the employer's physical property, but the relations he has established as an employer of labour, summed up in his expectancy of retaining the services of old employés and of obtaining new ones. Boycotting, obviously, has no connection with acts of violence against physical property, but is designed merely to undermine the profitable relations which the employer has developed with his customers. These expectancies are advantages enjoyed by established businesses over new competitors, and are usually transferable and have market value. For these reasons they are now recognised as property in the law of good will and unfair competition for customers, having been first formulated about the middle of the nineteenth century.

The first case which recognised these expectancies of a labour market was Walker v. Cronin,2 decided by the Massachusetts Supreme Judicial Court in 1871. It held that the plaintiff was entitled to recover damages from the defendants, certain union officials, because they had induced his employés, who were free to quit at will, to leave his employment, and had also been instrumental in preventing him from getting new employés. But as yet these expectancies were not considered property in the full sense of the word. A transitional case is that of Brace Bros. v. Evans in 1888.3 In that case an injunction against a boycott was justified on the ground that the value of the complainant's physical property was being destroyed when the market was cut off. Here the expectancies based upon relations with customers and employés were thought of as giving value to the physical property, but they were not yet recognised as a distinct asset which in itself justifies the issuance of injunctions.

This next step was taken in the Barr case in New Jersey in 1893. Since then there have been frequent statements in labour injunction cases to the effect that both the expectancies based upon the merchant-function and the expectancies based upon the employer-function are property."

2 107 Mass. 555 (1871).
35 Pa. Co. Ct. 163 (1888).

4 Barr v. Trades' Council, 53 N. J. E. 101, 30 Atl. 881 (1894).

5 Eureka Foundry Co. v. Lehker, 13 Ohio N. P. 398 (1902); Underhill v. Murphy, 117 Ky. 640, 78 S. W. 482

(1904); Purvis v. Carpenters, 214 Pa. St. 348, 63 Atl. 585 (1906); Sailors' Union v. Hammond Lumber Co., 156 Fed. 450 (1908); Buck's Stove and Range Co. v. A. F. of L., 36 Wash. L. Rep. 882 (1908); Newton Co. v. Erickson, 126 N. Y. Supp. 949 (1911).

But the recognition of "probable expectancies" as property was not in itself sufficient to complete the chain of reasoning that justifies injunctions in labour disputes. It is well established that no recovery can be had for losses due to the exercise by others of that which they have a lawful right to do. Hence the employers were obliged to charge that the strikes and boycotts were undertaken in pursuance of an unlawful conspiracy. Thus the old conspiracy doctrine was combined with the new theory, and "malicious" interference with "probable expectancies" was held unlawful. Earlier conspiracy had been thought of as a criminal offence, now it was primarily a civil wrong. The emphasis had been upon the danger to the public, now it was the destruction of the employers' business. Occasionally the court went so far as to say that all interference with the business of employers is unlawful. The better view developed was that interference is prima facie unlawful, but may be justified. But even this view placed the burden of proof upon the workingmen. It actually meant that the court held the conduct of the workingmen to be lawful only when it sympathised with their demands.

During the eighties, despite the far-reaching development of legal theories on labour disputes, the issuance of injunctions was merely sporadic, but a veritable crop came up during 1893-1894. Only the best-known injunctions can be here noted. The injunctions issued in the course of the Southwest railway strike in 1886 and the Burlington strike in 1888 have already received mention. An injunction was also issued by a Federal court during the miners' strike at Cœur d'Alène, Idaho, in 1892.6 A famous injunction was the one of Judges Taft and Ricks in 1893, which directed the engineers who were employed by connecting railways to handle the cars of the Ann Arbor and Michigan railway, whose engineers were on strike. This order elicited much criticism because it came close to requiring men to work against their will. This was followed by the injunction of Judge Jenkins in the Northern Pacific case, which directly prohibited the quitting of work.8

6 Cœur d'Alène Mining Co. v. Miners'

Union, 51 Fed. 260 (1892).

7 Toledo, etc., Co. v. Pennsylvania Co., 54 Fed. 730 (1893).

8 Farmers' Loan and Trust Co. v. N. P. R. Co., 60 Fed. 803 (1894).

9

From this injunction the defendants took an appeal, with the result that in Arthur v. Oakes it was once for all established that the quitting of work may not be enjoined.

During the Pullman strike numerous injunctions, most sweeping in character, were issued by the Federal courts, upon the initiative of the Department of Justice. 10 Under the injunction which was issued in Chicago arose the famous contempt case against Eugene V. Debs, which was carried to the Supreme Court of the United States. The decision of the court in this case 11 is notable, because it covered the main points of doubt above mentioned and placed the use of injunetions in labour disputes upon a firm legal basis.

Another famous decision of the Supreme Court growing out of the railway strikes of the early nineties was in the Lennon case 12 in 1897. Therein the court held that all persons who have actual notice of the issuance of an injunction are bound to obey its terms, although the order may not be especially directed to them nor served upon them. Thus was sanctioned the so-called "blanket injunction."

During the eighties there was much new legislation applicable to labour disputes. The first laws against boycotting and blacklisting, and the first laws which prohibited discrimination against members who belonged to a union, were passed during this decade. At this time also were passed the first laws to promote voluntary arbitration, and most of the laws which allow unions to incorporate. Only in New York and Maryland were the conspiracy laws repealed. Four States enacted such laws and many States passed laws against intimidation. 13 Statutes, however, played at that time, as they do now, but a secondary rôle. The only statute which proved of much importance was the Sherman Anti-Trust Act. When Congress passed this act in 1890, few people thought it had application to labour unions.

