprisonment in the penitentary, and the govenor commuted the death 326 STRIKES AS CONSPIRACIES. [§ 25- penalty of one to imprisonment in the penitentiary. Lingg blew his head off with a dynamite cartridge the day before the execution. They were indicted under the statute of Illinois for aiding, abetting, assisting, advising and encour- aging the murder of Degan. Engle was shown to have been at home at the tinie of the explosion of the bomb, and Fischer was in a saloon a few steps from the wagon on which the speaking took place. But this undoubtedly was in pursuance of the plan of the revolutionists, or " Inter- nationals," which required parties planning an out- rage not to be present at its commission, but to leave the execution of the crime to one who is a stranger in the community. This is of course to avoid identifi- cation and arrest. On the subject of the absence of parties at the time of the commission of a crime the court said, " Where persons combine to stand by one another in a breach of the peace with a general reso- lution to resist all opposers, and in the execution of their design a murder is committed, all of the- com- pany are equally principals in the murder, though at the time of the act some of them were at such a distance as to be out of view, if the murder be in furtherance of the common design. Wharton on Homi- cide, (2d Ed.) section 358 ; Williams v. The People, 54 111., 422." Spies said in his testimony about the Revenge Cir- cular: " I wrote it to arouse the working people, who are stupid and ignorant, to a consciousness of the con- dition that they were in." In the circular was the following. " Avenge the atrocious murder which has been committed upon your brothers to-day, and which will be likely to be committed upon you to-morrow." The court says, "In the minds of ' stupid and igno- § 25.] FELONIOUS STRIKES. 327 rant ' workmen, already excited about the eight-hour day of labor, the language here quoted could mean nothing else than an attack similar to the one which took place in the south-west part of the city on Mon- day would probably be made upon the workingmen by the police on Tuesdaiy." The opinion quotes as follows: "He who inflames people's minds and induces them by violent means to accomplish an illegal object is himself a rioter, though he take no part in the riot. Regina v. Sharpe, 3 Cox C. C. 288." "One is responsible for what wrong flows directly from his corrupt intentions. * * * If he set in motion the physical power of another he is liable for its result. If he contemplated the result he is answer- able, though it is produced in a manner he did not contemplate. * * * If he awoke into action an indiscriminate power he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what he might have foreseen would be the understanding, he is respon- sible." 1 Bishop on Crim. Law, sec. 641. And then proceeds, " We can conceive that it can make no difference whether the mind is affected by inflammatory words addressed to the reader through the newspaper organ of a society to which he belongs, or to the hearer through the spoken words of an orator whom he looks up to as a representative of his own peculiar class," and cites Queen v. Most, L. R. 7 Q. B. D. 244. Schwab had been at the Haymarket in the early part of the evening, but a speaker being wanted to address a large meeting of workmen at Deering, he went to that place for that purpose, and was not present at the Haymarket at the time of the explosion. 328 STRIKES AS CONSPIRACIES. [§ 25. It was held that this fact did not lessen his responsi- 'bility for the death of Degan, if his acts and declar- ations helped to cause that death. Spies in his speech at the Haymarket said, "The fight is going on. Now is the chance to strike for the existence of the oppressed classes. The oppressors want us to be content ; they will kill us. The thought of liberty which inspired your sires to fight for their freedom ought to animate you to-day. The day is not far distant when we will resort to hanging these men (applause, and cries of 'hang them now!'). — — is the man who created the row Monday, and he must be held responsible for the murder of our brothers. (Cries of ' hang him ! ') Don't make any threats, they are^of no avail. Whenever you get ready to do some- thing, do it, and don't make any threats beforehand. There are in the city to-day between forty and fifty thousand men locked out because they refuse to obey the supreme will or dictation of a small number of men. The families of twenty-five or thirty thousand men are starving because their husbands and fathers are not men enough to withstand and resist the dicta- tion of a few thieves on a grand scale, to put out of the power of a few, men to say whether they should work or not. Would they place their lives, their happiness, everything out of the arbitrary power of a few rascals, who have been raised in idleness and luxury upon the fruits of your labor. Will you stand that ? " The speech of Fielden was in the same strain as that of Spies. Parsons said at the Haymarket, " What good are these strikes going to do .f Do you think that any- thing will be accomplished by them ? Do you think the workiugmen are going to gain their point ? No, § 25, 26, 27.] FELONIOUS strikes. 329 no, they will not. The result of them will be that yon will have to go back to work for less money than you are getting." The record recites, " Then he went on to say that it was not the individual always, but the system. That the government should be destroyed. It was the wrong government, and these people who supported it had to be destroyed eri masse. The temper of the crowd was extremely turbulent, especially after that speech he made about the workingman not gaining anything by the strike. The crowd seemed to be thoroughly in sympathy with the speaker, and ap- plauded almost every utterance." Neebe was a stockholder in the Arbeiter Zeitung, and next to Spies and Schwab the most active man in its management. He distributed the " Eevenge " (yr- cular Monday evening before the Haymarket disaster. He was also prominently connected with the " Inter- nationals." §26. Extortion. As has already been shown in section 9 in the case of the People v. Wilzig, money obtained by boycotting to pay the expenses of the boycott is extortion. § 27. Arson. It is arson for riototis strikers to set fire to a house. In England it was held that rioters could be prosecuted under the statute of 7 and 8, Geo. 4. c. 30, § 8 for setting fire to a house, without being indicted under § 2 of that statute for arson. Some riotous strikers from coal mines set fire to and otherwise injured the houses of two ministers, and were convicted under the above statute. It was also held that all rioters present were guilty.-^ 1 Regina v. Harris, ei al. Carr. &. Marsh. 66i; Regina v. Simpson, etal. Id. 669. See Reg. «. Sharpe, 3 Cox, C. C. 288. CHAPTER VII. LABOR ORGANIZATIONS. § 28. I/awfulness of. 29. Unlawful Organizations. § 38. Lawfulness of. The organizations here treated of are such as are created under statutes, and are either corporations or qilfisi corporations, or voluntary associations of work- ingmen for purposes which the mind will readily recognize as being just and proper. What has been written has been of organizations, for it would be impossible to have a strike of workmen without the existence of some plan, agreement or organization among them. Up to this point we have been treating of illegal organizations originated for special occasions. But the purpose now is to perform the more congenial task of treating of those kinds of organizations that are not tainted with crime, and the objects of which are praiseworthy. Of the two classes, master and servant, the latter were probably the first to organize. Organization first took place among the freedmen centuries ago, and was a matter of absolute necessity. They were brought into competition with slave labor, (which bore a striking resemblance to convict and other labor of our time) and were naturally driven into the towns and cities, where they took to what is known as trades, in contradistinction, to the farm labor performed by slaves. But these unions had a desperate § 28.] LABOR ORGANIZATIONS. 331 struggle for existence. They were anon encouraged and persecuted under tlie Romans. The Emperor Constantine was friendly to them and protected and encouraged them. The beneficial results to flow from such organizations were shown in ancient times. Mem- bers of trades-unions attained the highest proficiency in their various callings. They were compelled to, because of the fact that every Roman had a horde of slaves and there would have been little show for the freedman had he not possessed greater skill than the bondman. In England tlie right of organization among working people was not known until compara- tively recent times. Up to the year 1825 it was, under the common law, a criminal conspiracy for workmen to combine to increase their wages, or in fact to combine for any purpose against their masters. But the statute of 6 Greorge 4, c. 129, changed that. By the concensus of English authority heretofore cited, and which need not be repeated here, that statute legalized organiza- tions within certain limits, provided intimidation in any form did not enter into the combination. Workmen have the right to organize for their mutual aid, benefit and protection to resist the oppression of employers, to assist each other in sickness and in death, or when they are out of employment. ^ These are purposes that the mind will instantly recognize not only as lawful, but as praiseworthy and com- mendable. But the right of workmen to form organizations, or trades-unions as they are called, rests on more certain and stable authority than decisions of courts. In this country they are recognized and permitted both by national and state legislation. 1 Sweeny v. Torrence, ii County Ct. Rep. (Pa.) 497; i Pa. Dist. Rep. 622; Reg. ». Hewitt, 5 Cox C. C. 162. 