, iVBOR. IN ITS RELATIONS 
 
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 LAW
 
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 F. J. STIMSOX 
 
 Al'THOR OK 'AMKRICAN STATUTE LAW," " HAND-DOOK TO TUB 
 LABOR LAW OK IHK INrrKI) fcllATKS," ETC., K 1 C. 
 
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 XKW YORK 
 
 charij:s scribnkr's sons 
 
 1895 
 
 Oct. So2,
 
 Copyright, 1895, by 
 CHARLES SCRIBNER'S SONS 
 
 TROW DIRECTOR'^ 
 
 WRINTINQ AND eOOKB'NDINQ COMPANy 
 
 NfcW rOHK
 
 HP 
 
 CONTENTS 
 
 I 
 
 PAGE 
 
 History of the Law of Labor i 
 
 II 
 
 TiiK Employment Contract, 40 
 
 III 
 
 Strikes and Boycotts, 78 
 
 IV 
 
 Forecast ok the Fi ture, iiS
 
 LABOR IN ITS RELATIONS TO 
 LAW 
 
 I 
 
 HISTORY OF THE' LAW OF LABOR 
 
 Earliest Employment Relation was Slavery. 
 
 Logically, the simplest relation of employer and 
 employee is that of slavery, and it is convenient, in 
 sketching the history and tendency of this em- 
 ployment relation — certainly the second in impor- 
 tance of human relations — that this is so ; for his- 
 torically, also, it came first ; the simplest came 
 first. 
 
 The greatest ethical lesson of modern historical 
 research has, I think, been to tlestroy the fiction 
 of the Golden Age. For all classical writers refer 
 to an actual time when all things were perfect, 
 and whence humanity has deteriorated to modern 
 faults and modern laws. Perhaps there is a sur- 
 vival of this cla.ssic tradition in the rhetoric of the 
 modern demagogue, who usually assumes that 
 mankind, and more specifically the growing gen-
 
 2 LABOR IN ITS RELATIONS TO LAW 
 
 eration, are naturally perfect, and would always 
 seek the better reason were it free to them to 
 choose. Unhappily, neither the age of gold nor' 
 the heart of gold is a reality. They are to be won 
 by hard work, and by training of character, con- 
 sciously directed ; and the solace lies in this, that 
 we have now put them in the future rather than 
 the past. 
 
 The earliest and simplest relation, then, of human 
 labor is that of slavery ; and the conflicts of this 
 day are nothing new, but are to be found in his- 
 tory, particularly in the history of our own race. 
 Perhaps, even, we shall not find the remedies new, 
 or new in principle, at least, though we may have 
 better hope of them in our time than of old, now 
 that the coarsest work is done for us by nat- 
 ural agencies, and humanity has, or should have, 
 leisure for reason and kindliness. 
 
 Present Altruistic Tendency to Favor Labor. 
 
 The writings of Kidd and others are not neces- 
 sary to tell us that the universal tendency among 
 people who think to-day is one of allowance for 
 presumption in favor of the laborer as against his 
 employer. Possibly this is solely due to the fact 
 that the great sins of the employer of labor are all 
 past. As Herbert Spencer has pointed out, com- 
 plaints only become audible when the serious dan- 
 ger of their cause has been removed. So, women
 
 HISTORY OF THE LAW OF LABOR 3 
 
 never complained of dependence until the law be- 
 gan to make them independent. But I think we 
 are all glad of this fact — glad that our news- 
 papers, our speakers, and our writers are easily led 
 to take a side, where they can, for the cause of 
 labor. The world has been organized alwa}^ in the 
 interest of the clever few. No greater interest lies 
 in life to-day than how so to regulate it as to give 
 the multitude their chance. I assume that we all 
 come here predispositioned to that side. I shall 
 frankly take that position in these lectures. But 
 if we so put ourselves in the place of the laborer, 
 or the laborer's friend, our first duty is clearly to 
 see that no fault, no unfairness, no back-sliding 
 into older, worse conditions be on our side. As 
 the advocate of more equitable treatment for work- 
 ingmen we should come into our court with clean 
 hands. I say this at the start lest you should 
 later think me over-scrupuloas in showing where 
 modern labor agencies are unjust, where they 
 overstep the mark, where they restrict liberty — 
 Anglo-Saxon liberty ; the kind that our race alone 
 has won — and where they show a tendency to go 
 back to the cruder remedies of earlier times, or to 
 the less ennobling social order of inferior races. 
 
 Agricultural Labor Peculiar in its Conditions. 
 
 I shall not delay to speak of agricultural labor. 
 The farmer and the husbandman have their own
 
 4 LABOR IN ITS RELATIONS TO LAW 
 
 problems to solve ; they are affected by peculiar 
 conditions, by necessary peculiarities in tlie owner- 
 ship of the soil, the nature and proprietorship of 
 the land, their raw material, being the land itself. 
 So far as their conditions can be altered by any- 
 thing we can do, they are benefited by the gen- 
 eral advance of other laborers as they are injured 
 by their general degradation. But the fact that 
 the problems of agricultural labor are peculiar is 
 shown as clearly in the latest statutes of our West- 
 ern States — in Nebraska, for instance, whose drastic 
 eight-hour law did not pretend to extend itself to 
 the people on farms — as in the earliest known con- 
 dition of things in England, where the villain was 
 appendant to the land like a tree and could only 
 be severed from it by death or sale. Still he was 
 never a slave. It is important to remember this, 
 as for a long time the contrary theory was main- 
 tained ; but even the agricultural laborer was never 
 a slave in England. There was a real bargain, 
 says Thorold Rogers, between lord and serf. The 
 serf may have had few rights of property, but he 
 had more rights of person, and he was at least se- 
 cure from dispossession. Although he was dis- 
 abled from migrating to any other habitation than 
 the manor of his settlement, and could not bear 
 arms in the militia, he always could bear arms in 
 the army of the king ; and, so long as he stayed 
 at home, his relation to the lord was a definite
 
 HISTORY OF THE LAW OF LABOR 5 
 
 contractual right, which might be commuted, and 
 early was, into a small money ])ayment, whicli 
 is practically indistinguishable from rent for his 
 land. 
 
 But Slavery never Existed Among Anglo-Saxons. 
 
 We start, then, here : Though slavery is the 
 simplest labor relation, it has not existed, at least 
 within historic times, in our race — a peculiar rea- 
 son why we may claim England as the birthplace 
 of modern industrial conditions. And if the 
 agricultural laborer was not a slave, the artisan was 
 still less so. No vestige, in the earliest times, of 
 any servile relation can be found. Artisans were 
 localized, it is true, because staying in one place 
 was part of the general social condition of the 
 time. The smith, the farrier, the two or three 
 shepherds, the miller, later the carpenter, the tan- 
 ner or shoemaker, later still the weaver and the 
 baker, each belonged to one or, at most, to two 
 or three neighboring communities, and .served all 
 indiscriminately for a fi.xed wage, paid at first by 
 the day, later by the piece ; and if the lord him- 
 self exacted his services and did not pay for the 
 same with the rest, it was either a clear extortion 
 (for we are here stating the facts, not denying that 
 there grew up in the feudal baron a very definite 
 notion of servile relation from his tenants to him) 
 or supposed to be in commutation of rent.
 