963 Fed. 310 (1894).

10 So. Cal. Ry. Co. v. Rutherford, 62 Fed. 796 (1894); U. S. v. Elliott et al., 62 Fed. 801 (1894); Thomas v. Cincinnati N. O. & T. P. R. Co.- In re Phelan, 62 Fed. 803 (1894); U. S. v. Alger, 62 Fed. 824 (1894); U. S. v. Debs, 64 Fed. 724 (1894). The newspapers of the time show that injunctions like these were issued by the Federal courts in all districts affected by the strike.

11 In re Debs, 158 U. S. 564 (1895). 12 In re Lennon, 166 U. S. 548 (1897). 13 Nearly all of the laws passed since 1880, which relate to the doctrines of conspiracy in industrial disputes, are still in force. For a summary of the laws, see "Strikes and Lockouts," in Commissioner of Labor, Third Annual Report, 1887, 1146-1164; and "Strikes and Lockouts," in Sixteenth Annual Report, 1901, 9861036.

In 1893-1894, however this act was successfully invoked in several labour controversies, notably in the Debs case.14

THE LATEST ATTEMPT TOWARD A LABOUR PARTY

Defeats in strikes, depression in trade, a rapidly falling labour market, and court prosecutions were powerful allies of those socialistic and radical leaders inside the Federation who aspired to convert it from a mere economic organisation into an economic political one and to make it embark upon the sea of independent politics.

A change of position upon the question of politics was foreshadowed in the resolutions adopted by the convention of the Federation in 1892. Two of the leading planks of the Populist platform the initiative and referendum and government ownership of the telegraph and telephone system—were indorsed.15 Even more significant was the instruction given to the Executive Council, "to use their best endeavour to carry on a vigorous campaign of education by appointing organisers, lecturers, and supplying economic literature to affiliated organisations in order to widen the scope of usefulness of the trade unions in the direction of political action. But," the resolution continued, "we wish the distinction to be made that partisan politics should not be confounded with the business of the trade unions." 16

The convention of 1893 is memorable in that it submitted

66

to the consideration of affiliated unions a political programme." 17 The preamble to the programme recited that the English trade unions had recently launched upon independent politics "as auxiliary to their economic action." The eleven planks of the programme demanded: compulsory education; the initiative; a legal eight-hour work-day; governmental inspection of mines and workshops; abolition of the sweating system; employers' liability laws; abolition of the contract system upon public work; municipal ownership of electric light,

14 U. S. v. Workmen's Council, 54 Fed. 994, 57 Fed. 85 (1893); Waterhouse v. Comer, 55 Fed. 149 (1893); Toledo, etc., R. R. Co. v. Pennsylvania R. R. Co., 54 Fed. 730 (1893); U. S. v. Alger, 62 Fed. 824 (1894); U. S. v. Debs, 64 Fed. 724

(1894); In re Grand Jury, 62 Fed. 840 (1894).

15 American Federation of Labor, Proceedings, 1892, p. 43.

16 Ibid.

17 Ibid., 1892, 36.

gas, street railway, and water systems; the nationalisation of telegraphs, telephones, railroads, and mines; "the collective ownership by the people of all means of production and distribution"; and the referendum upon all legislation.

The programme was submitted by Thomas J. Morgan, a socialist from Chicago, representing the International Machinists' Union, and received a more than passive support from Gompers 18 and P. J. McGuire. 19 Only one real test vote upon the political programme was had in this convention. It came upon a motion to strike out the recommendation to affiliated unions to give the programme their "favourable consideration." The vote against the recommendation was 1,253 to 1,182. McGuire voted with the majority and Gompers refrained from voting. Very strangely, the conservative typographical union voted solidly to recommend "favorable consideration." With this recommendation stricken out, the submission of the programme was carried by the overwhelming vote of 2,244 to 67.

Several other resolutions adopted by the convention of 1893 are of significance in this connection. One of these instructed the Executive Council to bring about an alliance with the farmers' organisations "to the end that the best interests of all may be served." 20 Another resolution renewed the demand for the nationalisation of the telegraph system. 21 Finally there was a declaration in favour of the free coinage of silver as "one of the means of relieving the present monetary stringency, and of a return to national prosperity." 22 The Federation had been officially represented at the bi-metallic convention in Chicago during the summer, although there had been no previous endorsement of bi-metallism.23

Immediately after the convention of 1893 affiliated unions began to give their endorsement to the political programme.

18 He said in the presidential address: ". . . An intelligent use of the ballot by the toilers in their own interest must largely contribute to lighten the burthens of our economic struggles. Let us elect men from the ranks of labor to represent us in Congress and the Legislatures whenever and wherever the opportunity presents itself. Let us never be recreant to our trust, and, regardless of political affiliations or predilections, always vote against those who are inimical to the interests of labor." Ibid., 1893, p. 12.

19 McGuire favoured an alliance with the People's party. To him the existing depression and the demonetisation of silver were but parts of a great conspiracy "to bring American labor to the pauperised condition of the workers of foreign lands." Carpenter, August, 1893.

20 American Federation of Labor, Proceedings, 1893, 37.

21 Ibid., 34.

22 Ibid., 60.

23 Cleveland Citizen, Aug. 12, 1893.