332 LAWFUL. [§ 28. Congress has defined the term "National Trade Union " to mean " any association of working people haying two or more branches in the states or terri- tories of the United States for the purpose of aiding its members to become more skillful and efficient workers, the promotion of their general intelligence, the elevation of their character, the regulation of their wages and their hours and conditions of labor, the protection of their individual rights in the prose- cution of their trade or trades, the raising of funds for the benefit of the sick, disabled, or unemployed members, or the families of deceased members, or for such other object or objects for which working people may lawfully combine, having in view their mutual protection or benefit." * Articles of incorporation are to be filed in the office of the Recorder of the District of Columbia, giving the name by which it is to be known; they shall have the right to sue and be sued, plead and be impleaded, to grant and receive, in its corporate or technical name both real, personal and mixed property, and the pro- ceeds and income thereof for the purposes and objects as defined in its charter, provided that each union shall hold only so much real estate as may be neces- sary for the immediate purposes of its incorporation. That such unions shall have power to make and establish constitutions, rules and by-laws necessary to carry out their lawful objects, and to alter and amend the same at pleasure ; to define the duties and powers of their officers, prescribe the mode of their election, term of office, and establish branches and sub- unions in any territory of the United States; and that the headquarters of incorporated trade-unions shall be located in the District of Columbia. ' 1 Act of June 29, 1886, §§ 1-5; 24 Stat. L. 86; or in Cogley's Digest, page 157, par. 97-101. § 28, 29.] LABOR ORGANIZATIONS. 333 In Iowa, California, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Ohio, South Dakota, Wyom- ing and Kansas, provisions are made by statute for the incorporation of trade-unions, or the legality of such bodies is fully recognized . Probably such organizations could be made in all the states, under their general incorporation laws, or laws for forming benevolent voluntary organizations. But it is expressly provided that the objects of the organizations must be lawful, such as mutual aid and assistance, in securing by lawful means advance of wages, individual and collective intellectual and moral improvement, increased skill and proficiency in trades and callings, the care of the sick and burial of the dead, the support of members out of employment, and the support of widows and orphans of deceased members. Men in other lines of business have similar organizations and there is no good reason why the laboring classes should not. § 29. Unlawful Organlzatious. But the law will not permit a lawful organization to be used for an unlawful purpose. It will permit men to organize to advance their interests, but it will not permit them to organize to invade the rights of others. The law has no pets or favorites; all must stand, so far as legal rights are concerned, on the same broad plain of equality. Hence it is no protec- tion to a member of a legal organization to attempt to carry out any of its lawful purposes in an unlawful manner, and all members participating therein are guilty of a criminal offense.^ Where the ostensible purpose of an organization is legal, but the real secret purpose illegal, then the organization is unlawful.^ 1 Commonwealth v. Hunt, 4 Mete. (Mass.) iii. ' 2 Commonwealtli v. Hunt, 4 Mete. (Mass.) iii. 334 TJNLAAVFUL. [§ 29 But where the purposes of organizations of working- men are to be accomplished by illegal means, by vio- lence, intimidation and destruction of property, or the overthrow of government or systems of society and property, then such organizations are illegal, for they are in reality treasonable. Of such organizations are the " International Workingmen's Association " and the " Lehr und Wehr Verein " of Chicago.^ , In Eng- land it has been held that organizations of working- people which require its members to take, on initiation into them, an unlawful oath, such as, " you shall be true to every journeyman shearman, and not to hurt any of them, and you shall not divulge any of their secrets, so help you Grod ; "^ or " we of our own free will declare we will not make any buttons under 6 d. and 10 d., that we will keep all the secrets of the lodge, and never give our consent that any of the money should be divided or appropriated to any other purpose than the use of the union ; if we did might our souls drop into the bottomless pit ; "'^ or, the wit- ness not being able to remember the exact words, but remembered in substance that something was said about their souls dropping into the bottomless pit if they did not keep secret what was done by the society;* previous to taking the oath the parties being blindfolded led to a table and required to kneel, and after taking the oath unblindfolded and required to look upon the picture of death or a skull and cross-bones, were illegal oaths under the act of 57 Geo. 3, c.'s 19, 123 and 137, and that such organizations were illegal. Also 1 Spies et a/, v. The People, 122 111., 1-267. 2 King V. Marks, 3 East, 157. 3 Rex. V. Ball, 6 Carrington & Payne, 563. 4 Rex. !). Lovelass, 5 Carrington & Payne, 596; Rex. v Dixon 6 Id., 601. ' § 29.] LABOE ORGANIZATIONS. 335 tliat a trade-union the main object of which was the support of members when on a strike did not come within the statute legalizing friendly societies, and were illegal as being in restraint of trade, by encour- aging strikes and preventing men working during a strike.^ 1 Hornby z/. Close, Law Rep., 2 O. B., 153; Farrar v. Close, Law- Rep., 4 Q. B., 602. CHAPTER VIII. CIVIL REMEDIES — AT LAW. §30. Enticing servants — preventing completion of contracts. 31. Against employes conspiring to quit work. 32. Damages by boycott. § 30. Enticing Servants— Preventing Completion of Contracts. . We liave been considering heretofore the liability and remedies of employes and employers from a criminal standpoint. In criminal law the intention of parties is looked at, and as a rule if there is no wrongful or unlawful intention there is no criminal liability. But when it comes to civil remedies the rule is different; then a party is liable in damages for inadvertence, carelessness, or mistake where there is no intention to do a wrong, as well as where there is an evil or malicious intention, or such a reckless disregard of the rights of others as to amount to such intention. When it comes to civil remedies the great question is, has one party suffered injury, loss or damage by the acts of some other party? In such cases, or rather in a certain class of such cases, the only figure that intention or malice has to do with them is either to increase or mitigate the damages. In considering the criminal phase of strikes we have seen that it is not now, as a general rule, unlawful to persuade or entice employes to quit the service of their employers, but' when it comes to considering the civil aspect of the case it is quite ad^fferent thing § 30.] CIVIL REMEDIES — AT LAW. 337 There is no better established rule of the common law, than that a master has a right of action for damages for enticing away his servants. Every person sui juris has a right to make use of his labor in any lawful employment on his own behalf, or to hire it out in the service of others. This is one of the first and highest of civil rights. ^ It therefore follows as a logical sequence, that a workman having disposed of his property — his labor — to his employer, is legally bound according to the terms of his contract to surrender that property to his employer ; and who- ever persuades or entices him to withdraw his services from his master in violation of a contract commits a tort for which he is answerable in damages.® We are not without adjudicated cases on this and all other questions of damages, for infringing the rights of employers by strikes, and do aot have to rely on abstract reasoning. An action for tort will lie for enticing away journeymen shoemakers from a manu- facturer and thereby rendering it diflBcult or impossible for him to carry on his business ; or to induce shoe- makers who have entered into a contract to make a certain quantity of shoes out of material furnished by the manufacturer and return the shoes to the factory, to return the stock unfinished; or inducing shoemakers who have made a contract to make a certain number of cases of shoes by a certain time to quit the employer's service and refuse to perform their contract;* for inviting the workmen of a piano manufacturer to dinner, getting them intoxicated and while in that 1 Cpoley on Torts, 2d Ed. 326. 3 Wood's Master and Servant, §§ 230, 231; Harvester v. Meinhardt 9 Abb. N. C. (N. Y.) 393; Bixby v. Dunlap, 56 N. H. 456; Haskins ®. Royster, 70 N. C. 601 ; Hart «. Aldridge, i Cowper, 54. 3 Walker ». Cronin, 107 Mass., 553- 338 THE LAW OF STRIKES. [§ 30. condition inducing them to quit tlie service of their , employer for whom they worked by the piece and not for a specified time, and entet that of the person entic- ing them, a rival piano manufacturer ; ^ for procuring a strike of wor,kmen in the employ of a steamship company to prevent it from carrying on its business as a common carrier, using or employing its vessels and lighters;^ for enticing away and receiving into his employ a maker of white glazed brick, with notice that the workman was bound by written contract to work for a specified time ; ^ for by persuasion and threats inducing plantation laborers from renewing and to abandon their contracts to work on a plantation whereby it remained uncultivated for one year, this being done to render worthless the lease to the plan- tation of the employer ; * for enticing a farm laborer to quit the service of his employer before the expiration of his contract time of service, the person so enticing having knowledge of the contract ; ^ for enticing away freedmen servants who had agreed in writing to work on a plantation, but which had not been approved by the Freedman's Bureau.^ Sut an action will not lie for inducing a servant to quit the service of his master on the expiration of the time for which he was hired -^ nor for a conspiracy of persons to cont,rol the business of shipping-masters of a city by requiring members to conform to certain rules and rates, and to prevent their boarders from shipping in 1 Gunter ». Astor, 4 Moore Rep. (Eng.) 12. Contra. Rogers s. Evarts, 17 N. Y. S. 264. , 2 Old £>omimoa Steamship Co. ». McKenna, 30 Fed. Rep. 48. 3 Bowen «. Hall, 5 Q. B. Div. 333. * Dixon «. Dixon, La. Ann. 1261. B Jones V. Blocker, 43 Ga. 331. 6 Salter ». Howard, 43 Ga. 601. 