 6 LABOR IN ITS RELATIONS TO LAW 
 
 Later attempts were indeed made — one in the 
 time of Henry II., another in that of Elizabeth — 
 on the part of the privileged classes to put the in- 
 dustrial laborer also into servile relation, and their 
 chancellors naturally endeavored to justify the 
 step by historic precedent ; but I think I have 
 stated the best modern opinion of the fact. 
 
 Earliest English Labor Relation One of Separate Con- 
 tract. 
 
 We start, therefore, with our industrial laborer 
 a free individual, and his relation one of separate 
 contract with his employer. Such is substantially 
 the letter of the law to-day. But the very latest 
 definition I find in one of the very latest works on 
 labor, published only last year, is, that the essence 
 of the modern trade-union is " collective bargain- 
 ing," that is, endeavoring to enforce a relation, 
 not of separate and separable contract between the 
 employers and each employee, between the lord 
 and each peasant, but a contract between the em- 
 ployer, or the neighboring or related bodies of 
 employers, and the workman, or a controlling 
 force of the workmen organized into a trade- 
 union. But thus far, also, we had progressed 
 some eight hundred years ago — in the medieval 
 guild. The substantial distinction between the 
 oldest form of guild and the modern trade-union 
 would appear to be that the bond of the guild was
 
 HISTORY OF THE LAW OF LABOR 7 
 
 rather local, while that of the trade-union is the 
 nature of the employment. Still, even in tliis 
 particular, as we all know, the general guild of an 
 English borough was soon differentiated into the 
 separate guilds of the various crafts, arts, or mys- 
 teries which made up its industrial body politic. 
 And again, just as the latest report of the British 
 Royal Commission comjilains that the essence of 
 trade-unionism is not solidarity, but protection of 
 a special trade or part of it ; so the essence of the 
 mediaeval guild was monopoly. Perhaps its ear- 
 liest object was to prevent the employment of 
 strangers, and our oldest law reports are full of 
 cases of subtle by-laws and regulations which far 
 surpass in complexity the restrictions of the nar- 
 rowest trade-union or the most exclusive modern 
 club. The Royal Commission's report just men- 
 tioned complains that when the representatives of 
 the Amalgamated Society of Engineers spoke of 
 the necessity of absorbing the unem])loyed, they 
 announced their intention of jjutting further re- 
 strictions on the admission of apprentices to their 
 trade. In other words, they contem])lated not 
 the employment of the unemployed, but their ex- 
 clusion from the organization and industry of the 
 Amalgamated Society of Engineers. Now, most 
 of the things which seem to us to smack of slavery 
 in mediceval regulations arise from this ])rinciple, 
 which is really one oi privilege. Membership in a
 
 8 LABOR IN ITS RELATIONS TO LAW 
 
 local guild was a birthright. It was, therefore, 
 no such great unfairness, that a person who sought 
 employment in some other town might be dragged 
 back to his native field to labor, when it was thus 
 artificially protected for him. This was the chief 
 artificial regulation. Otherwise the relations of 
 laborer and lord were left much to settle them- 
 selves, both sides relying on natural causes for the 
 supply of laborers and of labor to be done. The 
 lord could exact a fine from an absconding serf; 
 on the other hand, the serf could not gain en- 
 trance in the guild of a town not his own until 
 he had resided and worked in it for a year and a 
 day. There was no attempt at the regulation of the 
 price of labor ; but for some centuries matters went 
 on in this way — a condition of affairs by no means 
 so unlike that now recognized by law as were con- 
 ditions which afterward happened in the sixteenth, 
 or may now happen in the twentieth, century. 
 
 And the law never attempted to fix the price of 
 the raw material ; but it did soon attempt to fix 
 that part of the price of a necessary commodity 
 which was determined by human agencies alone. 
 And this would appear to have been the danger- 
 ous precedent. 
 
 The Statute of Laborers. 
 
 So matters went on until the middle of the four- 
 teenth century, when was passed the Statute of
 
 HISTORY OF THE LAW OF LABOR 9 
 
 Laborers. Up to that time matters had gone on 
 fairly well, and had adjusted themselves. The 
 agricultural laborer got wages sufficient for his 
 support, the artisan from two to three times as 
 much, the clerk or scribe rather less than the art- 
 isan ; nor were the hours of labor long. Thorold 
 Rogers proves pretty conclusively that they were 
 probably only eight hours a day, and the workman 
 was paid extra for overtime. What brought this 
 state of affairs to an end, and that in a purely for- 
 tuitous way, appears to have been the great plague, 
 known as " the black death," in 1348. The first 
 effect of this, of course, by vastly decreasing the 
 supply of labor, was to double or treble wages. 
 Prices in general went up, though not in the same 
 proportion. The small farmer was little injured ; 
 but the large land-owner, the lord, or, as we should 
 say, the capitalist, thought he was ruined. Then, 
 with the bad example of the laws attempting to 
 regulate prices before him, he induced, first, the 
 king to issue a proclamation, that, despite the de- 
 mand for labor, no higher than customary wages 
 should be paid ; and then, as this was necessarily 
 disregarded, the Parliament i)assed the statute 
 which remained a law until the fifth year of Queen 
 Elizabeth, and contained eight clauses, of which, 
 leaving out those which merely concerned the 
 form of penalty, four concern us to-day. These 
 four are, substantially :
 
 lo LABOR IN ITS RELATIONS TO LAW 
 
 1. No person under sixty, serf or free, shall de- 
 cline to undertake farm labor at the wages that 
 had been customary in the year 1347, except they 
 were possessed of lands or private means or en- 
 gaged in some mechanical or mercantile industry ; 
 the lord having the first claim to their labor, but 
 those who declined to work either for him or for 
 others could be sent to the common jail. 
 
 2. Artificers were made liable to the same con- 
 ditions, and the artificers enumerated were sad- 
 dlers, tanners, curriers, shoemakers, tailors, smiths, 
 carpenters, masons, tilers, pargetters (plasterers), 
 carters, and others. Doubtless they Avould have 
 extended the law to operatives in the textile in- 
 dustries, but that at that time these were neces- 
 sarily possessed of special skill, and their craft was 
 enough of a " mystery " to lie outside of the care 
 of the English privileged classes, it being mostly 
 in the hands of Flemings or other foreigners. 
 
