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controlling wheat market at Detroit for parties called the May deal. The scheme was “ to force a fictitious rise in values.” The court held that the money advanced for the purpose of making a “corner" in wheat, could not be recovered by any legal measures and this, too, independently of statute. 6. There is no doubt that modern ideas of trade have practically abrogated some common-law doctrines which are supposed to unduly hamper commerce.' do not feel called upon to regard so much of the common law to be obsolete as treats these combinations as unlawful, whether they should now be held punishable as crimes or not. The statute of New York, which is universally conceded to be a limitation of the common-law offenses is referred to in Arnot v. Coal Co.,' as rendering such conspiracies unlawful, and this had been previously held in People v. Fisher, where the subject is discussed at length. There may be some difficulty in determining such conduct to be in violation of public policy, where it has not before been covered by statutes as precedents. But in the case before us the conduct of the parties comes within the undisputed censure of the laws of the land, and we cannot sustain the transaction, without doing so on the ground that such dealings are 80 manifestly sanctioned by usage and public approval, that it would be absurd to suppose the legislature, if attention were called to them, would not legalize them. We do not think public opinion has become so thoroughly demoralized; and until the law is changed, we shall decline enforcing such contracts. If parties see fit to invest money in such ventures, they must get it back by other than legal measures." 3

6. But we

1 60 N. Y. 558. 2 14 Wend. 9.

3 See Sampson v. Shaw, 101 Mass. 145; Crawford v. Wick, 18 Ohio, 190; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Central Obio Salt Co. v. Guthrie, .35 Ohio, 666. “Whenever a particular staple is essential to the health and comfort of a community, a combination to absorb it, for the purpose of extortion, is invalid.” 1 Hawk. P C., ch. 80, § 1; 1 Bl. Com. 150; Rex o. Waddington, 1 East, 43; Indian Bagging


Of the same character would be an agreement between all the transportation companies of a particular territory, which was made for the purpose of preventing competition, and controlling the rates of charges for transportation. Such agreements are void. The only ground upon which the prohibition of combinations in such cases may be justified is that such combinations tend to give to the members of them an undue and dangerous power over the needs and necessities of the people; and for that reason it is a legitimate exercise of police power to prohibit such combinations. Such a law does not interfere with the equal freedom of all to do what they will with their own. Every one is left free to do or act as he pleases, but he is not allowed to deny to others an equal freedom, not even with their consent. Public policy, the public safety, requires the probibition.

Since the common law made it an indictable offense for one man to “ corner” the market, there can be no question that the combination of two or more to buy up any article of merchandise, and force the payment of exorbitant prices, is a criminal conspiracy, and may be punishable without further legislation, if public opinion did not look so leniently upon such transactions.?


Co. o. Cock & Co., 14 La Ann. 164; 1 Smith's Lead. Cas. 307, 381; Lang v. Weeks, 2 Ohio (n. s.), 519; Thomas v. Tiles, 3 Ohio, 74; Barry v. Croskey, 2 Johns. & H. 1.

1 Maguire v. Smock, 42 Ind. 1; Staunton v. Allen, 5 Denio, 434; Hooker v. Vandewater, 4 Denio, 349; Oregon St. Nav. Co. v. Winsor, 20 Wall. 64.

? “ By the law of New York, no conspiracies are punishable criminally, except those there stated, and among others the conspiracy of two or more persons to commit any act injurious to the public health, to public morals, or trade or commerce, or for the perversion or obstruction of justice, or due administration of the laws' shall constitute a misdemeanor. Under this broad and comprehensive language, which is practically the rule in all the States, either by adoption of the common law or express statute, it will not be difficult to punish infamous conspiracies or combinations, whether their object be to affect the necessaries of life, or securities, or other property in which the public have an interest." Dos Passos on Stock Brokers 462, 463; Peck v. Gurney, L. R. 6 H. L. C. 377; Pasley