7 Boston Glass Manufactory e. Binney, 4 Pick. (Mass.) 425. § 30, 31.] CIVIL REMEDIES — AT LAW. 339 any vessel where any of the crew are shipped from boarding-houses not in good standing with the associ- ation, and to abstain from shipping men from any office af t.er the association shall have suspended busi- ness with it, and who in pursuance thereof take their men out of ships because men of a certain party are in the same and preventing men from shipping with that party unless illegal acts are shown.^ In the states of Arkansas, Kentucky, Louisiana, Mississippi, in addition to criminal liability, a party enticing an employe bound by contract for a specified time, such party having knowledge of such contract, away from his employer before the expiration of his terih of service, is made liable by statute, to the employer for double the amount of damages sustained, except in Kentucky, where he is liable only for the damages sustained; and in Tennessee he is liable if he does not have knowledge of an existing contract, if he does not discharge the person hired after notice that he is under contract to another person. § 31. Against Employes Conspiring to Quit Work. An action for damages will lie against journeymen tailors who, pursuant to a conspiracy among them- selves, simultaneously stop work and return to their employer work in an unfinished state, when the employer could not get workmen to complete the gar- ments, thus rendering them worthless f and against members of an association of Freestone Cutters, to recover back a fine assessed against and paid by a member at Boston, Massachusetts, for having some stone-cutting which he was under contract to furnish for use in the building of the Roman Catholic Cathedral 1 Bowen ». Matherson, 14 Allen (96 Mass.), 499- SMapstick ». Ramge, 9 Neb,, 390; 2 Northwest Rep., 739. 340 THE LAW OP STRIKES. [§ 31, 32. at Boston done in New York city, because lie could not get members of the association to do the work when he had the material.^ The payment of the fine was enforced by a strike of his workmen. § 33. For Damages by Boycott. A civil action will lie for damages resulting from a boycott. Thus an action was sustained for injuring the business of a steamship company as a common carrier, by inducing its employes to quit work in a body for the purpose of injuring its business as a common carrier, and preventing it getting new em- ployes, and to shut off all dealings with other persons by sending threatening notices or messages to various steamship lines, to wharfingers and warehousemen usually dealing with it, designed to intimidate them through fear of loss, by means of which they refused to perform existing contracts and withheld further dealings with it.^ Also where members of a trade- union boycotting an employer to compel him to con- form to the rules of the union as to the employment of apprentices and delinquent members boycotted a material man for continuing, despite threatening notices sent him, to siipply material to the employer. Held that an action would lie against the union and all its members engaged in the conspiracy.^ But where firms of shipowners trading between China and Europe, for the purpose of obtaining a monopoly of the tea trade formed themselves into an association and offered to merchants and shippers in China who shipped their tea exclusively in vessels belonging to ICarew v. Rutherford, io6 Mass., i. 2 Old Dominion Steamship Co. v. McKenna et al, 30 Fed. Rep. 48. SMoores & Co. ■». Bricklayers' Union No. 1, 23 Weekly Law Bui 48. § 82.]. CIVIL REMEDIES— AT LAW. 341 members of the association a rebate of five per cent, on all freights paid by them, rival shipowners also trading between China and Europe were excluded from the association, and in consequence thereof sustained great damages and were driven out of the carrying tea trade. They undertook to act independantly of the association, and loaded their ships already in China with tea at ruinously low rates of freight rather than have them sail home empty. The association knowing they could not carry freight at such prices, in order to put a stop to it sent letters to the merchants and shippers in China, say- ing that such of them as refused or failed to ship exclu- sively in vessels belonging to members of the associ- ation would lose all benefit from the trade that had theretofore accrued to them from the members of the association. The rival shippers seeing that they could not again carry freight at such low rates brought action against the members of the association for damages for compelling the merchants and shippers in China, by said letters, from shipping in their vessels. Held, that as the association was formed with a view of keeping the trade in their own hands and not with the intention of ruining the trade of the plaintifi's, or through any personal malice or ill-will towards them, an action for conspiracy was not maintainable. That acts done in the ordinary course of trade are not actionable. ^ 1 The Mogul Steamship Co. v. McGregor, 23 Law Rep. Q. B. Div. 598; 21 L. R. Q. B. D. 544; 15 L. R. Q. B. D. 476. CHAPTER IX. CiyrL REMEDIES. — IN EQUITY. § 33- By Injunction. 34. By Mandamus. 35. Receivers. — Contempt of Court. § 33. By Injunction. An injunction will lie to restrain boycotts^ and picketing for the purpose of preventing by intipaida- tion, molestation or coercion in any form, employes from entering tlie service of an employer. This will be done to stop proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate, destruction of property.'^ Acts which amount to a nuisance, such as carrying intimidating banners, with inscriptions calculated to injure one's business or deter workmen from entering or continu- ing in the service of an employer, in front of the employer's place of business,^ or any acts of intimida- tion calculated fe) injure one's business, provided they exist and continue at the time of the application or 1 Brace Bros. v. Evans, 3 R. and Corp. I,aw J. 561; Casey v. Cin- cinnati Typographical Union, No. 3, 45 Fed. Rep., 135; 12 I,. R. A., I93; State B. Glidden, 55 Conn., 46; Moores& Co. v. The Bricklayers' Union No. i, 23 Weekly L,aw Bui., 48; Springhead Spinning Co. v. Riley, 6 Law Rep. (Bng. Eq.), 551; Mogul Steamship Co. v. McGregor, 15 I/. R. Q. B. D., 476; 23 Id., 598. (For a statement of these cases , see section 9 ante.) 2 Perkins v. Rogg, 18 Weekly Law Bui., 32; Rogers 0. Evarts, 17 N. Y. S.. 264. S Sherry v. Perkins, 147 Mass., 212. § 33.] CIVIL REMEDIES — IN EQUITY. 343 hearing, will be enjoined.^ Equity will also interfere to restrain the use of the funds of an industrial society in aid of a strike.^ An interim injunction was granted to restrain the publication of placards and circulars falsely representing that a strike was on at a certain manufacturing establishment, which injuriously af- fected its business.^ An injunction was entertained to restrain a combination of persons from interfering with and preventing the shipping of a crew on a vessel, as being in restraint of trade and commerce under section 1 of the Act of Congress of July 2, 1890, 26 Stat. L. 209, known as the interstate commerce act. Held, that the injunction would lie to prevent a multiplicity of suits at law, and for the reason that damages at law for interrupting the business and intercepting the profits of pending enterprises and voyages must, in their nature, be conjectural and not susceptible of proof and there was not an adequate remedy at law.* The circuit courts of the United States have jurisdiction to restrain violations of the interstate commerce law to the irreparable injury of complainant, without regard to the citizenship of the parties. Therefore a combination to induce the officers of a common carrier corporation subject to the provi- sions of the interstate commerce law, and its locomo- tive engineers, to refuse to. receive, handle, and haul interstate freight from another like common carrier, in order to injure the latter, is a conspiracy described in section ten of the interstate commerce act, and all 1 Sweeny v. Torrence, ii County Ct. Rep., (Pa.) 497; i Pa. Dist_ Rep., 622. 2 Warburton v. Hiddlesfield Industrial Society, i Q. B. Div., (1892) 213. 3 Collard v. Marshall, Law Rep., [Eng.] [1892] i Ch. 571. i Hagan, et al. z/. Blindellet, et al., 54 Fed. Rep. 40; 56 Id. 696. 344 THE LAW OF STRIKES. [§ 33. persons engaged in it are guilty, and the common carrier against which the conspiracy is directed has a cause of action against those participating in it. If the injury will be irreparable a preliminary and tem- porary mandatory injunction will issue against the company and its employes threatening the injury, restraining them from refusing to afford the proper interchange of interstate freight and traffic facilities. Also a preliminary injunction may issue against the chief member of such a conspiracy to restrain him from giving the order and signal which will result and is intended to result in unlawful and irreparable injuries. Where such chief member has already issued such an unlawful, willful and criminal order, the injurious effect of which will be continuing, the court may by mandatory injunction compel him io rescind the same, especially when the necessary effect of the order or signal is to induce and procure flagrant violations of an injunction previously issued.^ Where a labor organization has declared a boycott against a railroad, and connecting roads are therefore refusing or seem about to refuse to afford equal facilities to the boycotted road, in violation of section three of the^ interstate commerce act, they may be compelled to do so by mandatory injunction, since the case is urgent, the rights of parties free from reasonable doubt and the duty sought to be enforced is imposed by law. Such injunction is binding upon all officers and employes of companies enjoined having notice thereof, whether they are made parties or not.'' Where an injunction is asked against the inter- ference with interstate commerce by combinations of striking workmen, the fact that the strike has ended 1 Toledo A. A. & N. M. Ry. Co. v. Pa. Co., 54 Fed. Rep., 730. 2 Toledo A. A. & N. M. Ry. Co. v. Pa. Co., 54 Fed. Rep.', 746. •§ 33.] CIVIL EEMEDIES — IN EQUITY. 