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CHAPTER VIII

STRIKES AND BOYCOTTS

§ 55. Strikes. In the first chapter we discussed the termination of employment contracts, or the quitting of work by employees individually, and also the legality of efforts by way of persuasion or intimidation to bring others to quit employment. We now come to the much more complex question of the legality of concerted efforts to bring about such results. There is no subject connected with labor law about which there has been so much disagreement among judges and jurists, and about which there is still so much doubt. A recent text-book upon strikes and boycotts goes so far as to say that there can be no such thing as a legal strike. The truth is probably the exact opposite. Instead of saying no strikes are legal, we should now say all strikes are legal; that is, all plain and simple combinations to quit work when there is no breach of a definite time-contract in so doing, and where it is not complicated with any element of boycotting, or marked by any disorder or intimidation. When these latter exist, it is the boycotting, disorder, or intimidation that is

illegal, and may be punished or prevented by injunction; not the strike.

The notion that mere strikes are illegal is based entirely upon old English cases, which were followed perhaps, to some extent, in this country early in the present century, but which our courts have now ceased to follow, and the doctrine of which has long since been abrogated in England by express statute. We showed in Chapter I. how the mere quitting of work by an individual is never criminal, nor even gives the employer any action for civil damage, unless there is a breach of a definite time-contract; and it is only the old-established English common law concerning conspiracy which made the matter different in case of a combination to leave, or strike. This doctrine was, and is, except when modified by recent statutes in labor cases, that an unlawful conspiracy is a combination of two or more persons to accomplish a criminal, unlawful, or immoral purpose by means which may be unlawful or lawful; or a combination to accomplish a lawful purpose by criminal or illegal means (or perhaps even fraudulent or immoral means'), or for a purpose which could only be

State v. Burnham, 15 N. H., 396, at pp. 401, 402. In Timberly v. Childe, 1 Siderfin, 68, decided as early as 1663, it was held that it was an unlawful conspiracy for persons to combine for charging a man with being the father of a bastard child, although that was not a legal offence, but purely

brought about by the use of such means. This law of conspiracy is perfectly definite and well settled, and exists to-day, and the participants in such conspiracy render themselves criminally liable, besides being in all cases liable civilly to the party or persons injured for any actual damage they incur. Now, the word "immoral” in the above definition is very important, and has been construed very broadly. It means substantially not only purposes against morality, such as the seduction of a woman,' but things which are contrary to ordinary Christian doctrine, or even the principle of the Golden Rule.* Thus, a conspiracy to do financial harm to a

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a moral one; and to the same effect in the case of Queen v. Best, 1 Salk., 174, the indictment was for conspiracy to make the same charge. The court said "the conspiracy is the gist of the indictment, and that, tho' nothing be done in prosecution of it, is a complete and consummate offence of itself; and whether the conspiracy be to charge a temporal or ecclesiastical offence on an innocent person, it is the same thing." And in the case of the indictment of Lord Grey and others for combining to seduce a young woman under eighteen, decided in 1682, the indictment was sustained, and the defence were found guilty, although it appeared that the young woman was willing, so there was no criminal offence. 9 Howell's State Trials, 127.

2 Smith v. People, 25 Ill., 17.

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'Hawkins, in his "Pleas of the Crown" (Vol. II., p. 121), states that a conspiracy wrongfully to prejudice a third person is highly criminal at the common law. And see Reg. v. Best, 1 Salk., 174.

4 State v. Buchanan, 5 Harris and Johnson (Md.), 317.

definite person, or class of persons, is an unlawful conspiracy, within the meaning of the definition. So a conspiracy to accomplish a thing against the general welfare of the state, such as suppression of records, or the destruction of boundaries, the bringing about of legislation by improper means, or the manufacture of evidence." The court seems to have held in the Spies case, of the Chicago anarchists, that an association of anarchists was in itself a criminal conspiracy, because its object is the subversion of all laws.' It is easy to see why a combination to do a thing harmful to the state may be punished by the state, but it is harder at first to see why a combination merely to injure a person's success or prosperity, such as a combination to hiss an actor, or not to pay rent,' should also

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5 Thus, in Rex v. Cope, 1 Strange, 144, a husband and wife and their servants were indicted for a conspiracy to ruin the trade of the prosecutor, who was a card-maker, by putting grease in the paste for his cards. In Baughmann's case (see 11 Va. L. T., 324) defendants, members of trades unions, were indicted for conspiring to injure the plaintiff's business by threatening to break up the business of third parties if they purchased goods of the plaintiff. See also People v. Petheram, 64 Mich., 252; Rex v. Eccles, 3 Doug., 337.

King v. Mawbey, 6 T. R., 619.

Spies v. People, 122 Ill., 1.

Gregory v. the Duke of Brunswick, 6 Manning & Granger, 205.

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be punished by the state as a criminal offence, when the same acts, when done by any number of individuals without concert of action, would in no sense be criminal, nor perhaps even subject the individuals to damages. One individual may wish another any amount of harm, may seek to injure his business or prosperity in all possible ways, but still, so long as he commits no trespass or battery, and no fraud or theft, he is not liable even civilly, still less criminally." But the law of conspiracy is one of the rare instances where the law goes solely into the intent and purposes of the act. It is the combining with such wrong intent or purpose that makes the participators liable to the criminal law, not the ultimate motive, nor the acts which they do, even though these be criminal in themselves, or though they do no acts whatever. "It is one of the few cases where the law undertakes to punish criminally an unexecuted intent." "1 For instance, a conspiracy to prevent men taking work by assaulting them with weapons would render all the members of it liable to conviction for criminal conspiracy, and besides, those actually com

10 Thus the Calcutta Marine Superintendent ordered all his pilots not to employ a certain tug, and was held not liable in damages to the owner of the tug. Rogers v. Dutt, 13 Moore P. C., 209.

Queen v. Best, 1 Salk., 174; U. S. v. Cassidy, 67 F. R., 705; Baughmann's Case, 11 Va. L. J., 324.

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