certain day, but I may also enter into an agreement in which I “barter away my right of choice" not to pay him such sum on that day. The binding agreement in the latter case is just as legal as the untrammeled refusal to pay in the former. That there is a distinction in legal effect between merely combining to refuse to deal and combining to induce others to refuse to deal, see Booth v. Burgess, 65 Atl. 226, 230 (Ct. Ch. N. J., 1906). CHAPTER V BOYCOTTS § 24. Definition of boycott. 25. Boycott whether illegal apart from violence or acts producing fear of violence. 26. Relation justifying boycott. § 24. Definition of boycott.-The word "boycott," which is of very recent origin, dating back only to about 1880,1 is commonly applied to the act of refusing to deal or of inducing refusal to deal. That is to say, a boycott as here defined is the act of a combination of persons in refusing to deal or in inducing others to refuse to deal with a third person.2 Strictly speaking, 1 Century Dictionary. For an account of its origin, see Mr. Justin McCarthy's "England under Gladstone," and quotation therefrom in State v. Glidden, 55 Conn. 46, 76; 8 Atl. 890, 896; 3 Am. St. Rep. 23, 34 (1887). In Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cin., 1889), reference was made to the oldest recorded case of boycotting as occurring in 1221, citing "vol. 1 of the publication of the Selden Society, p. 115, case 178, Pleas of the Crown." In Consolidated Steel & Wire Co. v. Murray, 80 Fed. 811, 819 (C. C. Ohio, 1897), State v. Glidden was said to be the first American case in which the word is used. See, in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 128; 30 Atl. 881, 891 (1894), reference to article in 19 Irish Law Times, 572, suggesting that the method had its inspiration in the proceedings of excommunication practiced in ecclesiastical tribunals. 2 The following are definitions of "boycott" (or "boycotting"): “To combine in refusing to work for, buy from, sell to, give assistance to, or have any kind of dealings with, and in preventing others from working for, buying from, selling to, assisting or having any kind of dealings with (a person or company), on account of political or other differences, or of disagreements in business matters, as a means of inflicting punishment, or of coercing or ntimidating." Century Dictionary. "A combination between persons to suspend or discontinue dealings or patronage with another person or persons because of refusal to comply with a request made of him or them." Anderson's Law Dictionary. "A conspiracy formed and intended, directly or indirectly, to prevent the carrying on of any lawful business, there is no differentiation between a boycott and the mere act of refusing to deal, or of inducing refusal to deal, already considered, for, as has been said, "a boycott might be initiated as well by a single person as by a combination.” 3 In this view the element of combination though usually present is not essen or to injure the business of any one, by wrongfully preventing those who would be customers, from buying anything from or employing the representatives of said business, by threats, intimidation or other forcible means." Black's Law Dictionary. "The withdrawal for a certain purpose of the patronage of the person or persons initiating it, and of as many others as he or they can induce to join them." E. P. Cheyney in 4 Pol. Sci. Quart. 274 (1889). In Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cin., 1889), it was said: "The essential feature of (boycotting) is the exclusion of the employer from all communication with former customers and material-men, by threats of similar exclusion to the latter, if dealings are continued." In Toledo, Ann Arbor, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 738; 19 L. R. A. 387, 391 C. C. Ohio, 1893), it was said: "As usually understood, a boycott is a combination of many to cause a loss to one person, by coercing others against their will to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them." This definition was approved in Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 525; 77 N. W. 13, 24; 42 L. R. A. 407, 418; 74 Am. St. Rep. 421 (1898). In Gray v. Building Trades Council, 91 Minn. 171, 179; 97 N. W. 663, 666; 63 L. R. A. 753, 757; 103 Am. St. Rep. 477 (1903); Lohse Patent Door Co. v. Fuelle, 114 S. W. 997, 1003 (Supm. Ct. Mo., 1908), this definition was substantially adopted, it being said in Gray v. Building Trades Council, to also include "an organization formed to exclude a person from business relations with others by persuasion, intimidation and other acts which tend to violence and thereby cause him, through fear of resulting injury, to submit to dictation in the management of his affairs." In Crump v. Commonwealth, 84 Va. 927, 940; 6 S. E. 620, 627; 10 Am. St. Rep. 895, 906 (1888), it was said: "The essential idea of boycotting, whether in Ireland or the United States, is a confederation, generally secret, of many persons whose intent is to injure another by preventing any and all persons from doing business with him, through fear of incurring the displeasure, persecution and vengeance of the conspirators." See also Hopkins v. Oxley Stave Co., 83 Fed. 912, 917; 28 C. C. A. 99, 104 (8th C., 1897); My Maryland Lodge v. Adt, 100 Md. 238; 59 Atl. 721; 68 L. R. A. 752 (1905); Klingel's Pharmacy v. Sharpe, 104 Md. 218; 64 Atl. 1029; 7 L. R. A. N. S. 976; 118 Am. St. Rep. 399 (1906); State v. Van Pelt, 136 N. C. 633, 665; 49 S. E. 177, 188; 68 L. R. A. 760, 772 (1904). 