INJUNCTION AND ORGANIZED LABOR.

BY

CHARLES CLAFLIN ALLEN,

OF ST. LOUIS, MISSOURI.

Since the subject of this paper was selected, and work upon it begun, history has been making with startling rapidity. Events have tripped upon the heels of events.. The phases of the law have changed with the variety and celerity of the kaleidoscope, the essential elements remaining the same, and the appearance depending upon the angle of reflection.

It is unnecessary to give a definition of "Organized Labor." Its existence is too patent, its manifestations too evident, to require amplification. The term covers alike the numberless local trades unions of small membership and the vast combinations of wage-earners claiming membership in the hundreds of thousands. The question for consideration is the application of injunction and the rules of equity procedure to these masses of men, under conditions which threaten irreparable injury to private property, and interference with the rights of the public; a question of the most vital importance at the present time, and one which it is impossible to approach without the gravest sense of its momentous consequences.

The whole scope of human law is summed up in the first definition of Justinian's Institutes: Justitia est constans et perpetua voluntas jus suum cuique tribuendi. It is not obedience to command, nor the servile fear of disobedience, but the constant and perpetual wish of rendering to every man his right, that makes justice.

Equity, like its Roman prototype, Aequitas, has always manifested a tendency to approximate the ideal conception

contained in Justinian's definition. Its appeal to the conscience of the chancellor demonstrates its origin in a moral force, not found in the rigid rules of the common law; and the highest expression of equity jurisprudence is found in its first and foundation maxim, ubi jus ibi remedium. "Equity, then, in its true and genuine meaning," says Blackstone, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule." Such a system should command the profound respect of all American lawyers. Its prerogatives should be strenuously maintained, its jurisdiction. jealously guarded.

Injunction is "the strong arm of equity." With it the Court of Chancery reaches out to stay irreparable injury, and to draw within its grasp those who disobey its mandate. "A writ of injunction," says Mr. High, "may be defined as a judicial process, operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing. In its broadest sense, the process is restorative as well as preventive, and it may be used both in the enforcement of rights, and in the prevention of wrongs. In general, however, it is used to prevent future injury rather than to afford redress for wrongs already committed, and it is therefore to be regarded more as a preventive than as a remedial process. If the injury be already committed, the writ can have no operation to correct it, and equity will not interfere for purposes of punishment, or to compel persons to do right, but only to prevent them from doing wrong."3

The application of injunction and equity procedure to aggregations of workingmen involves the solution of intricate and perplexing problems. Jurisdiction in such cases is based, first, upon criminal conspiracy; and second, upon injury to property resulting from such conspiracy.

A criminal conspiracy has been defined to be: "Any combination between two or more persons to accomplish an

unlawful purpose, or a lawful purpose by unlawful means.' The books from the earliest days are full of reiterations of this definition. Hawkins, in his Pleas of the Crown (Book 1, c. 27, s. 2), lays it down that, "there can be no doubt but that all confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law; as where divers persons confederate together by indirect means to impoverish a third person."

In an anonymous case in 12 Modern (248, case 427, 1698), leave was given to file an information against several plate button makers for combining by covenants not to sell under a set rate, and Chief Justice Holt said: "It is fit that all confederacies, by those of a trade to raise their rates, should be suppressed." In Bolton's Justice (vol. 2, p. 16), it is declared that any such conspiracy is an offense at common law. So in 1 Keble, (650, report of Rex vs. Sterling), Chief Justice Hyde says that the very conspiracy, without an overt act, to raise the price of pepper, or other merchandise, is punishable.

It will be noticed that these cases relate to those engaged in trade; yet they are cited as leading authorities in support of prosecutions against laborers for combinations to raise wages, as our own "Anti-Trust" law is first invoked against strikers.