845 and labor been resumed since the filing of the bill is no ground for refusing the injunction. The court said, " I know of no rule which is better settled than the question as to the maintenance of a bill, and the granting of relief to a complainant is to be deter- mined by the status existing at the time of filing the bill. Rights do not ebb and flow. If they are invaded, and recourse to courts of justice is rendered necessary, it is no defense to the invasion of a right, either admitted or proved, that since the institution of the suit the invasion has ceased." The combination declared illegal by the interstate commerce act applies to combinations of laborers as well as capi- talists. And the fact that the combination is in its origin and general purposes innocent and lawful is no ground of defense when the combination is turned to the unlawful purpose of restraining interstate and foreign commerce. A combination of men to secure or compel the employment of none but union men becomes a combination in restraint of interstate com- merce within the meaning of the statute, when in order to gain its ends it seeks to enforce, and does enforce by violence and intimidation, a discontinuance of labor in all departments of business, including the ' transportation of goods from state to state, and to and from foreign nations. ^ A court of equity will not interfere by injunction to restrain a committee of an illegal trade-union from expelling one of its members. ^ An injunction will lie to restrain a trespass to the property of an employer by employes on a strike, '"^ 1 United States v. Workingmen's Amalgamated Council of New Orleans, (C. C.) 54 Fed. Rep. 994. 2 Rigby ». Connel, 42 Law Times Rep. (N. S.) 139. 3 New York, Lake Shore & "\Vest. R. Co. v. Wenger, 17 Weekly Law Bui. 306. 346 THE LAW OF STRIKES. [§ 33, 34. and to restrain a combination of persons from enticing away servants, if violence, force, intimidation or coercion is • used against the workmen. ^ Also to restrain members of a society known as the " London West End Farriers' Trade Society " from using its funds in carrying out an amalgamation of the society with the " Permanent Amalgamated Farriers' Protec- tion Society." While it was admitted that the first named society, but for the statute of 34 and 35 Vict. c. 31, would have been ian unlawful association, as some of its purposes were in restraint of trade, yet by virtue of said statute the plaintiffs having con- tributed to the fund were entitled to prevent a mis- application thereof. The rule in Rigby b. Connol held not to apply in this case. ^ § 34. By Mandamus. Mandamus will lie to compel members of an unin- corporated and voluntary lawful association of work- men receiving and depositing in their own names as trustees, in a bank, money of such association, to dr^w an order on said bank in favor of a committee thereof, and appointed for the purpose to enable the association to withdraw its funds. ^ But where there are two separate bodies of men applying to be regis- tered under the same name as a trade union, under and by virtue of the trade union act of 1871, (34 and 35 Vict. c. 31), the registrar cannot be compelled by mandate to register either. * Mandamus was refused to compel a board of supervisors of a county to pay the expenses of the sheriff in protecting property 1 Harvester p. Meinhardt, g Abb. New Cases (N. Y.) 393. 2Wolfe V. Matthews, L. R. 21 Ch. Div. (1882) 194. 3 Snow !). Wheeler, 113 Mass. 179. 4 Queen ®. Registrar of Friendly Societies, Law Rep. 7 Q. B. 741. § 34, 35.] CIVIL REMEDIES — IN EQUITY. 347 thought to have been in danger during a strike, which had been paid to the sheriff by the owner of the property, and to whom the sheriff assigned the bill, for the reason that there was no attack or threatened attack upon the property, the strikers not having disturbed it. ^ § 35. Receivers— Contempt of Court. A receiver appointed by a court of equity represents the court in the management of property which in law is considered in the possession of the court. The receiver also represents the court in employing, discharging and managing the employes necessary to care for and use the property placed in his hands for the purposes for which a receiver is appointed. The court, therefore, will hear and determine disagree- men,ts and controversies between a receiver and employes under him, and make such orders in respect thereto as right and justice may require.® The court may give advice to the receiver or employes, or both, and direct the receiver whom to discharge or employ, and arrange the terms of the contract. ^ It is punishable as a contempt of court for employes of a railroad company, members of labor organizations, or any one else, to interfere with or molest by violence, or threatened violence, threats expressed or implied, or intimidation in any form, the receiver in the man- agement of the road, with its rolling-stock or other property, or by said means, and by overawing by preconcerted demonstrations of force by assembling 1 People ex rel. Nichols v. Bd. Supervisors Queens Co. 15 N. Y. Sup. 461. 2 Frank ». Denver & R. G. Ry. Co., 23 Fed. Rep. 757; In re Doolittle 43 Fed. Rep. 544; Waterhonse v. Corner (C. C.) 55 Fed. Rep. 149. ' 3 Waterhouse 9. Corner (C. C.) 55 Ped. Rep. 149; Frank et al ^. Denver & R. G. Ry. Co. (C. C.) 23 Fed. Rep. 757. 348 THE LAW OF STRIKES. [§ 35. in large numbers, interfering with and molesting the employes in the discharge of their duties. ^ While as a general proposition, railroad like all other employes have the right to quit when they please if they have not entered into a contract for a specified time, yet in their case the proposition is subject to qualifications and exceptions, especially when considered in the light of the interstate commerce law. Under certain cir- cumstances some classes of such "employes may quit the service of a company to avoid obeying an order of court which they know has been made with- out being guilty of contempt. Bat the quitting must be actual and in good faith, and not pretended, as a trick to escape obeying the order. An injunction is binding on the employes of a road as well as upon the officers, whether they are made parties to the pro- ceedings or not. Therefore, where, during a strike and boycott by a trade-union and railroads and their employes against a common carrier railroad having the right to transport over connecting roads inter- state freight and passengers, a locomotive engineer (a member of the " Brotherhood of Locomotive Engi- neers," which organization was conducting the boycott, knowing or having the means of knowing that an injunction had been granted by the court restraining interference with or obstruction of interstate freight in the cars of the boycotted common carrier) refused to haul over the connecting road a car of the boycotted road loaded with interstate freight, until he received orders to do so from the "Brotherhood pf Locomotive Engineers," was guilty of contempt of court. The engineer claimed that he was not liable for contempt, 1 In re Doolittle, 23 Fed. Rep. 544; United States v. Berry et al, 24 Fed. Rep. 780; In re Wabash R. Co. 24 Fed. Rep. 217; United States ». Kane, 23 Fed. Rep. 748. § 35.] OIVIL REMEDIES — IN EQUITY. 349 for the reason that he had quit the service of his company at the time of the alleged contempt. In reference to that the court said, " I cannot conceive of any principle of law under which such conduct can be justified. An engineer cannot be permitted to pretend to quit the service of his company in the manner stated, with his train on the main track ten miles from his destination, and for the evident pur- pose of evading an order of court which was equally in force against employer and employe. If such an abandonment of service could be excused in law it would leave this great corporation, operating 1,500 miles of railway, and moving several hundred trains of cars per day, at the mercy of its employes, and subject the public with its multitude of interests and rights to irremediable injuries and losses. Upon the facts of the case made against engineer James Lennon I find that he did not quit the service of the company in fact, and did not intend to do so, and that his pretense to do so was a trick to evade the order of the court. Being in the service of the company when he ' refused to switch the Ann Arbor car into the train at Alexis, and having then full knowledge of the terms and meaning of the order of court, that order was then in fall force and com- manded him to do the very thing he refused to do. He, therefore, deliberately and knowingly violated the mandate of the court and was guilty of con- tempt." ^ Contempt being a criminal offense, a United 1 Toledo A. A. & N. M. Ry. Co. v. Pa. Co., 54 Fed. Rep. 746, 730. Lennon was committed to the custody of the United States mar- shall for failure to pay the fine assessed against him for contempt. He sued out a writ of habeas corpus in the United States Circuit Court for the Northern District of Ohio, the decision of which was adverse to him. From that decision he appealed to the Supreme Court of the United States. The Circuit Court certified to the Supreme Court for its decision the following points:— I. Is the suit in which the order was made one arising under the 360 THE LAW OF STRIKES. [§ 35. States court has not jurisdiction over it out of the district where it was committed. ^ constitution or laws of the United States? 2. Did the court have jurisdiction of the person of the petitioner by reason of his having had sufficient notice of the proceedings and orders set out in the petition? 3. Was it beyond the jurisdiction of a court of equity to issue the orders made in said case? November 27, 1893, the Supreme Court, by Chief Justice Fuller, declined to interfere on the ground that the court did not have jur- isdiction, and the appeal was dismissed. It is a well-known rule that an appeal will not lie from the order of a court assessing punishment for contempt. The appeal in this case was not from such order, but from a refusal of the court mak- ing it to entertain a petition of habeas corpus based on the ground that the court did not have constitutional authority and jurisdiction to render such decision. When the cobwebs are brushed away it looks like a ruse to escape the rule of law inhibiting an appeal from a judgment for contempt. The petitioner denying the jurisdiction of th,e court to order him into the custody of the marshall for refusing to pay a fine of fifty dollars, admits, by filing his petition in that same court, its jurisdiction to issue a writ of habeas corpus, and asks the court to pass judgment on the validity of its own acts; having assumed the jurisdiction forced upon it,and having rendered a decision as it certainly must have been expected would have been done, appealed from that decision. On this ghase of the case the Supreme Court of the United States says that the jurisdiction invoked by the petitioner to discharge him from custody carried with it the jurisdiction to remand as well as discharge, or the power to hear and determine whether he was lawfully held in custody. On the question of appeal the court bases its judgment on the precedent of Cross i). Burke, 146 U. S., 82, a case of homicide arising in the District of Columbia, in which a careful examination was made of the various statutes relating to appeals from judgments of Circuit Courts on habeas corpus. Held, that the case did not come within any of the classes of cases in section 5 of the act of Congress of March 3, 1891, in which appeals may be taken, and particularly in that class " in which the jurisdiction of the court is in issue; in such case the question of jurisdiction alone shall be certified from the court below to the Supreme Court for decision." That neither could the case be brought within the class of cases in which the construction of the Constitution is involved, or that the petitioner was deprived of his liberty without due process of law. Ex parte li^anon, October Term, 1893. 