 3. That food must be sold at reasonable prices, 
 and, 
 
 4. Alms -giving to able-bodied laborers was 
 strictly forbidden. 
 
 Labor Compulsory. 
 
 It will be noted that there are three important 
 principles in this statute : first, that of compul- 
 sory labor; second, the legal limitation of wages; 
 and third, the prohibition of alms-giving, or chari-
 
 HISTORY OF THE LAW OF LABOR n 
 
 table support. The first principle may have had 
 some effect during the two or three centuries 
 through which the law lasted ; but Thorold 
 Rogers tells us that the second principle — that of 
 the regulation of wages — did not in practice work, 
 but was commonly evaded, even in the case of 
 agricultural laborers, where, from the nature of 
 the case, it had most effect ; and the third prin- 
 ciple, that of forbidding alms-giving, was radi- 
 cally altered by the statute of Elizabeth, which 
 founded the modern poor-law system of England, 
 and which the nineteenth century has come to be- 
 lieve was the greatest of all agencies in the pau- 
 perization of English labor. ^ We will notice in 
 passing that at this time — the fourteenth century 
 — women were employed in field work, being paid 
 at the rate of a penny a day, substantially less 
 than the ordinary payment of male labor. De- 
 spite this Statute of Laborers, the ordinary wages 
 of agricultural labor increased, in men's work 
 about fifty per cent., while in women's work it was 
 doubled. The peasants, says Thorold Rogers, met 
 the laiu hy combinations ; or, in modern English, 
 the serfs entered into what are now called trade- 
 unions, and supported each otlicr in resistance of 
 
 ■ See the monumental evidence of the efTect of such state 
 help, both on economic and moral conditions, contained in 
 the voluminous report to the House of Commons in 1S34, 
 reprinted by special order in 1885.
 
 12 LABOR IN ITS RELATIONS TO LAW 
 
 the law and in demands for higher wages. Pos- 
 sibly as a consequence of this Statute of Labor- 
 ers came the celebrated insurrection of Wat Ty- 
 ler, as a result of which all the incidents of 
 villainage were abolished, and all laborers de- 
 clared free by the sovereign of England. It is 
 noteworthy that Kent took the lead in this move- 
 ment ; ''for there never have been serfs in Kent. ' ' 
 To have been born in that county was a bar to 
 the proceedings by which a lord claimed the re- 
 covery of his serf. Attempts were constantly 
 made to enforce the Statute of Laborers by sub- 
 sequent acts of Parliament ; but, says Thorold 
 Rogers, the fifteenth century was the golden age 
 of the English laborer, if we are to interpret the 
 wages which he earned by the cost of the neces- 
 saries of life. These efforts failed, and the rate 
 kept steadily high, the wages of the artisan being 
 generally sixpence a day, and the agricultural 
 laborer fourpence ; and women received from half 
 to two-thirds as much. Wages were reduced a 
 century later, under Henry VIIL , by the indirect 
 process of debasing the coinage ; and by an at- 
 tempt, partially successful, to suppress the guilds 
 and confiscate their property, both the laborer's 
 power of resistance and his benefit society were 
 taken away.
 
 HISTORY OF THE LAW OF LABOR 13 
 
 Regulation of Wages Finally Successful Under Eliza- 
 beth. 
 
 Then came the statute of EHzabeth, which first 
 successfully imposed a legal restraint upon wages, 
 both in husbandry and in handicrafts, and this 
 system was continued under legal sanction until 
 1 8 1 2 , and " by a sufficient understanding ' ' for long 
 after that date. All persons able to work as 
 laborers or artisans, and not having independent 
 means, were compelled to work upon the farms. 
 The statute both fixed the hours of work and 
 gave the justice power to fix the rate of wages. 
 Agricultural labor was further depressed, and in- 
 dustrial labor somewhat protected, by that pro- 
 vision of the statute which prohibited anyone 
 from exercising any trade, craft, or occupation 
 then in use in England and Wales without first 
 serving an apprenticeship of seven years. This 
 part of the statute, passed in 1662, was not re- 
 pealed until 1875. I shall postpone for the pres- 
 ent any notice of those statutes which provided for 
 the suppression of combinations among workmen 
 for the raising of their wages, as this matter, be- 
 longing rather to the law of remedies, will come 
 more naturally in a subsequent lecture ui)on 
 strikes and boycotts; but will note here that in 
 1796 a statute fixed a day's work at twelve hours, 
 with one hour for dinner, probably a longer day 
 than was enacted three hundred years before.
 
 14 LABOR IN ITS RELATIONS TO LAW 
 
 General Review. 
 
 So much for general review of the history of 
 Enghsh labor legislation, and it may be sum- 
 marized in the statement that the rate of wages, 
 originally left to natural laws, was attempted to 
 be fixed by law during about three centuries, and 
 a strict apprenticeship both required and limited; 
 in other respects industrial labor was always free, 
 and at liberty to seek employment where it would, 
 subject only to the limitations of place, which 
 were imposed by natural custom or by the system 
 of residence in corporate guilds and to the limita- 
 tions, or the protection, as to rates ^and employ- 
 ment which were furnished, in the interest of the 
 laborer or handicraftsman, by his own trade- 
 guilds; and since about 1812 it has been free in 
 all respects, even as to wages and prices. There 
 are thus (but separated by no clear demarcation) 
 four stages — serf-relation, guild control, state con- 
 trol, and free contract. 
 
 Modern Factory, etc., Legislation. 
 
 Nothing in a world of uncertainty can, how- 
 ever, remain crudely logical. The perfect system 
 of laissez-faire hardly lasted a generation when, 
 for an aggregation of labor, it gave way to the 
 principle of the factory acts. These began about 
 1804; and if not strange, it is suggestive, that 
 the culminating statute, the ten-hour law of 1847,
 
 HISTORY OF THE LAW OF LABOR 15 
 
 sii:,niali/.cd, with the same rejoicings on the part of 
 the laboring world, a return to the same principle 
 of privilege or state control that had been abol- 
 ished by the laboring world amid bonfires and 
 bell-ringing in the Paris of 1 791, just fifty years 
 before ; the only difference being that the older 
 system controlled prices, not conditions ; the re- 
 newal controlled conditions and not prices. 
 