3 E. P. Cheyney, in 4 Pol. Sci. Quart. 274 (1889). tial to the definition of a boycott. Regarding it, however, as essential, it is not essential that the combination be the result of any formal or written agreement.* 5 § 25. Boycott whether illegal apart from violence or acts producing fear of violence.-Leaving out of consideration the special case of inducing to refuse to enter or continue in employment there is, in the view we have taken, nothing illegal in a boycott as just defined, at any rate, if the boycott is merely the natural incident or outgrowth of some lawful relation. That is to say there is nothing illegal in a boycott, apart from acts of violence or acts producing fear of violence." As already suggested with reference to the right of refusal to deal, it would seem that it might well be claimed that the right to institute a mere boycott "is a part of the liberty of action which the constitutions, State and Federal, guarantee to the citizen." But what seems to be a contrary doctrine has come to rather extensively prevail. Thus it has been said that "boycotts, though unaccompanied by violence or intimidation, have been pronounced unlawful in every State of the United States where the question has arisen, unless it be in Minnesota, and they are held to be unlawful in England." This doctrine 7 is perhaps referable not so much to the view that a boycott as probably is to Bohn Manuf. Co. v. Hollis, 54 Minn. 223; 55 N. W. 1119 (1893); 21 L. R. A. 337; 40 Am. St. Rep. 319 (1893), with which compare, however, Ertz v. Produce Exchange, 79 Minn. 140; 81 N. W. 737; 48 L. R. A. 90; 79 Am. St. Rep. 433 (1900); Gray v. Building Trades Council, infra. In Thomas v. Cincinnati, N. O. & T. P. Ry. Co., the action condemned was referred to as a "boycott," though it was unnecessary to base the decision on that ground, especially as the boycotted party was not a complainant or otherwise a party to the action. Had the boycotted party been the complainant, the case would then have been similar to that under consideration in Hopkins v. Oxley Stave Co., 83 Fed. 912; 28 C. C. A. 99 (8th C., 1897). And a boycott as herein defined, seems to have been held actionable in Quinn v. Leathem, App. Cas. (1901) 495, that is to say, there was held actionable maliciously conspiring to induce a customer of the plaintiff not to deal with him, such customer being thus induced not to so deal. See also O'Keeffe v. Walsh, 2 Irish Rep. (1903) 681; Boots v. Grundy, 82 L. T. R. 769 (1900). As to application of § 3 of English Conspiracy & Protection of Property Act, see Quinn v. Leathem (p. 541). In Gray v. Building Trades Council, 91 Minn. 171; 97 N. W. 663; 63 L. R. A. 753; 103 Am. St. Rep. 477 (1903), though all that was decided was that a boycott instituted against employers for the purpose of compelling the employment of union labor only was unlawful, the court seemed inclined to put the decision on the ground that boycotts generally are illegal. See Joyce v. Great Northern Ry. Co., 100 Minn. 225; 110 N. W. 975; 8 L. R. A. N. S. 756 (1907). To similar effect under like conditions seem Loewe v. California State Federation of Labor, 139 Fed. 71 (C. C. Cal., 1905); Lohse Patent Door Co. v. Fuelle, 114 S. W. 997 (Supm. Ct. Mo., 1908). So the decision seems to have rested on that ground in My Maryland Lodge v. Adt, 100 Md. 238; 59 Atl. 721; 68 L. R. A. 752 (1905), where was allowed a preliminary injunction against "in any manner boycotting the plaintiff or his manufactured goods, or any one for whom the plaintiff has worked, is now working, or shall hereafter work, or manufactured articles of such last-named person by reason of such work." There was also here enjoined following the delivery wagons of the plaintiff in the streets for the purpose of finding out where work was to be done; also going to, or sending any communication, letters or circulars to places of business, for the purpose of inducing not to deal with the plaintiff. In Barr v. Essex Trades Council, 53 N. J. Eq. 101, 122; 30 Atl. 881, 888 (1894), where an injunction was granted against boycotting the proprietors of a newspaper by labor unions, the only injury, so far as the complainants were concerned, was inducing persons to refuse to deal with them, there being concededly "no public disturbance, no physical injury, no direct threats of personal violence, or of actual attack on or destruction of tangible property as a means of intimidation or coercion." See also Martin v. McFall, |