1 Frank ». Denver & R. G. Ry. Co., 23 Fed. Rep. 757. CHAPTER X. DELAYS -^TRANSPORTATION — BUILDING — SHERIFF'S EXPENSES. § 36. Liability of railroads for. 37. Liability in case of vessels. 38. Liability of contractor for delay in building. 39. Liability for sheriff's expenses in protecting property during §36. Liability of Railroaas For. Following the common law, that a common carrier is liable for loss or damage to property entrusted to it for transportation whether arising from the fault of its employes or not, it was decided in ISTew York in 1859 that a railroad company was liable for the damages to a cargo of potatoes arisihg from delay in reaching the place of its destination caused by a strike of the engineers of the company, without the slightest fault on the part of its officers. ^ The same rule would have been applied in a later case had not the liability of the carrier been limited in the contract by exemption from delay from strikes. ^ In Missouri, in 1875, in a case similar to that of Blackstock v. The N. Y. & Erie R. Co., it was held that the railroad company was liable notwithstanding the fact that it was stipulated in the bill of lading that the potatoes were to be shipped at the owner's risk of freezing. That while a railroad company may by special contract limit its common law liability, yet it cannot exempt itself from the 1 Blackstock v. N. Y. & Erie R. Co., 20 N. Y. 48. 2 Del., L. & W. R. R. Co. v. Bowns et al, 58 N. Y. 573. 352 THE LAW OF STRIKES. [§ 36. consequences of its negligence, and that the sudden refusal of its employes to work will not excuse a rail- road company for failure to transport freight in the usual time. ^ This doctrine is held in Colorado. ^ But in 'New York, in IBS'?, in an action against a railroad' company for damages to hogs and cattle caused by delay in shipment resulting from a strike of former employes, it was held that the company was not liable. ^ The acts of the strikers were such that it was utterly impos- sible for trains to be run until the strike ceased. It was held that when the strikers quit the service of the railroad company they ceased to be its employes for whose acts it would be responsible. That the fact that • the strike was organized while they were in the employ of the company made no difference, for the conspiracy was outside of their employment and did not impose any liability upon the company. The same doctrine was laid down in Illinois,* Indiana,^ Pennsylvania,* and Texas.'^ In these states are the great railroad systems of the United States, and the decisions in them may be said to settle the general rule of law as to the liability of railroad common carriers for delay 1 Read ». St. I,ouis, Kan. City & Northern R. Co., 6o Mo. 199. 2 I/ewis V. I/udwick, 5 Colo. 368; 98 Am. Dec. 54. 3 Geismer v. I,ake Shore & Michigan Southern R, Co., 102 N. Y. 563; 55 Am. Rep: 837. i Indpls. & St. Ivouis R. Co. 0. Juntgea, 10 Bradwell, (111.) 295; Pitts. Ft. Wayne & Chicago R. Co. v. Hazen, 84 111. 36; 25 Am. Rep. 422. B Pitts. Cin. & St. Louis Ry. Co. ». HoUowell, 65 Ind. 188; 32 Am. Rep. 63; Bartlett ■B. Pitts. Cin. & St. Louis R. Co., 94 Ind. 281; 18 Am. and Eng. R. R. Cases, 549; Lake Shore & Mich. So. R. Co. v. Bennett, 89 Ind. 457; 6 Am. and Eng. R. R. Cases, 391. 6 Sherman, Hall & Co. ». Pa. R. Co , 3 Am. and Eng. R. R. Cases, 274 (U. S. C. C); Wertheimer v. Pa. R. Co., 3 Am. and Eng. R. R. Cases, 279; 17 Blatchf. (U. S. C. C.) 421. 7 Gulf, Colo. & Santa Fe R: Co. v. Levi, 76 Texas, 337; 18 Am. St Rep. 45- See Hass v. Kan. City & F. S. G. R. Co., 7 So. East. Rep. 629. § 36, 37.] DELAYS. 353 in transporting merchandise when caused by strikes. The only exception to the common law made as to the liability of a common carrier was in the case of an act of Grod or the king's enemies. ^ In the cases just cited the strikers were so numerous and their acts so violent that not only the railroad companies and civil authorities were unable to control the mobs, but fre- quently the militia of the states 'was unable to do so. Therefore the strikers could well be considered public enemies, and brought the companies within the com- mon law exception, " the king's enemies." The strikers were no longer employes. By the act of striking they took themselves out of the service of their employers. From the vindictive manner in which the strikes were conducted, and the great losses sustained by the companies, there could be no suspicion of collusion between the strikers and the railroad companies. The weight of authority is, that a railroad company is not liable for loss or damage caused by delay in trans- porting property entrusted to it when such delay is caused by striking former employes of the road who conduct the strike so violently and tumultuously as not only to put it out of the power of the company to control and manage its property and run its trains, but also overawe and overpower the civil and military authorities. But there can be no question that the strikers are individually and collectively liable. § 37. Liability in Case of Tessels. Where a charter-party provided that a certain vessel should proceed to a port in the Azof sea, where it should be loaded with a cargo of wheat, and then 1 Forward v. Pittard, i Durnford & East, 27. 354 THE LAW OF STRIKES. [§ 37. proceed to a port of discharge in England, and that the freighter's liability should cease when the cargo was shipped, the owner or his agent having an abso- lute lien on the cargo for freight, dead-freight, demurrage and lighterage at the port of discharge ; and that a bill of lading known as the 1885 should be used under the chai^ter and its condition form part thereof; the master signing bills of lading as pre- scribed in the charter, but containing no reference to the charter nor any clause which would relieve the ' consignees from loss to the ship occasioned by strikes, but providing that the goods were to be applied for within twenty-four hours after the ship's arrival, otherwise the master was to be at liberty to land the cargo in lighters at the risk and expense of the, owners; the vessel arrived in London August 14th, and the consignees duly demanded the cargo, but did not send barges to receive it until the 16th, when the unlbading proceeded with reasonable dispatch until the 20th, when the dock laborers struck ; the strike extended next to the lightermen, and on the 23rd of August became general and lasted until September 16th ; after that date the unloading being completed. It was held in- an action by the shipowner against the charterers and consignees for demurrage and damage for the detention of the vessel, that the lia- bility of the freighters ceased on the arrival of the vessel at the port of discharge ; that although the consignees were bound to discharge within a reason- able time, they had done all that they could do under the circumstances, and the maxim lex non cogit ad impossibilia applied ; that reasonable time meant reasonable in ordinary circumstances, not in extraor- dinary ones beyond the* control of the consignees; § 37.] DELAYS. 355 and that as the delay was not caused by them or their agents or servants they were not liable.^ But where a cargo was shipped under a bill of lading incorporating a clause in the charter-party which tixed the number of lay days for unloading and allowed time for demurrage, but neither the bill of lading nor charter-party contained any. exception as to strikes; and by the custom of the port of discharge a cargo such as that to be unloaded was discharged by the joint act of the shipowner and the consignees; that during the lay days a strike took place both among the laborers employed on behalf of the ship and those employed by the consignees, with the result of stopping the unloading which could not be resumed until some time after the expiration of the lay days fixed in the charter-party; held that as the number of lay days were fixed, the consignees were liable to pay demurrage, notwithstanding the inability of the ship- owners, owing to the strike, to do their part of the unloading.^ The charterers were not liable to the shipowners for delay in discharging freight occasioned by a strike of the dock laborers, where by the terms of the charter-party the cargo was "to be discharged with all dispatch as customary, and ten days on demurrage over and above the said lay days at 6d. per net register ton per day," the custom of tlie port of discharge being that the dock company undertook the work of discharging cargo. It was held that the effect of the charter-party was not to fix any definite time within which the cargo must be discharged, but to provide that it should be discharged with all reasonable dispatch, having regard to the circum- 1 Hicks V. Rodocanchi, 2 Q. B. D., (i8gi) 626; Le^w Times Rep., (N. S.) 300; 4 Alb. Law J„ 462. 2 Budgett & Co. V. Bianington & Co., L. R. Q. B„ (1891) 35. 356 THE LAW OF STRIKES. [§ 38, 39. stances and the manner of discharging cargo cus- tomary at the ^ort of discharge.