 It was doubtless the modern factory which 
 brought about the change. The increased jtro- 
 portion of cai^ital to labor in production, but still 
 more the necessary localization, with its attendant 
 evils, was making the mill-hands villeins append- 
 ant to the factory as truly as in early times there 
 had been villeins appendant to the land. 'I"he 
 conditions of child-labor and woman-labor, in 
 particular, were rapidly becoming intolerable. 
 Practically as unable to leave the factory as tiie 
 villeins to leave the manor, the tyranny was as 
 insufferable, their conditions of health and morality 
 infinitely worse. Adam Smith himself foresaw 
 that before the evils of this artificial condition 
 the logic of laisscz-fairc would have to yield. 
 The factory acts passed up to 1847 were rapidly 
 copied in the manufacturing States of this country. 
 And substantially all the i)rinci])les of our later 
 legi.slation were first embodied in these statutes 
 passed in P^ngland during the early years of the 
 reign of Victoria. It may be well to get a gen-
 
 i6 LABOR IN ITS RELATIONS TO LAW 
 
 eral view of these in the time remaining for this 
 lecture, leaving out only the law directly relating 
 to the labor contract to be the main subject of 
 the next. 
 
 Eight-hour Laws. 
 
 First, let us consider the hours of labor. It 
 may be generally stated that no attempt has yet 
 been made by legislation in England or America 
 to prescribe for how long a period of each day, 
 in general occupations, a man twenty-one years 
 old shall work. I have noted that by the early 
 custom of England only eight hours was probably 
 considered a full day, and first by statute in tlie 
 early part of this century it was fixed at twelve, 
 which statute, if not inoperative, was soon re- 
 pealed. In England to-day there is great dis- 
 agreement, both among employers and among 
 laborers, as to the advisability of a general eight- 
 hour law. There are now said to be six million 
 non-unionist workers, and only one million trade- 
 unionists, up to date, in England ; the six million 
 non-unionists do not demand any system of indus- 
 trial regulation of hours of labor whatever, nor 
 even do all the trade-unionists. Many of the 
 trades complain that neither employer nor em- 
 ployed could exist under any sj'stem of regulations 
 that prevented thKm from making up in good times 
 for their losses incurred in periods of depression.
 
 HISTORY OF THE LAW OF LABOR 17 
 
 Perhaps, however, the bulk of trade-unionists have, 
 in England, accepted the principle of depriving 
 the individual of his full freedom of contract in 
 settling his hours of labor, and they partly justify 
 by the plea that such freedom is irrevocably lost 
 already; inasmuch as modern business establish- 
 ments can be conducted only on the basis of uni- 
 formity in the men's hours of labor with the 
 women's and children's which are so regulated ; 
 and the chief remaining objection in the trade- 
 unions to the government fixing the hours of labor 
 comes only in those trades which are directly sub- 
 ject to foreign competition. 
 /' 
 In the United States. 
 
 In this country the tendency has not gone so 
 far. We shall speak of women and children in a 
 moment ; but for full-grown men there is no ef- 
 fort, so far as I know, nor has any general statute 
 yet been passed, which prescribes how long they 
 shall work. 
 
 The Legislature of Massachusetts passed a reso- 
 lution this year instructing its Commissioners on 
 Uniformity of Law to introduce a recommendation 
 at the next meeting of the National Conference of 
 such Commi.ssions from all the States, to consider 
 whether by voluntary action the legal hours of 
 labor in the several States of the Union might not 
 well be made the same. But it is doubtful whether
 
 1 8 LABOR IN ITS RELATIONS TO LAW 
 
 this resolution was not meant primarily to apply 
 only to the usual statute affecting the labor of 
 women and children, or to the statute prescribing 
 how long a day's labor shall be, in the absence of 
 express contract. »The nearest law passed by any 
 State in this country to a general regulation of 
 the hours of labor was that of the State of Ne- 
 braska, passed in 1891, which provided that eight 
 hours should constitute a legal day's labor for all 
 classes of mechanics, servants, and laborers, except 
 those engaged in domestic or agricultural labor. 
 Even this statute did not prohibit contracts for a 
 longer day, but required double rates for such 
 overtime; and the statute itself has been declared 
 unconstitutional by the Supreme Court of Ne- 
 braska in a decision rendered a few months ago. 
 
 Constitutionality of such Laws. 
 
 Whether such statutes impose such a limitation 
 upon personal freedom as to be unconstitutional 
 under the inherited principles of the Anglo-Saxon 
 race, or even perhaps under our written constitu- 
 tions, is one of the most interesting questions now 
 in the public mind, which we shall consider more 
 fully when we come to speak specifically of the 
 labor contract itself. 
 
 Exceptions. 
 
 Going on now with our general view, the next 
 thing to note is that we do find a number of statutes
 
 HISTORY OF TUn LAW OF LABOR 19 
 
 which prescribe what shall 1)0 the length of a day's 
 labor in the absence of express contract to the 
 contrary, and also the entering wedge of the at- 
 tempt to regulate labor through principles of State 
 socialism in limiting the time of labor done for 
 the State, or for a town, or municipality, or any 
 contractor of public work. Thus, in the absence 
 of contract, eight States have limited the hours of 
 labor to eight hours per day, and six to ten hours. 
 The laws of Illinois also provide for an eight-hour 
 day, but expressly state that overtime work for ex- 
 tra compensation may be contracted for. In New 
 Jersey a week's work may not exceed fifty-five 
 hours. This is as far as any of our States have 
 yet gone in the direction of limiting general labor 
 of full-grown men ; but several States, and the 
 United States law, limit hours of labor done for 
 the State or on public work to eight hours, and 
 Massachusetts and Texas to nine. 
 
 Regulation of Wages. 
 
 No regulation whatever as to price has yet been 
 attempted in this country, or is attempted in mod- 
 ern times in England, with the solitary exception 
 that Massachusetts provides that cities shall pay 
 laborers a rate not exceeding $2 a day ; and, 
 as is doubtless familiar to you, many of our 
 towns and cities fix a rate — usually $2 — by ordi- 
 nance, that is, by voluntary municipal contract,
 
 20 LABOR IN ITS RELATIONS TO LAW 
 
 not by general law. There is undoubtedly a 
 strong tendency in this country to fix all public 
 work at a rate somewhat higher than the market 
 demands, usually $2 a day ; and in England 
 to require all public employers to give what is 
 called a living wage ; but so far the tendency has 
 not become the fact. Indeed, the report of the 
 last English Labor Commission shows that the em- 
 ployees of public works are paid, if anything, 
 rather less than the average rate outside, which 
 difference, it is said, is made up to the workmen 
 by greater certainty of employment. 
 
 Women-and-Children Eight-hour Laws. 
 
