The English law against intimidation is the model of the New York statute and most others. It defines in great detail what intimidation is—substantially, that it is violence or threats, the persistently following, the hiding of tools, etc. or the watching or besetting the house or place of business—and menaces, as well as actual violence, are recognized as unlawful and punishable by imprisonment, in Germany, Italy, Sweden, and other countries. Germany and Austria copy the English common law as to enticing from service.
There is as yet, however, no evidence in Europe outside of Great Britain of the American tendency to make a special privileged class of skilled or industrial labor. So far as appears, there is no special legislation in any European country which is concerned particularly with the legal or political rights of industrial laborers.[2] There is much more co-operation and sympathy between employers and employees, at least in Continental countries, and possibly for this reason co-operation has proved far more successful.[1] State labor bureaus, state insurance, saving banks, and employment agencies are almost universal throughout the Continent.
[Footnote 1: See Oilman's "A Dividend to Labor," Boston, 1899. Jones's
"Cooperative Production," Oxford, 1894.]
CHAPTER XII
COMBINATIONS IN LABOR MATTERS
We have now gone over the history of modern legislation in the two great fields of property and personal liberty, and we have generally found that the same principles of jurisprudence govern both. So shall we now find when we come to combinations that there is no difference or distinction in the law between combinations of capital and combinations of individual faculties. In both fields a "combine" is obnoxious, as the untutored mind instinctively feels. Combinations may, of course, be lawful; but the fact that no actually criminal purpose or act can be found against them is not conclusive of their legality. At the risk of wearying the reader I would reiterate my belief that this was one of the greatest juristic achievements of the English common law; and that the question whether it shall be all done away with or retained is the most momentous public question now before us in industrial and social matters.[1] Whether, on the one hand, Standard Oil combinations shall be permitted to the point of universal monopoly of trade and opportunity; or, on the other, close unions built up, even by legislation itself, to an equally impregnable position of monopoly of opportunity, or so as to become a universal privileged guild—are questions to be determined by the same principles; and equally momentous to the future of our republic and of human society as now constituted. And before passing to a review of the legislation itself, I would lay down the principle which I believe to be the one which will ultimately be found to be the controlling test: that of intent. The effect (often proposed as the test) is really immaterial as determining the illegality of the combination, except so far as it may be evidence of the probable intention of the participators at its inception.
[Footnote 1: Professor Dicey, I find, in his recent book, "Law and Opinion in England," opens this subject with a statement equally strong (Appendix, note 1, pp. 465-6).]
For the early English conspiracies were by no means necessarily or usually aimed at the commission of some definite crime; they were rather described to be the conspiracies of great lords for the general "oppression" of a weaker neighbor, for which he sought refuge or protection in the court of chancery. Now, general oppression or wrongdoing, the exclusion from land or labor or property or trade, by a powerful combination, is precisely the moral injury suffered in modern boycotts when there is no actual crime committed. Indeed, one of the earliest kinds of conspiracy expressly mentioned and described in the English statutes is a conspiracy for the maintenance of lawsuits, which by the very definition of the thing must be a combination for an end not in itself unlawful. The American courts have been curiously obscure or vacillating on this point. With their too general forgetfulness of historical legislation and the early common law, they have gone from one extreme to the other, often with a trivial consideration of the importance of the points involved, and always with an entire absence of a universal point of view, of that genius which grasps a question in its entirety and is not confused by irrelevant details. It is only of late when the matter has come before the Federal Supreme Court and the courts of a few States which have been educated by a frequent recurrence of disputes of this sort that we begin again to see the principle clearly, as I shall venture to lay it down here: that the acts of a number of persons combined are to be judged by their intent. In individual acts the intent is of no importance except as it turns an accident into a crime; chance-medley for instance into murder, or mere asportation into larceny, or ordinary conversation into slander; yet these few instances serve to show how universal is the recognition of intent in the law and how little difficulty it presents. Juries have very rarely any difficulty in determining this question of intent in individual acts; and in like manner they will have no difficulty when it is recognized as the fundamental test in cases of combination, i.e., conspiracy. And for the antiquity of this our law we need but mention a few cases: Rex v. Crispe, cited in the Great Case of Monopolies (7 State Trials 513):" Here was lately an agreement between copperas makers and copperas merchants for the buying of all copperas, and that these copperas makers shall for three years make at so much a ton and restraining them from selling to others"—held a criminal conspiracy; of the tailors of Ipswich (6 Coke 103) where a company of tailors made a by-law to exclude non-members from exercising their trade; and the Lilleshall case (see p. 71 above).
Thus in matters of capital: is the first intent, the immediate object, to increase profits, to acquire or enjoy property, to enlarge one's business,[1] or is the first intention to destroy a competitor or create a monopoly? So in labor combinations: is the first object to get better terms for the persons combining, an increase of wages or a reduction of hours, improved conditions in factories and shops, etc., etc., or is the first thing they are seeking to do to injure a third person, not concerned in the dispute, or to control the liberty and constitutional right of the employer himself? If the latter, it is "oppression" within the meaning of the early common law, and should be so held to-day.
[Footnote 1: What Mr. Cooke calls, in his preface, "the natural incident or outgrowth of some lawful relation." Combination, Monopolies and Labor Unions, p. iv.]