III STRIKES AND BOYCOTTS The Law of Conspiracy. The subject we come to to-day, to a student of ethics, is perhaps the most interesting in the whole domain of law, for it is the only branch of the law-certainly the only branch of civil law as distinct from criminal-where a higher principle is enforced than mere legality, where the law itself undertakes to go into the higher domains of morality and ethical purpose. We shall find, even in the law of strikes, but clearly and avowedly when we come to the law of boycotts, that there are two great points in which this law differs from all other legal regulations. First, that it undertakes to judge men and their conduct as the recording angel might judge them, independent of any overt act; and second, that it undertakes to judge not alone what men do, but their intention and purpose in doing it. Now, first I want to clear away a confusion which still exists in the books of most writers, but is an inheritance from that obsolete Elizabethan law of which I have so often spoken. You will find still in many textbooks, and in some cases, the assertion that there cannot be such a thing as a legal strike. In fact, the very latest published text-book on the subject —that of Cogley, published in Washington in only 1893-declares all strikes illegal, for the reason that they are necessarily done by prearrangement between many workmen to cease working simultaneously for the express purpose of injuring the employer. Now, this statement is not the law to-day, and it is not the law, because the last clause, that all strikes are for the express purpose of injuring the employer, is not true. The explanation of the survival of this notion is that under the statute of Elizabeth, so often quoted, and other old English statutes, it was illegal to pay wages beyond the amount limited by law, and as a consequence of this a combination to enforce such higher rate of wages was necessarily a combination with an illegal purpose. Upon this ground was the old Journeymen Tailors' case decided in England in 1721, which in effect made all strikes or labor unions to raise wages a conspiracy; and that was the law in England down to the beginning of this century; but it was never fully adopted in this country. Strikes not Illegal in the United States. The cases in New York, Pennsylvania, and Massachusetts decided early in this century show an ever bolder intention to distinguish the Journeymen Tailors' case; so that it was soon established-certainly before the year 1830-that a strike, even when it is a preconcerted agreement to leave employment, in the absence of any breach of express contract, is not a conspiracy which subjected the striker either to civil or criminal liability. Doubtless this tendency of our courts, while it rested morally upon general considerations of humanity, rested legally on the ground that they held the old English labor statutes never to have become part of the Common Law in this country. But whatever be the reason, such is the fact; and a strike, merely as a strike, to raise wages without other motive, was never illegal in this country. And in England they soon arrived at the same result, but by another method. There an express statute had to be passed. There are several such statutes, but they may be said to date from the year 1824. In that year an act was passed providing that no workmen entering into a combination to advance wages or lessen working time shall be subject to prosecution for conspiracy, or any criminal punishment. Now, this act also provided that no combination to induce another to depart from his service before the time for which he is hired, or to induce him to refuse to enter into work, or to force the employer to carry on his business in a certain way, should be an illegal conspiracy. This, as we shall see in a moment, was going too far; and the next year that part of the statute was repealed; but the repealing statute still provided that it should not be penal for laborers to combine for the sole purpose of determining the rate of wages or the hours of work, or to enter into an agreement among themselves for the purpose of fixing such wages or hours; and in the course of the next twenty years the legality of all trades-unions was fully established in England. As I said, they were, in my opinion, never illegal in this country. Intention the Test. But we shall be asked, if all strikes are legal, how is it then that even last year certain strikes were declared illegal, and certain people who ordered them or took part in them were actually punished? This brings us to that interesting law of conspiracy which I spoke of in the beginning; and I first ask you to note, that when I said all strikes were legal, I did not say that a combination not only or not chiefly to raise wages, but mainly to injure property, or some definite person, that is, what we now call a boycott, was legal. A naked boycott, a boycott having for its sole purpose the injury of some definite person or class of persons, or the destruction of some definite property, has never been legal either in Eng land or America, and it is not legal to-day. This is one of the oldest doctrines in the law, dating back to 1221, when the Abbot of Lilleshall complained that the bailiffs of Shrewsbury did him. many injuries against his liberty" in that they caused proclamation in the town that none should sell to him or his men under penalty of ten shillings. Why is this? Why is a combination to strike legal and a combination to boycott not? The sole answer is that the intention is different. Here the law makes-in some cases the intention, in others the purpose-the sole distinction. There is no dry letter of law about this doctrine; it punishes or inflicts with damages the offender as a parent might punish a child, not for what he did do, but for what he meant to do, and for the object he had in doing it. The law of conspiracy may be stated most concisely, that a criminal conspiracy, or a conspiracy which subjects the partaker either to criminal punishment or to damages to the person injured, is either (1) a combination to do an illegal or immoral thing, or to injure a definite person or class of persons, or the public generally, whether the means employed be legal or not, and although the thing sought or the act done would not, in the case of a single person, subject him to any liability; or (2) it is a combination to do a perfectly legal thing by means which are, or any one of which is, criminal or illegal; and in both cases |