 When we come to women and children, we find 
 a great difference. Undoubtedly, this distinction 
 rests on the theory that both women and children 
 are wards of the State, the old theory being that 
 women were not fully citizens, and might be, 
 therefore, the subject of special protection. Sub- 
 stantially half the States in this country have a 
 provision that women and children, in factories 
 or workshops at least, may not be allowed to 
 work more than eight hours a day, this being the 
 law in Illinois and Wisconsin, or ten hours a day 
 in New England, New York, and the Northern and 
 Central States, or in any case more than forty- 
 eight or fifty-eight hours a week, respectively. 
 This statute was sustained in Massachusetts some
 
 HISTORY OF THE LAW OF LABOR 21 
 
 years ago on the express ground that it was a 
 proper pohce regulation ; but probably really on 
 the theory that I have adverted to, that women 
 and children might constitutionally be protected 
 in making their own contracts. In Illinois, on 
 the other hand, within a few weeks, the law as to 
 women has been declared wholly unconstitutional 
 on the ground that the modern theory is that a 
 woman is a citizen, and that as such she has the 
 same right as a man has to make her own con- 
 tracts. This is certainly the logical modern view, 
 and it will be curious to see which view will gen- 
 erally prevail throughout the United States. 
 
 Unconstitutional in States where Women Vote. 
 
 It is at least very clear that in those States 
 which have adopted woman suffrage, there will be 
 no longer any constitutional justification for thus 
 artificially protecting woman from making such 
 contract as she deems most advantageous to her- 
 self. Clearly, to do so will be to put her at a 
 disadvantage in industrial competition with men, 
 which disadvantage, however slight in effect, will 
 afford a i)retext for retaining her present low rate 
 of wages, or perhaps for insisting on making it 
 lower still. Therefore, in woman -suffrage States, 
 any limitation thus imposed on the hours of labor 
 of women will have to be inijiosed also on men ; 
 and as our courts now stand, it is pretty clear that
 
 22 LABOR IN ITS RELATIONS TO LAW 
 
 they will permit this, if at all, only in the case of 
 labor employed by corporations ; and if this ex- 
 ception were generally made, it would put corpo- 
 rations at such a disadvantage that they would 
 probably turn themselves into private trusts for 
 the purpose of evading the law, and this could 
 probably be easily done. We may, therefore, ex- 
 pect a check by the courts to the recent move- 
 ment for statute regulation of labor hours. 
 
 As to Children. 
 
 The labor of children is also covered by this 
 statute, and further, it is common to provide that 
 children between the ages of twelve and fourteen 
 and eighteen shall not be employed in such a way 
 as to wholly prevent or interfere with their com- 
 mon-school education. Under the ages of eleven 
 or twelve they may not usually be employed at all 
 in factories, and in most of our States not at all 
 in mines. The present state of English statute 
 law is somewhat similar. A child between the 
 age of fourteen and eighteen is there termed a 
 " young person," and may be employed under 
 certain restrictions, while a child — meaning a 
 person under the age of fourteen — has to pass a 
 certain standard of education ; and under the age 
 of eleven no child may be employed in factories 
 at all. It will be noted that all these acts con- 
 cerning the labor of women and children com-
 
 HISTORY OF THE LAW OF LABOR 23 
 
 monly apply to factories and workshops, not al- 
 ways to domestic labor, even that of sweat-shops, 
 and not to simple domestic labor or agricultural 
 labor at all. In fact, it may be noted here that 
 agricultural labor is very generally unprotected by 
 law in any respect whatever, just as its output is 
 not protected by the tariff. 
 
 Special Occupations. 
 
 There are a few statutes in this country spe- 
 cially regulating hours of labor in certain occu- 
 pations, such as railroads, street railways, and sta- 
 tionary engines; but these are perhaps imposed 
 as much for the protection of the public as for 
 that of the laborer, and the hours are usually long, 
 being commonly twelve hours a day upon rail- 
 roads, and limiting the length of continuous runs 
 at an even greater period of time, provided a 
 night's rest is given between. For the .safety of 
 others, special restrictions are also imposed on the 
 employment of children in certain employments, 
 such as running elevators, or cleaning machinery, 
 and children are very generally prohibited, in the 
 interests of their own morals, from being employed 
 in dramatic exhibitions, etc., under a certain age. 
 
 Legislation for Women. 
 
 Of special labor legislation for the protection of 
 women, other than that concerning hours of labor.
 
 24 LABOR IN ITS RELATIONS TO LAW 
 
 there is as yet very little. There is an almost 
 universal statute that women in mills, offices, and 
 shops shall be provided with seats. In California 
 and Louisiana the employment of women was for- 
 bidden in houses where liquor was sold at retail ; 
 but the California court, following the modern 
 view of women citizenship, declared this law un- 
 constitutional. Illinois, California, and Washing- 
 ton have adopted statutes, and the same thing is 
 in the California constitution, that no person shall 
 be precluded or debarred from any occupation, 
 profession, or employment, except military, on 
 account of sex ; but the Illinois statute adds that 
 this shall not be construed as requiring any female 
 to work on streets or to serve on juries. These 
 statutes, however, merely enunciate the general 
 law. So far as I know, there is no restriction 
 upon women in any State of the Union going into 
 any employment or avocation whatever, unless 
 the employment be in the nature of a political 
 office, such as justice of the peace or member of 
 the bar ; and in many States the bar has already 
 been thrown open to them. Upon this subject 
 there is much cry and little wool. 
 
 How far this universal employment of women 
 in factories and workshops away from their homes 
 is an unmixed good, may seriously be questioned. 
 It is probably quite too late to alter it in the case 
 of factories, at least until our economic condition
 
 HISTORY OF THE LAW OF LABOR 25 
 
 becomes so much imi)roved as to make it un- 
 necessary ; but in England there is a strong feel- 
 ing against it, as it tends to lower the wages of 
 the men and make it necessary for all women to 
 work. It is easy to see that in the case of mar- 
 ried women, for instance, if none of them workci, 
 none of them would have to ; but the moment 
 one goes to the factory, the other wives have to 
 do the same if their social condition is to remain 
 equal to that of their neighbors. In the case of 
 unmarried women, their competition is both more 
 necessary for some and less necessary for others. 
 Undoubtedly, unmarried women having no other 
 means of support should be allowed perfect liberty 
 of labor at any industry. But there is a large class 
 of unmarried women, like the daughters of opera- 
 tives, who have homes of their own, and simply 
 work for the sake of spending-money. It is this 
 class whose competition may be most dreaded by 
 others. Women, too, have hitherto manifested 
 much less ability in defending their rights, and 
 much less tendency to join hands with trade- 
 unions. In Connecticut, last year, a bill was actu- 
 ally introduced forbidding married women to 
 work in factories, and the English reports are full 
 of arguments against it, drawn from the inferior 
 condition of homes presided over l)y such women, 
 and the failing health of children. It can hardly 
 be that such a law as the Connecticut bill would
 
 26 LABOR IN ITS RELATIONS TO LAW 
 
 be wise, as it would obviously put a premium on 
 immorality by enabling a man and his mistress to 
 earn double as much as a man and his wife. But 
 the whole question of the effect upon the social or- 
 der of the unification of the functions of men and 
 women, economically, has not yet been seriously 
 considered, much less proved. 
 