^ § 38. Liability of Contractor for Delay in Building. A building contract provided for; ten dollars dam- ages per day for delay in the completion of the work after a certain day, if it should " arise from any default on the part" of the contractor, delay from strikes being excepted. The sub-contractor for the woodwork made a like agreement with the contractor, and gave him a bond for the strict performance of . his agreement. There was a delay of one hundred and thirty days in the mason work on which the wood- work was dependent, for which the sub-contractor was not responsible. Within that time the owner availed himself of a provision of the contract that, if suffi- cient material or workmen were not supplied he might finish the work and deduct the expense ; the work was done and completed by him and the build- ing occupied forty days after the expiration of the delay of one hundred days. The sub-contractor was delayed two or three weeks by a strike, four or five days by delay of the owner in making a decision in regard to certain specified work, thirty days by plumbers working under contract with the owner, and did extra worjt amounting to two hundred and sixty dollars, the time occupied in which did not appear; held, these facts relieved the subcontractor from responsibility for the delay during the last forty days.^ § 39. Liability for Sheriff's Expenses in Protecting Property during a Strike. In Pennsylvania a strike against the works of the 1 Castlegate Steamship Co., Limited v. Dempsey, (1892) i Q B 854, 54- 2 Gutman ®. Crouch, 31 N, E. Rep., 275; See Crouch ». Gutman.ai N. E. Rep., 271. § 39.] EXPENSES. 357 Allegheny Bessemer Steel Company grew so serious that the proprietors were obliged to call upon the sheriff to protect their property and employes, they agreeing to reimburse him for his expenses in so doing. The ordinary posse comitatus was not suflB- cient for the purpose, and he was obliged to swear in some special deputies. He necessarily incurred con- siderable expense in arming and subsisting and pay- ing them. The doctrine that an agreement of a priv- ate person to pay a public officer for performing his duty is void, on the ground that public policy applies only to the payment of his salary ,i and not to extra- ordinary expenses incurred not strictly in the line of his official duty. It is the duty of a sheriff to pre- serve the public peace and protect property from injury or destruction by a mob of strikers, but he is only obliged to do so in the way provided by law. That way is to call out the power of the county. In that he is absolute master, and it is for him to com- mand and the citizens to obey. But the posse is intended only for short or temporary service, and it was not in the contemplation of the law that it should serve for the length of time required in this case. While it is not the sheriff 's official duty to employ and pay the expenses of special deputies, yet such employment is not unlawful and he has the right to avail himself of paid deputies on terms which do not involve anything in the shape of compensation for his own services or those of his regularly appointed depu- ties. In such a case a sheriff can recover for the actual expenses in arming, subsisting and paying the per diem of special deputies, but nothing more.^ 1 Greenhood on Pub. Policy, 328, Rule 277. 2 McCandless «. Allegheny Bessemer Steel Co., 23 Pitts Ivegal Journal, 223. INDEX. A. Page. ACTION. See REMEDIES. A civil action will lie for enticing away servants and pre- venting the completion of contracts 336 — 389 Against employes for conspiring to quit work 839 — 340 For damages by boycott 340 — 341 Against trades- union for inaugurating strikes , 80 AGREEMENT. See CONTRACT. ' To molest or control employers 204 AID AND ABET. In Texas at an unlawful assembly 243 In Montana 237* Persons concerned in a crime guilty if absent at the time of its commission , 262—268—270 ANARCHY. Is treason 314—320 ANNOYANCE. When molestation is 204, 219,320 APPEAL. Will not lie to the Supreme Court of the United States from a judgment of a United States Circuit Court denying habeas corpus to a person in custody for contempt of court. Note , 349—350 APPREHENSION. Caused by display of numbers 223 APPRENTICE. In South Dakota, to prevent continuing in or entering service 342, 243 Act 6 Geo. 4, c. 139, g 3, to limit number of , .i. 140—149 ARSON. By riotous strikers 329 360 INDEX. Page. A'SSEMELY. In New York, right of employes to assemble to induce em- ployers to pay fair wages . . . ; ' 239 In Texas, meaning of "Unlawful assembly." 243 ASSOCIATIONS. , In West Virginia, unlawful for, to prevent persons working in or about a mine 244 — 245 In Wisconsin, to break, injure or destroy railroad engines, cars, &c., and prevent the running of locomotives or machinery 245 When associations may be dangerous 180 ATTEMPT. In Wisconsin, to prevent or hinder employer or employe. . . . 245 In Georgia .231—283 In Indiana 238 In Michigan 284 In Missouri 236 In New Hampshire 237 In North Dakota 239, 240 In Oregon 24X) In Ehode Island 241 In South Dakota 242 In Texas. , 243 In West Virginia 245 B. BLACKLISTING. Definition of 293 Blacklisting the general public 376 Clpsely allied to a boycott 293 Usually resorted to by employers. 293 Prohibited by Constitution of North Dakota 294 BOYCOTT. Dufinitions of. 248, 349, 250, 270 A serious form of intimidation 248 Origin of the term 350—351 As a conspiracy 251—252 It was a conspiracy at common law 252 Concomitant of important strikes. 353 Criticisms of Knights of Labor for boycotting houses built by non-union men 252—365 Conducted by distributing threatening circulars and assem- bling in large numbers 253—255 People B. Kosta, a case on boycotts 255—256 INDEX. 361 Pacre. BOYCOTT— Oontinueci. People ®. Wilzig, a boycott to compel dismissal of employes and employment of others, the change of mode of conduct- ing business and extort money for expenses of conducting the boycott 356—275 By assembling in large numbers in front of a place of busi- ness, wearing hats with circulars headed " Boycott " libel- ous in character, pasting the circulars on the walls, water- closets and tables and violence to persons and property. 257-359 Parading in large numbers in front of a door with placards is unlawful if force, threats, or intimidation is used 260 — 261 Intimidation to walk up and down in front of a shop, even if no word is uttered or finger raised. It may be by numbers, methods, placards, circ'ulars or devices 260, 261, 266 Extortion the culmination of a boycott 367 The crime consists in the extortion and not enjoyment. .271 — 373 Characterized as socialistic crimes 371 — 373 Perpetrators of, foreigners 373 When counsel are criminally culpable 273 Extenuation 373 Crump ». Commonwealth, to compel publishers to unionize their office 275—379 Conducted by distributing threatening circulars, blacklisting , and picketing 376—378 Incompatible with prosperity, peace and civilization 278 No difference what means are adopted if there is interference with the rights of others 278 Brace Bros. ». Evans, by Knights of Labor to compel rein- statement of discharged employes, by picketing in large numbers, distributing circulars to customers threatening to boycott them, following wagons to learn names of customers, using violence and driving buggies through the streets with placards on the horses with the words "Boycott Brace Bros." 379, 280 Casey v. Cincinnati Typographical Union No. 3, to compel a publisher to unionize a printing office by sending circulars to customers requesting them to withdraw their patronage, publishing similar requests in a paper 380—284 Moores & Co. ®. Bricklayers' Union No. 1, to compel an employer to pay a fine imposed on an employe and a mem- ber of the union ; to reinstate an apprentice and discharge another by circulars to customers threatening boycott if they refused compliance 285—287 Springheaa Spinning Co v. Biley, to prevent employers getting employes and to injure their business by sending 362 INDEX. Page. BOYCOTT.— Continued. out intimidating circulars and posting placards 287 Under act of 6 Geo. 4, c. 139. ! ... 287 Under statute of Colorado 231 Under statute of Illinois 233 Under statute of Montana 336 Under statute of New Hampshire 337 Under statute of Texas 243 For further reference see statutes on page 289 Mogul Steamship Co. «. McGregor, to drive plaintiff's out of the carrying trade between China and Bnglland by circulars threatening to withdraw patronage 288 Old Dominion Steamship Co. v. McKenna, to compel plain- tiff's to pay southern negroes the same wages as New York longshores-men, by sending threatening notices and mes- sages to various steamship lines, wharfingers and ware- housemen dealing with plaintiffs , 288, 289 BUILDING. Delay of, from strikes 356 O. CHARGE TO JURY In Reg. V. Bunn. . . 301—233 In People v. Wilzig : '. 359—262 In People v. Dannhauser 269 271 In People v. Haldorf 363 369 Remarks in passing sentence 271 275 In Boot and Shoemakers of Philadelphia 38—50 In People v. Trequier 97—98 CIVIL ACTION. See ACTION. COERCION. See INTIMIDATION, MOLESTATION, THREATS, OBSTRUCTION. Of employes, &c., to enter into an agreement not to join a labor organization as a condition to getting employment. 238 In Wisconsin to prevent a person engaging or continuing in employment 2^5 When it produces fear upon the mind 293 Of employe to join a club, quit his own club, his employer, or work for wages that do not suit him 395 Combinations free from coercion are lawful I3 Of liberty of mind and body 175 176 Under 33 Vict., c. 34 ' 187 Persistent following, hiding tools, or watching or besetting a person's house or place of business is coercion under the criminal law amendment act of 1871, in England 18, 190 INDEX. 363 COMBINATION. ^''^^' Under 6 Geo. 4, c. 129, § 3 ' 113 In "Vermont, to prevent employment or drive persons from their employment 244 In West Virginia, unlawful to prevent a person working in or about a mine 244,245 To extort money 262, 366, 370 Lawful to raise and maintain wages 363, 264 Unlawful to prevent others from following their calling. . . . 264 To displace employes and fill their places when increase of wages is not wanted 366 To boycott unlawful 378 The offence is combination, overt act not necessary 378, 279 Wanton unprovoked interference by 379 To keep up wages lawful under act of Parliament if there is no intimidation 134, 137, 287 Free from coercion lawful 13 Lawfulness of to be determined from motives for 68 — 70 To quit work if wages are not increased not illegal if no illegal means are used nor rights of others invaded 78 To resist oppression lawful 79 Unlawful to compel employes to demand higher wages when they are satisfied with what they receive 82 To compel increase of wages or discharge of employes not illegal if acts are simply confined to quitting 84 Of master workmen to create 'a monopoly or restrain trade unlawful 87 Lawfulness of general purposes of, not a justification of crim- nal acts 114, 115 Of workmen to persuade employes to quit in order to compel masters to raise wages 121 Bight of masters to combine 127 Differences of opinion of distinguished judges as to right of employes to combine 146 COMMERCE. Acts injurious to, statute of New York 238 Interstate commerce 305, 307, 848, 349 ' COMPULSION. Under statute of Missouri -236 Of employes to enter into an agreement not to join a labor organization as a condition of getting employment. Statute of New York. 238 Of another to abstain from doing what he has a right to do. Statute of New York ■ 339 364 INDEX. Page. COMPULSION.