But the most notable illustration of the biblical assertion that "there is no new thing under the sun" is found in the Liber Assissarum, 27 Edw. III. (pp. 138, 139), five years after the first of the "Statutes of Labourers," where, among other conspiracies directed to be investigated by the inquests of office, is that "of merchants, who by covin and alliance. among themselves, in any year put a certain price on wools, which are to be sold in the country, so that none of them will buy, or otherwise pass in the purchase of wools beyond the certain price which they themselves have ordained, to the great. impoverishment of the people."

More than five hundred years ago our English ancestors were faced with the problem of "Trusts," and legislated

against them. Whether the inquest of office was more successful in 1354 than in 1894, history is silent."

But the leading case on common law conspiracy is The King vs. The Journeymen Tailors of Cambridge (8 Mod. 11), whose authenticity has been so much disputed; where the rule is declared that, "a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them, or any of them to do, if they had not conspired to do it." This case, in turn, cites as its authority the mythical case of The Tub-Women vs. The Brewers of London, whose identity has puzzled the wits of advocates, judges and textwriters, but which is commonly believed to be the case of The King vs. Sterling (1 Keble, 650), in which certain brewers were indicted for conspiring to cease making small beer, and thus incite a riot and deprive the King of his excise.

The King vs. Journeymen Tailors of Cambridge was decided in 1721, and has been frequently followed in English cases, and the doctrine it laid down was the early rule in this country as applied to combinations of laborers. The authenticity, and therefore the authority, of this ancient case raises an extremely perplexing question, namely: whether a combination among laborers to raise wages was a criminal conspiracy at common law. It is also an extremely important question, since, if it was the common law, it is still the law in such States as have not adopted special statutes; and it is important for the further reason that even where other circumstances exist to establish a conspiracy, nevertheless, the effort to raise wages is usually the foundation of the whole matter.

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In the case of the Boot and Shoemakers of Philadelphia, tried in 1806, and that of the Journeymen Cordwainers of the City of New York, in 1809,10 and the Pittsburgh Cordwainers, in 1815," the doctrine of the Journeymen Tailors of Cambridge case was sustained, though its authenticity was strenuously denied by counsel, especially in the New York case, with a degree of forensic learning, logic and wit rarely equaled.12

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But in Commonwealth vs. Carlisle, in 1821, Judge Gibson, of the Supreme Court of Pennsylvania, announced a different. rule. That case was habeas corpus, brought by certain master shoemakers who had been convicted of a conspiracy not to employ journeymen except at a certain reduced rate, which, however, was the rate paid before the defendants had been compelled by a combination of journeymen to advance it. Judge Gibson declared that it had never been decided in England that it was unlawful for journeymen to agree that they would not work, except for certain wages, or for master workmen to agree that they would not employ any journeymen except at certain rates. He further says: "The unsettled

state of the law of conspiracy has arisen, as was justly remarked in the argument, from a gradual extension of the limits of the offense; each case having been decided on its own peculiar circumstances, without reference to any pre-established principle."

Judge Daly, in The Master Stevedores' Association vs. Walsh, decided in 1867,14 approves the views of Judge Gibson, and criticises at length the correctness of the Cambridge. Tailors' case as an authority. Other judges of high standing have done the same.15

So far as the English cases are concerned, it cannot be doubted that the shadow of the Statutes of Labourers hung over them all; statutes which, from 1350 to 1825, in evervarying form but never-varying severity, placed the laborer under compulsions and restrictions which permitted him little of the semblance of a free agent. Great doubt surrounds the whole subject of common law conspiracy, and that point of view is well expressed by Mr. Justice Stephen in his work on the Criminal Law of England, where he says:

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"1. No case has ever been cited in which any person was, for having combined with others for the raising of wages, convicted of a conspiracy in restraint of trade at common law before the year 1825. There is, indeed, one case, that of the journeymen tailors of Cambridge, which may perhaps be an authority the other way, but this appears doubtful.

"2. There are some dicta to the effect that such combinations would be unlawful. The most important of these is the dictum of Grose, J., in