 Times of Payment. 
 
 As to the times of payment, many of our 
 States have adopted laws requiring laborers to be 
 paid weekly or fortnightly, though this statute is 
 much more general in the case of corporations, 
 for the reason that it is of doubtful constitution- 
 ality as applied to private employers. Indeed, the 
 Supreme Courts of Missouri and Arkansas have 
 expressly so declared. The Supreme Court of 
 Massachusetts, on the other hand, has just in- 
 structed the Legislature that such a law would not 
 be unconstitutional in that State, even although 
 applied to private individuals. 
 
 Truck Acts. 
 
 In a still greater number of States there is a 
 law that labor can only be paid for in lawful 
 money, or at least in checks or orders redeemable 
 in lawful money, and not in truck or in orders 
 upon companies' stores, etc.; and in some States 
 it is made illegal for employers of labor to keep
 
 HISTORY OF THE LAW OF LABOR 27 
 
 Stores for the purpose of sup[)lying their em- 
 ployees, or at least to sell them goods at higher 
 rates than to the general public, or to re(iuire 
 them to trade at such stores. This Truck Act also 
 finds its precedent in an English statute. 
 
 Industrial Labor Specially Privileged. 
 
 It will already have been noticed that indus- 
 trial laborers as a class are specially protected by 
 our law, for there is no statute limiting the time 
 during which a farm-hand or servant is required 
 to work, and kw concerning mercantile employees 
 and shop-girls. We must look fairly at what has 
 been done, and must recognize that there is even 
 danger, from the tendency to which I adverted at 
 the beginning, that industrial laborers should 
 come in this country to regard themselves as a 
 class specially privileged. 
 
 Labor Debts Preferred. 
 
 And we now come to a body of statutes where 
 this is even more evident. Debts for labor ser- 
 vices are specially recognized and protected in 
 all the States of the Union. Laborers commonly 
 have a preferred claim upon the a.ssets of an 
 insolvent corporation, or even of an insolvent in- 
 dividual, or the insolvent estate of a person de- 
 ceased. By the statutes of some States the stock- 
 holders of corporations are individually liable for
 
 28 LABOR IN ITS RELATIONS TO LAW 
 
 all debts for labor done for the corporation of 
 which they hold stock, and there is, as you know, 
 a most elaborate body of laws giving mechanics 
 and laborers liens on the product of their work. 
 And, furthermore, this money due for wages or 
 paid for wages is specially protected to the la- 
 borer and his family in the laws of many States. 
 It cannot be attached or held back by suit 
 against the employer. Sometimes this is true, 
 as by the constitution of Texas, to any amount ; 
 but more usually the amount so protected to the 
 laborer or his family is limited to one or two 
 hundred dollars, or to wages owed for thirty, 
 sixty, and ninety days. And by the constitution 
 of Virginia, and the laws of Michigan, Kansas, 
 and Nebraska, no property, although exempt upon 
 legal proceedings for an ordinary debt, may be 
 held by its owner as against a claim for labor or 
 personal services. And in New York State no 
 property is exempt from execution upon judg- 
 ments obtained by any female employee or ser- 
 vant, nor court fees required or stay of execu- 
 tion granted. And the same principle has been 
 adopted in Michigan, Iowa, and Virginia. 
 
 A few new State constitutions have expressed, 
 in more or less glittering generalities, a special 
 claim also that labor has upon the law-making 
 body of the State. Thus, by the constitutions of 
 Pennsylvania, Texas, and Louisiana, the Legislature
 
 HISTORY UV rilL LAW OF LABOR 29 
 
 may not pass any local or .sjiecial law regulating 
 labor, trade, manufacturing, mining, or agriculture. 
 By the constitution of Wyoming, the rights of 
 labor shall have just protection through laws cal- 
 culated to secure to the laborer ])roper rewards 
 for his services, and to promote the industrial 
 welfare of the State. 
 
 Political Privileges of Laborers. 
 
 The political protection of the laborer is 
 beginning to be seen to. Thus, in Minnesota, 
 employers are forbidden to require as a condi- 
 tion to employment the surrender of any right 
 of citizenship, or, in Wyoming, to discharge 
 candidates because of their nomination for an of- 
 fice. In all the States the laws provide for giving 
 time to employees to vote. In New York the 
 employer may not use pay envelopes upon which 
 is written or printed any political argument, and 
 in all the States it is a criminal offence for a person 
 to endeavor to influence a laborer's vote by threats 
 of discharge or lower wages. Some of the States 
 prohibit the employment of aliens upon public 
 works, and refuse to enforce contracts made for 
 alien labor in foreign countries. On the other 
 hand, the Grand Army of the Reiniblic is being 
 made, in many States, a privileged class, being es- 
 pecially exempted from all civil-.service examina- 
 tions, or even from other tests of fitness ; as in the
 
 30 LABOR IN ITS RELATIONS TO LAW 
 
 State of Massachusetts, which has just passed the 
 worst existing law on this subject over the veto 
 of its governor. 
 
 Relief Funds. 
 
 Some of the States are beginning to prohibit 
 the institution by employers of charitable funds 
 or benevolent societies, of which tl.e employee is 
 obliged to become a member. The elaborate re- 
 lief system of the Chicago, Burlington & Quincy 
 Railroad, which has been in successful operation 
 for many years, and accumulated a relief fund 
 running, I think, to more than a million of dol- 
 lars, has almost been nullified by a court decision 
 to that effect. When we consider that the great 
 desire of English laborers is for insurance against 
 accident by the employer, it would seem as if 
 this position were rather extreme, although, even 
 in England, it is admitted that what the employee 
 wants is protection from injury, not compensa- 
 tion, for the reason that compensation, when fur- 
 nished, as it ultimately is, by funds of this sort, 
 and still more when furnished by outside insur- 
 ance companies, tends to make the employer 
 careless both in the choice of his workmen and 
 the maintenance of his machinery. In Tennes- 
 see there is a law aimed against company doc- 
 tors.
 
 HISTORY OF THE LAW OF LABOR 31 
 
 Prison Labor. 
 
 The tendency to prohil)it all prison labor, or, at 
 least, all prison labor which can possibly conie 
 into competition with outside labor, is familiar to 
 all of us. Mr. Ruskin, it may be remembered, 
 made a cardinal i)rinciple of his Utopia that all 
 di.sagreeable, heavy, and dangerous work should be 
 done by criminals, and we may think that this is 
 another instance where the zeal of the labor leader 
 has carried him too far. The Southern States 
 very generally permit jjrison labor in important 
 public works, on roads and canals. A condemned 
 criminal is the only modern instance of the indus- 
 trial slave, and remembering that the pyramids of 
 Egypt were built by such labor, it does not .seem 
 as if our sentimental altruism should carry us so 
 far as to object to the emijloymcnt of our crimi- 
 nals in healthy outside work, particularly such as, 
 however valuable to the State, will not probably 
 be built l)y private enterprise ; such work, for 
 instance, as the Cape Cod Sliip Canal. 
 