— CowiTOueti. In North Dakota, of another to employ a person, alter his mode of carrying on business, limit or increalse the number of employes, rate of wages or time of service .,.■•- 340 In Oregon, to compel another to employ a peraon, alter his mode of carrying on business, limit or increase the number of employes, rate of wages or time of service 340 In South Dakota, of employer not to employ a person, alter his mode of doing business, limit or increase the number of employes, &c., rate of wages or time of service 243 To make publishers unionize their office 376 CONSPIRACY. Definitions of 73, 97, 188, 199, 301, 204, 205 In New York, common law rule abrogated by statute 91, 92 Same in Maryland 334 Not iUegal if there is no agreement to control the will of employers 204 In a conspiracy to molest, no one need be molested 204 Sufficient if there is improper intent 304 Mere fact of quitting work not sufficient to convict 304 At common law. 136, 304, 305 To compel employer to change mode of doing business . . . 318, 319 To reinstate discharged employes 318, 319 Common law rule of, repealed by 6 Geo. 4, c. 139, § 8 238 When combination is not unlawful in Colorado 331 Under statute of Georgia 331, 332 Under statute of Illinois 233 Under statute of Michigan. .• ^ 384, 335 In New York peaceably assembling to obtain an advance in wages not conspiracy 288 In Pennsylvania not conspiracy to refuse to work unless certain wages are paid or when treatment is brutal 240, 341 • Boycotts are conspiracies 351, 353 To interfere in the management of employer's business, is ■•••■• • 121, 297, 398 Of employers to intimidate employes 301 Common law definition of doubted 67—70 To compel master to raise wages or alter his mode of doing business, or to persuade employes to quit before the expira- tion of their term of service 131 Essence of the ofiense is combination to carry out an unlaw- ful purpose , 131,133 To take workmen away is obstruction and molestation 132 Dangers of 123 INDEX. 365 Page. GONSPlUk.GY.— Continued. In England, under act of 1875, there is no criminal con- spiracy, unless an act is done, which if done by one person would be a, crime 193 CONTEMPT OF COURT. To interfere with a receiver of a railroad in the discharge of his duties or with his employes 347. 348 In employes of a railroad to violate an injunction 848, 349 Is a criminal oifence and cannot be tried out of the district where committed 849, 350 CONTRACT. Quitting work before expiration of term fixed by contract does not necessarily constitute illegal conspiracy 304 But simultaneously quitting in breach of, for the purpose of preventing carrying on business is 205 Notice of intention to quit 318 Between employer and employe 334, 225, 226 Procured by mental duress void 334 Employe is bound by the terms of his contract 337 Mutuality of rights and obligations 337 In South Carolina, persuading employes to violate 243 CONTRACTOR, Delay in building caused by strikes 356 CONTROL. In Montana, hindering or preventing employer in working or enjoying his property 337 Oi employer in selection of employes and wages to be paid.. 278 Of employer's business 297, 298 COUNSEL. Criminally culpable in advising boycotts 273 CRIMINAL ACT. Simultaneously quitting work in breacli of conti act 205 Criminal law amendment act 801, 205 Unlawful acts of employes under 238 D. DAMAGES. In transportation by railroad ~. .351 — 353 By vessels 853 — 356 From interference with contractor 356 Sheriff's expenses in protecting property 356, 357 DEFINITION. Of strikes 1—4 Of lockouts 4—6 Of conspiracy. 7, 32, 63, 64 366 , INDEX. Page. DELAY. In Montana, to contractor, mechanic, employe, &c 336, 237 In transporlation by railroad 351—353 In transportation by vessels 353 — 356 ' Of contractor in building ■• 356 DELEGATE. Whois 307 Walking delegate ad nionished ; 374 DREAD. Caused by numbers of strikers 323 EARLY AMERICAN CASES. ..'. 33—103 EFFECT. Deterring upon the mind. 304 EMPLOYED. What is included in the term .• 331 EMPLOYE. Right to work for, whom and for what wages he pleases,.. . 14, 15, 86, 113, 120, 131, 176, 197, 378 With respect to each other 139, 294, 295 Criminal to coerce to enter combinations 294 Or to compel to withdraw from a club 294 Right to combine to increase wages 124, 143, 394 Right to select employer 294 Criminal to compel to quit employer 14, 139, 294 Labor or skill of, capital or property 113, 395 Criminal to coerce a workman not a, member of a jinion to pay the fine of one who is '. 295 Or to prevent a discharged employe getting work 295 Has the same legal rights as any other citizen 395 Right to quit does not carry with it the right to molest those who wish to work at lower wages 121, 124, 156 Getting drunk and spiriting away 125 Right to quit if there is no contract for a certain peiiod 161 EMPLOYER. Bight to select employes 14, 139, 379, 298 Rights as to property 296, 297 Right to discharge employes. 135, 297, 399 Right to control his business 137, 168. 397, 399 Right to control number and designation of eniployes , . ... 104, 149, 178, 185, 298, 399 Right to lockout members of trades-union 399 Right to a voice as to wages 127, 197, 399, 301 , INDEX. 367 Page. EMPLOYEE.— Continuod. Right to combine 115, 124, 137, 301 Liability of 301, 302 To coerce to discharge employes 156, 164 Personal liberty the greatest of rights 175 EXPENSES. Of sheriff in protecting property 346, 347, 356, 857 EXTORTION. "When the object of a boycott 256, 275, 339 EVIDENCE. That tends to prove a conspiracy 306—219 Not sufficient to prove threats to control master 141—149 K. FEAR. Inspired by force of numbers 223 By encountering dark looks 177, 292 Extortion through, expenses of boycott 267, 269 Inspired by picketing 291 FELONIOUS STRIKES. Treason the object of. • .314-320 Homicide the result of 820—329 Extortion the object of a boycott 329 Arson by rioting strikers ; 329 FORCE. In Colorado, display of to intimidate 231 In Georgia, violence to prevent a person engaging in business 231 In Indiana, to prevent working or furnishing material, or railroad company from running cars or trains 232, 38 In Massachusetts, to prevent a person continuing in service 334 In Maine, to prevent entering or continuing in employ- ment 333, 334 In Missouri, to prevent accepting or entering upon employ- ment 386 In Montana, to prevent, hinder or delay contractor, mechanic, laborer or employe 336, 337 In New York, to interfere with tools, property or use of . . . . 238 In North Dakota, to prevent acceptiijg or continuing in service 339, 340 Or to compel a person to alter his mode of business 340 In Oregon, to prevent continuing in or accepting employ- ment, or to alter mode of doing business, or limit or in- crease number of employes, wages or term of service. .240, 341 In Rhode Island, to prevent entering or pursuing labor. .341, 343 368 INDEX. Page, VOIXCE.— Continued. In South Dakota, to prevent accepting or continuing in em- ployment, or compel alteration of mode of carrying on business, limit or increase number of employes or rate of wages ^*^' ^^^ In Texas, to deprive a person of any right, or prevent rail- road engineer, conductor, &c., moving trains 343, 244 In West Virginia, to prevent persons worliing in mines.. 244, 24.5 In Wisconsin, to hinder or prevent engaging or continuing in employment, break or injure or remove any part of a railroad car, locomotive, traction or stationary engine or machinery, or destroy tlie same 34.5 To control employer in choice of employes and v?ages to be paid 378 Under act 6 Geo. 4, c. 129, ? 3 113 HIDING. Tools 189,198,391 Clothing 198, 291 Rattening 189 HINDER, Employer in carrying on business 320 In Michigan , 235 In Montana 386 In Pennsylvania 341 In Wisconsin , 245 In the use of tools, clothing or property 291 I. INJUNCTION. To restrain boycotts and picketing 342 To restrain carrying intimidating banners 343 The use of funds of a society in aid of a strike.. . .~ 343 False report of a strike 343 To restrain preventing the shipping of a crew 343 To prevent multiplicity of suits, and where damages are inad- equate and conjectural 343 To restrain violations of interstate commerce law 343 Against chief member of a conspiracy to restrain him from giving an order that will result in irrepa.rable injury, or if order is already issued, compel him to rescind it 344 Will not be refused if, since filing bill, strike has ended.. 344, 345 Will not lie to restrain expulsion of member of a trade-union. 345 To restrain enticing away servants 346 To restrain a trade society from using its funds for amalga- mation with another society 346 INDEX. 369 INTENT. ■ '^''^''' Improper or evil .304, 318, 323 Of strikers, is to aflfect the mind 233 The essence in criminal cases 236 Ordinarily, does not affect civil causes 336 INTERFERENCE. Molestation and annoyance are 304, 319, 220 Under statute of Illinois 330 Under statute of Michigan 334 Under statute of Montana 336, 237 Under statute of New York 238 Under Act 6 Geo. 4, c. 129, g 3 111,113 To produce annoyance and loss of business 379 With employer in the enjoyment of his property 397 INTIMIDATION. Definitions of 113, 114, 228 "Dark looks" are 177,392 Under Act 6 Geo. 4, c. 129, § 3 Ill, 113 Under 34 and 35 Vict., o. 73 338 Statutory enactments against 230 — 345 In Alabama 230 In Connecticut 330, 381 In Colorado 331 In Georgia 331 In Illinois , 333 In Indiana 333,333 In Louisiana 333 In Maine ' 233,234 In Massachusetts '. .234 InMichigan ;.., 234,335 In Montana 336 In New Hampshire. . . ., 337 In North Dakota 289, 240 In Oregon 240 In Rhode Island 241, 343 In South Dakota ..343,343 In Texas 343, 344 In Vermont 244 In West Virginia 244,345 In Wisconsin 345 May be by numbers, attitude, placards, circulars and devices. 260 To prevent filling vacant places 265 To compel discharge and employment of servants 360 By parading in large numbers, &c 366,367,272 370 INDEX. Page. INTIMIDATION.