§ 97. Boycotting. — In the last few years, and particularly in the current year, the industrial world has been greatly agitated by the employment by trade unions in their contest with the employers of a system of warfare, known as boycotting. The origin of the term is involved in some uncertainty, but the name is believed to have arisen during the Irish land troubles a few years ago, in consequence of the manifesto of the Irish land league, that the payment of rents will be refused, if they were not reduced to what was claimed by the league to be a reasonable amount. During the disturbances which followed this attempt to carry the manifesto into effect, the peasants came into conflict with a landlord named Boycott. He had been known to be specially severe in making terms with his tenants, and when he refused to accede to the demands of the league and evicted his tenants for refusing to pay rent, almost the entire population of that community combined to force him to terms. The bakers, butchers and other tradesmen refused to have dealings with him. He could buy nothing wherewith to feed his family. All his domestic servants left him, and he could get none to take their place. He and his family were left alone in the midst of a populous community. Existence under such circumstances became unbearable, and he was forced to yield. The success of the combination was hailed with delight by the Irish peasantry and their sympathizers, and the method or plan adopted to attain the end desired became known as “ the boycott.” The boycott, unaffected by complications arising from distinct trespasses upon the rights of others, may be defined as being a combination to force one to terms by abstaining from having business and social relations with him. And in order to make the combination more effective in its operations against one person, the members of the union usually threaten to “boycott » all others who may dare to have relations of any kind with the objectionable person. So far as the managers of a boycott are able to keep themselves and their followers from interfering with the rights of person or of property of those who are boycotted, their action is not illegal at common law, and is not illegal in any American State in which the common law has not been changed by statute. For while all contracts or agreements to obey the orders of a trade union in its contests with employers are void, and cannot be enforced in a court of law, the combinations of labor do not constitute a civil or criminal wrong, as long as the members of the combination do not employ force, or otherwise interfere with the legal rights of their opponents. As has already been stated, it is the constitutional right of every American citizen to refuse to have business and social relations with any one who may displease him, and his motives for abstaining from associating with the objectionable person can not be inquired into. So also is it no criminal or civil wrong at common law to conspire or combine to do an act which is lawful for the single individual to do.3 As long, therefore, as boycotters simply refrain from having dealings with the objectionable person, and induce others to do the same by applying the boycott to them, they commit no crime and are liable for no civil wrong. But the boycott, pure and simple, is very rarely efficacious in bringing the employer or capitalist to terms; and the boycotters, after trying for a while to keep within the law respecting the rights of their powerful opponent, soon are forced either to surrender to the enemy, or to do

v. Freeman, 3 J. R. 51; Bevan v. Adams, 19 W. R. 76; Beatty v. Evans, L. R. 7 H. L. C. 102; Pontifex v. Bignold's, 3 Scott, N. R. 390; Moore o. Burke, 4 F. & F. 258; Cross v. Lockett, 6 Abb. Pr. 247; Wakeman v. Dalley, 44 Barb. 498; Cazeaux v. Mali, 25 Barb. 578; Mouse o. Switz, 19 How. 276; In re Chandler, 13 Am. Law Reg. (N. s.) 260; 8. c. Biss. C.C. 53; sub. nom. Ex parte Young.

1 See ante, $ 96. . See ante, $$ 95, 96. 3 See ante, S 96.

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violence to his personal and property rights. It happened thus in the great railroad strikes of the present year and in all other prominent cases of boycott. A legitimate engine of industrial warfare was turned into an illegal trespass upon private right. And so it will always be in the absence of police regulation. The sharp competition of modern trade; the rapid increase in the productivity of labor-saving machines ; in fact, all the characteristics of modern industry tend to sharpen the struggle for existence on the part of the weaker; and the latter has presented to him the alternative of barely eking out an existence on a mere pittance, or wresting by unlawful means a more comfortable living from those, who by a superior physical or intellectual strength, or by chicanery, have been able to gather together an undue share of the world's wealth, and public disorder and general insecurity ensues. So far as we are able to fathom the mysteries of social life, the whole social fabric is in danger when the personal and property rights of the individual are not afforded ample protection against unlawful attacks. Public disorder, which is the ordinary accompaninient of the boycott, is also highly injurious to the commonwealth. In accordance, therefore, with the maxim

, salus populi suprema lex, the boycott may be properly prohibited by law. But, in the absence of a statute, boycotts, when not accompanied by overt attacks upon personal or property rights, like all other strikes on the part of labor organizations, are legal and cannot be suppressed by law.

In consequence of the punishment of boycotters in New York and in the United States courts, it has become the popular impression that the boycott is, according to the common law, a criminal offense. But this is a mistake. On the statute books of New York, and of the United States, there are statutes defining the crime of conspiracy, the

§ 97

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