 Labor Exempted from Trust Laws. 
 
 But perhaps the most noteworthy instance of 
 the special privilege granted laborers is that of the 
 statute of Michigan passed in 1889 — a stringent 
 law against trusts, which specially excepts all con- 
 tracts and combinations relating to the services of 
 laborers or artisans who are formed into societies
 
 32 LABOR IN ITS RELATIONS TO LAW 
 
 or organizations for the benefit and protection of 
 their members. In other words, you may have a 
 trust in labor, or even, as it seems, in the product 
 of labor, though a necessary of life, provided only 
 it is formed by the laborer himself, even under a 
 co-operative charter, and not by the capitalist. 
 
 Factory Regulation in the United States. 
 
 Our factory legislation is not yet as full and 
 complete as that of England, though it may be 
 observed that, owing to our written constitutions, 
 our Legislatures are perhaps a degree more shy in 
 imposing regulations and restrictions upon indi- 
 vidual employers. We have, however, in the 
 North, laws for the general inspection and regula- 
 tion of factories against over-crowding, for pro- 
 viding good air, freeing mill-rooms from dust or 
 noxious vapors, requiring mechanical fans, fire- 
 escapes, ventilators, mechanical belt-shifters, com- 
 munication by bells and tubes between ordinary 
 rooms and machinery rooms, requiring doors to 
 open outward, elevator shafts to be fenced in, and 
 so on through an endless number. There is one 
 statute alone, in the State of Wa.shington, whicli 
 provides for the sobriety and capability of the op- 
 eratives employed. Mines and railroads are also a 
 subject of most elaborate regulation, and in the last 
 two years, I am happy to say, a much more neg- 
 lected matter has been taken up — that of sweatshops.
 
 HISTORY OF THE LAW OF LABOR 33 
 
 Sweatshops. 
 
 A sweatshop, in legal parlance, is a workroom 
 either in one of the ordinary domestic rooms of a 
 house or in a tenement not under the control of 
 the person furnishing the employment. Here, of 
 course, we strike again a constitutional objection, 
 " that an Englishman's house is his castle ; ' ' and a 
 New York law prohibiting, under certain condi- 
 tions, the manufacttn-e of cigars and confectionery 
 in tenements has been declared unconstitutional 
 by the Court of Appeals in that State. New 
 York, New Jersey, Massachusetts, and Illinois 
 have, however, passed statutes providing for the 
 regulation and inspection of tenements where in- 
 dustrial work is done, and I think we may say that 
 there is little doubt that such legislation will ulti- 
 mately be sustained under the doctrine of the 
 police jurisdiction of the legislature, though it is 
 possible that the New York statute went too far. 
 Intelligence offices are also beginning to be regu- 
 lated by statute, and e\en the amount of their 
 charges limited. Generally, throughout the coun- 
 try, the common law is changed by which employ- 
 ers were not made liable for accidents resulting 
 from the negligence of a fellow emi)loyee of the 
 person injured, .so that the distinct tendency is 
 toward making each employer the insurer of all 
 his workmen against any accident occurring on his 
 premises, or to a person injured about his work. 
 3
 
 34 LABOR IN ITS RELATIONS TO LAW 
 
 Knights of Labor, etc. 
 
 Finally we may say that there are general stat- 
 utes giving legal recognition to Knights of Labor, 
 Farmers' Alliance, mutual or provident associa- 
 tions, workingmen's aid societies, and labor or- 
 ganizations generally. In fact, the Legislatures 
 have gone as far as they can in inviting workmen 
 to incorporate themselves into legally recognized 
 trades-unions, and have given them full powers 
 and all reasonable privilege in so doing. The 
 great difficulty has been, however, to persuade the 
 workmen to take advantage of these laws. 
 
 Union Labor not to be Discharged. 
 
 Statutes are being rapidly passed which for- 
 bid employers from discharging employees for 
 joining labor-unions, or from requiring as a con- 
 dition of employment that they should not be 
 members of such unions, or even from voluntarily 
 awarding a preference in employment to non- 
 union men. I must say, however, that I have not 
 yet found any reported case where the constitu- 
 tionality at least of this later prohibition has been 
 fully argued and clearly maintained ; and in one 
 State — Missouri — it has just been denied, and the 
 law nullified. It is pretty clear that until we get 
 into actual State socialism, the individual employer 
 must be left free to employ whom he will. In 
 other words, as long as the principle of labor em-
 
 HISTORY OF THE LAW OF LABOR 35 
 
 ployment still remains a voluntary contract, it must 
 be a contract and must be voluntary. Union 
 labels, however, may be protected, and all other 
 encouragement afforded to union men. There 
 were cases, some years ago, where courts refused 
 to protect the label of a trade-imion on union- 
 made goods, for the reason that, being employees, 
 not manufacturers, they had no property right in 
 the same ; and in consequence of these very cases 
 the States have been rapidly passing statutes al- 
 lowing union labels to be registered much as a 
 patent or trade-mark is registered, and granting 
 the same remedies for the use of the same by un- 
 authorized parties, by injunction or suit for dam- 
 ages. Such laws now exist in more than half the 
 States. 
 
 Strikes and Blacklists. 
 
 Finally, there is quite a ma.ss of new legislation 
 aimed generally either in the direction of legaliz- 
 ing strikes and trade combinations or in that of 
 prohibiting combinations by employers, black- 
 lists, and lockouts. These, however, will be best 
 considered in a lecture specially devoted to them. 
 
 Arbitration— Collective Bargaining. 
 
 And there are, as you know, many important 
 steps already made in our legislation in the direc- 
 tion of providing tribunals for conciliation and
 
 36 LABOR IN ITS RELATIONS TO LAW 
 
 arbitration ; for realizing, in other words, that 
 principle which I spoke of in the beginning as 
 enunciated by the latest labor agitations in Eng- 
 land, that the relation of employer and employee 
 should cease to be that of individual and contract, 
 but rather of the nature, if not of trade-partnership, 
 at least of " collective bargaining" on both sides 
 — a principle which will r.ccessarily bring in an 
 entirely new body of legal remedies for actions 
 which contravene this modern notion of the soli- 
 darity of labor interests. 
 