— Corafe««d;. To control employer in selection of employes and amount of wages S'i'S Under 6 Geo. 4, c. 139, to keep up wages 287 Picketing as 390 Actual threats not necessary to constitute 393 To abridge right of selecting employer 394, 395 To interfere with employer and his property 297 Of employe by employer 301 Under 6 Geo. 4, c. 139, ? 3, is criminal ,. 138, 131, 178, 185 KNIGHTS OF LABOR. See LABOR ORGANIZATIONS. In West Virginia exceptions in favor of 245 Instigating and maintaining strikes and boycotts 248, 389 L. LABOR ORGANIZATIONS. Lawful and purposes of. 833 When unlawful 333, 335 For mutual protection and interest 13 When formed to intimidate and coerce 14 Have no right to fix rate of wages for non-members 49 Lawfulness determined by motives for 68, 70, 76 LIABILITY. Of railroads for delay from strikes , 351-358 Of vessels 353-356 Of contractor for delay in building 356 For sheriff's expenses in protecting property 856, 357 Of trades-union for instigating strikes, &c 80 LOOKOUT. Definitions of .4—6 Origin of the term . . 5 Actual or constructive 396 May be the act of employe or employer 296 Legality of by employer 296 Rights as to property of employer '. 297 Right of employer to manage and control his business 397, 298 Right to lockout members of trades-union i 299 Right to a voice as tD wages 299 — 301 Right of employers to combine 303 Liability of employers 301, 303 IVI. MANDAMUS. To compel drawing order on a bank for the money of a society 343 INDEX. 3*71 M.A.'NDAM.VS.—Ooniimced. Pa^e. Will not lie to compel registration of society, when 34" Or to compel supervisors to pay sheriff 's expenses 340, 347 MISDEMEANOR. Statutory. In Alabama 330 In Connecticut aSO, 231 In Colorado 231 In Georgia , 231,382 In Illinois 233 In Indiana , 233, 233 In Louisiana 233 In Maine 333, 234 In Massachusetts 234 In Michigan 234, 235 In Missouri 236 In Montana 237 In New Hampshire 237, 238 In New York 238, 239 In North Dakota 239, 240 In Rhode Island - . . ; 341, 343 In South Carolina 343 In South Dakota 243, 243 In Texas , 343, 244 Under 6 Geo. 4, c. 129, §8 ... 183 MOLESTATION OF EMPLOYER AND EMPLOYE. Under 6 Geo. 4, c. 129, § 8 : . . . HI, 129, 135, 139 Under act of 34 and 35 Victoria, c. 32 32,200 When there is annoyance to the mind 204, 219 When intimidation 239 Under statute of Michigan. . ■ 234 Under statute of Montana 236 Of employer in enjoyment of his property 297 When it is an indictable conspiracy 131 What constitutes 123, 187, Note 1 To create alarm and force assent 125 Persistent following, hiding tools or besetting house is. ..189, 190 O. OBSTRUCTION. Is a form of intimidation 239 Unaer 6 Geo. 4, c. 139, 23 HI, 129, 135 In Michigan -. • 235 In New York, of justice 238 In Rhode Island •, 242 Of employer in enjoyment of his property : 297 Persuading workmen to quit, is 121 Conspiring to take away workmen 123 372 INDEX. Page. OBSTRUCTION.— Oo?iim««Z. To create alarm and force assent 135, 136 Under S3 Vict., c. 34 (Note 1) 187 Under criminal law, amendment act 189, 190 OBITERS 88, 329 F". PERSUASION. In South Carolina unlawful when 243 Lawful to keep others from filling vacant places v 364 To induce men to enter combinations to keep up wages law- ful under act of Parliament, when • • S^87 Picketing lawful if confined to persuasion 390, 291, 138, 139 Jury to say where persuasion ends and intimidation begins.. 293 When persuasion is criminal 121 Lawful if done peaceably and without coercion 177, 185, 187 PICKETING. Definitions of 165, 290 Antiquity of 290 Not confined to members of trades-union 290 Intended to intimidate 290 Is ordinarily a part of a boycott 290 Statutory changes in respect to 291, 393 Exceptions under statutes of some states. Notes 1 and 4 391 Unlawful if there is violence, persistent following, &c 85, 291 Under act of Parliament permitted only for getting informa- tion, &c 391 Characterized as dangerous 391 When a criminal conspiracy 291 " Dark Looks '' intimidation 392 Actual threats not necessary to intimidate 293 When it takes away liberty of will and inspires fear 293 When it may or may not be illegal '.. .. 81 Not to be assumed from seeing person in neighborhood. . 187, 188 Threats make it unlawful , 138, 139 When intimidation, molestation or obstruction 166 — 178 In England, Act 1875 for obtaining, &c., information 192 Mistaken view as to right of 198 It is a serious offence, when ..194, 197 PREVENTING EMPLOYERS, EMPLOYES AND OTHERS IN THEIR RIGHTS. In Missouri 236 lu Montana 236 In Alabama 230 In Georgia 231 In Illinois • 232 INDEX. 373 page. PREVENTING EMPLOYERS, EMPLOYES AND OTHERS IN THEIR BlOcine.— Continued. In Indiana 232,233 In Louisiana , 233 In Maine 233 In Massacliiisetts 234 In Montana 236, 237 In New York. , 238 In Nortli Dalcota 239,240 In Oregqn 240 In Rliode Island 241, 242 In South Dakota 242 In Texas 243, 244 In West Virginia 244, 245 PROPERTY. Labor property of employe, right to fix its value 115, 226 Before entering into employment 236 Must not extort wages by threats, &c ., 226 Exchange of property with employer 226 Interference with in Montana 237 Injury to in New Hampshire 237 In Rhode Island to injure or obstruct in use of 242 Injunction to prevent destruction of 287, 288 PUBLIC. Not to be considered on trial for strike 218, 222 When strikes affect the public 83 PUBLIC HEALTH. In New york, acts injurious to 238 PUBLIC MORALS. In New York, acts injurious to 238 PUBLIC OPINION. Stronger. than any union 272 PUBLISHERS. Liability for encouraging strikes 293 Q- QUITTING EMPLOYMENT. See RIGHT TO STRIKE. In Michigan, voluntary not conspiracy 335 General rule as to right to, deduced from statutes and decisions 246. 247 Exception as to railroad employes 247, 347, 349 May if employer unjustly refuses to increase wages 264 If employer is disliked 294 374 INDEX. R. Page EAILROADS. In the nature of public institutions 247, 305, 307 Injuring property of 347 In Indiana, preventing running of trains 233 In Michigan, obstructing operation of 335 In Montana, interfering with and hindering 237 In New York, coercing contracts not to join, unions 238 In Texas, intimidating employes '. 343, 244 In Vermont, preventing persons entering service of 344 In Wisconsin, injuring, destroying engines, cars, &c 345 RATTENING 189 RECEIVER. Represents the court In management of property 347 Court will hear controvercles between him and employes 347 Contempt to Interfere with • 347 REMEDIES. Civil action for enticing away servants 386 — 339 For conspiring to quit -work 339, 340 For damages by boycott 340,341 By injunction 342—346 By mandamus , 346, 347 Attachment for contempt of court .347 — 350 REVIEW OF CASES 98—103 RIGHT TO STRIKE. Distinction between quitting work and striking 3 From definitions all strikes are illegal 223 Compulsion the leading idea of strikes 223, 224 Strikers not actuated by inoffensive motives 333 If no contract is violated 237 Why common law treated strikes as conspiracies 227 Under the English cases and statutes ~. 339 The American rule 330 In Michigan , 235 In Pennsylvania 340, 341 General rule as deduced from American statute and decisions, 246 Exceptions as to railroad employes , . 347 Illegal to compel the discharge of a member of a society for not paying a fine..: 114 115 RIOTS. When acts of strikers may be 81 Arson result of, all present guilty 339 S. SHERIFF. Expenses in protecting property during a strike. .346, 347, 366, 357 INDEX. 375 SOCIALISM. ^''^^' Strikes closely connected with 314 SOLICITUDE. Produced by numbers and acts 333 STATUTES. See INTIMIDATION, THREATS, INTERFER- ENCE, COERCION, FORCE, MOLESTATION, MIS- DEMEANORS, VIOLENCE, OBSTRUCTION. Early English statutes 108—109 Act of 5 Geo., 4 c. 95 110, 111 Act of 6 Geo., 4 c. 139, § 3 Ill, 113 Acts 84 and 35, Vict. c. 73 338 Cases decided under 114, 3?3 Act 23, Vict. c. 34 (Note) 187 STRIKES. Definitions 1,3 Original doctrine 1—109 Modern doctrine 110—247 As conspiracies ,. ., 6—33 At common law to raise wages 8,9,33 Questioned in Master Stevedores Asso. v. Walsh 10 — 18 Criticism on that case 16—33 Law found in volumes of common law 46 T. THREATS. PERSONS AND PROPERTY. ' Of personal violence not necessary 315 As intimidation 328 In Alabama 230 In Connecticut 330 InColorado 381 In Georgia 331, 233 In Illinois 333 Inlndiana 383, 383 In Louisiana 383 In Maine 238 In Michigan 384 In Missouri 336 In Montana 336 In New York 338 In North Dakota .-.389, 340 In Rhode Island 241, 343 In South Dakota ...... 342 In Texas ■ -343, 244 In Vermont 244 In "West Virginia 244, 245 To prevent filling vacancies ' 365 To compel employment and payment of certain wages. . .139, 378 3*76 INDEX. Page. 'TR'R'E\T&.— Continued. To induce workmen to quit 133, i:^9, 140 Direct threats not necessary 136, 131, lb9 Under 6 Geo. 4, c. 139, § 3, to limit number of appren- tices 140—149 Ttiere must be an intimjition of force, &c 148 Essence of, overcoming the will 149 Information given on request not a threat 148, 149 To force an employe to quit ■ 150 — 156' To have one turned out of a society, &c 155 To compel discharge of employes entering'into a contract not to go on a strike 159 — 164 Must be to do an illegal act. , 164 To force an employer to limit the description of his workmen 180—185 TRADE. In New York, acts injurious to 93, 93, 338 Strikes in restraint of 43, 46, 303—313 As affecting price of commodities , 803 — 305 Transportation affected by 305 — 307 Interstate commerce act 311 — 313 Combinations to restrain, or create monopolies " 87 Acts of trades union in restraint of. . . ., 89 TRADE (JJSriON. Membership is not to prejudice a defendant 304 Lawful under English and American statutes 881-338 TRANSPORTATION. Delays in, to railroads from strikes 351, 353 To vessels from strikes 353—356 TREASON. ■ Strikes may result in 314—820 Societies of Socialists and Anarchists treasonable 314 — 319 V. VESSELS. Delay to, by strikes 353—356 VIOLENCE, TO PERSONS AND PROPERTY. Is the highest form of intimidation ; 328, 339 In Alabama 380 In Georgia 381 In Indiana 333, 333 In Louisiana 233 In Massachusetts. 334 In Missouri 336 INDEX. 377 Page. YIOLSNGE.- Continued. In New York 238, 239 In Rhode Island .241,342 In Texas 243 In Vermont 244 It is abhorrent to the law • 247 To prevent filling vacaat places 265 Boycotts conducted by 280 To interfere with employer's enjoyment of his property 297 Renders acts of strikers illegal 81 Under Act 6 Geo. 4, c, 129, ? 3 Ill, 112 To person and property 128 WAGES. Right of opinion of employes as to 18 Regulation of 43,43,64 Must be mutually agreed to 49 Raising of, a matter of public concern '. . . 92 Indictable at common law 92, 93