 I think it will be admitted that our American 
 democracies have already not shown themselves 
 deaf to the demands and complaints of the indus- 
 trial laborer. Certainly they have gone very far 
 in the direction of removing abuse and of limiting 
 and regulating the employer in the management 
 of his business. All this may, however, be called 
 negative achievement. I wish it were not possi- 
 ble, as it is, to close this summary view of the 
 present state of things by stating in so few words 
 the sum of positive achievement in the direction 
 either of improving the character and efficiency of 
 the laborer or of furnishing new fields for the 
 unemjjloyed ; but when we say that our laws of 
 api)renticeship have become a dead letter, and 
 that provision is made in some half-dozen States 
 for industrial training or the teaching of manual 
 arts in the public schools, and, in New York, for
 
 HISTORY OF THE LAW OF LABOR 37 
 
 free lectures to working people on actual science 
 in the evenings, we have said about all I have 
 gleaned from my reading the statutes. 
 
 The Massachusetts Commission-on-Unemployed Bill 
 for Labor Colony. 
 
 The Massachusetts Commission on the Unem- 
 ployed presented in their report this year an elabor- 
 ate bill for the establishment of a labor test to dis- 
 criminate ordinary vagrants from persons out of 
 work, and for the establishment of a labor colony, to 
 which the latter might be committed voluntarily or 
 by order of court, if the occasion justified. The 
 notion of the labor colony was of an institution not 
 punitory or penal so that commitment to it would 
 be attended with any disgrace, but which, having 
 a large tract of unimproved land, should develop 
 it agriculturally and industrially, and in so doing 
 give any men out of work, who might otherwise be 
 in danger of becoming tramps or criminals, such 
 training in ordinary farming and the common in- 
 dustrial trades as would enable them upon their 
 discharge to seek skilled work with good prob- 
 ability of obtaining it. This bill will not be acted 
 upon by the Legislature until next year, if it will at 
 all. It will be interesting to see whether it meets 
 with opposition or help from the societies of or- 
 ganized labor.
 
 38 LABOR IN ITS RELATIONS TO LAW 
 
 Tendency of Legislation and Courts Favorable to Labor. 
 
 It has been necessary to cover a large field in 
 this lecture to give even an outline sketch of the 
 history of English labor questions, as treated by 
 Legislatures and the law up to date. We are now 
 prepared to take up the more concrete subjects 
 which are pressing for immediate solution, but I 
 think we must admit after making this review 
 that the industrial laborer to-day has succeeded in 
 getting the ear of the public and of the Legisla- 
 tures. He has a common and regrettable notion 
 that the courts are against him. It is true that 
 timid judges have sometimes flown to the Consti- 
 tution, much as a child runs to its mother, and 
 that angry judges have invoked the aid of armed 
 deputies in enforcing equity processes, which other- 
 wise would have been of no effect ; but in many 
 cases the occasion justified it, and, at all events, 
 the Legislatures have not been slow to help the 
 cause of labor. While asking the earnest attention 
 and sympathy of all thoughtful men, the industrial 
 laborer must not be led to believe that he belongs 
 to a privileged class, and certainly the statutes 
 recently passed have gone far to justify such an 
 impression in his mind. No other American 
 citizen has his contracts regulated by the State, 
 his times of payment fixed, his liberty to break 
 them secured by law, his property freed from judg- 
 ment, while upon the property of his debtors he
 
 HISTORY OF THE LAW OF LABOR 39 
 
 is given a prior lien. In no other occupation 
 than that of personal labor is a man left free to 
 perform his own contracts or not, while the other 
 side is held to them. No other class have their 
 prosperity made specially the subject of legislative 
 consideration, and their political power carefully 
 guarded by express statute, and every opportunity 
 given for its use. When he has a just grievance 
 the public bears good-naturedly the inconvenience 
 caused even by the most sudden and arbitrary 
 action on his part. Let us recognize then that 
 however evil were the conditions in the past, the 
 law has done much for the laboring man to-day 
 and is ready, backed by pul)lic sentiment, to do 
 more, provided only that what he asks is limited 
 to that which is reasonable, possible, and not in- 
 consistent with our inherited liberties.
 
 II 
 
 THE EMPLOYMENT CONTRACT 
 
 Two Public Questions Concerning Labor Prominent 
 To-day. 
 
 Our last lecture attempted to give a bird's-eye 
 view of the general subject of labor in its relation 
 to law, sufficient to enable ik now to pick out 
 what are the important points, the key-positions, 
 in the country we have surveyed ; and I may say 
 at once that they appear to be two in number: 
 First, the general question of the labor contract, 
 and how far the law shall restrain, modify, or 
 amend it ; second, the question of the acts and 
 remedies permissible both to employers and em- 
 ployees in their effort to better their position rela- 
 tive to each other, and how far the State shall 
 restrain, sanction, or enforce these. 
 
 The Labor Contract, its History. 
 
 I think to-day it will be quite enough if we 
 endeavor to consider the labor contract. Now, 
 first I wish to call your attention to the fact that 
 it is now generally admitted by radicals as well as
 
 THE EMPLOYMENT CONTRACT 41 
 
 conservatives, that the great story of the historical 
 development of the labor question has been that 
 from artificial control to freedom of contract. I 
 do not wish to prejudice you Vith any notion that 
 this freedom of contract is now, or in the future, 
 necessarily, a thing to be preserved ; but it is 
 necessary for us to note this great historical fact. 
 
 State Control Asked. 
 
 Many labor leaders are again asking for an effec- 
 tual control of the labor contract or relation, and 
 this not only as it was controlled in old times in 
 the interest of the laborer, by the guilds, that is, 
 not now by trades-unions or combined action 
 alone, but by the direct legislation of the State. 
 That is, they wish to substitute the will of a pre- 
 sumable majority, or at least of a majority of 
 those i)ersons who for any year happen to be 
 members of the State legislature, for the individ- 
 ual judgment of the citizen. They wish to pro- 
 hibit the right of the employee to make his own 
 contract with the employer, and this not alone 
 separately, but as applied to what we have called 
 collective bargaining; that is, even to the con- 
 tracts of all employers in a given trade with all 
 the employees in such trade embodied in a labor 
 union. I repeat that I do not now wish to con- 
 sider whether this is wise or not, whether it is 
 beneficial to the employee or not, whether on the
 
 42 LABOR IN ITS RELATIONS TO LAW 
 
 whole it is for the greatest good of the greatest 
 number or not ; but I do wish strongly to point 
 out that this is a distinct change of sides and a 
 surrender of the ground for which labor had been 
 fighting from the earliest historic times down to 
 a very few years ago. On this fact every one is 
 agreed. It is as clearly set forth in the compila- 
 tion of labor history made under the auspices of 
 Mr. Powderly as it is in Adam Smith, as clearly in 
 the history of Brentano of Leipsic — who represents 
 the later German school, which objects to Adam 
 Smith and the laissez-faire idea — as in Thorold 
 Rogers. Brentano is most emphatic on this point, 
 and his phrase for it is, " the growth of labor from 
 the system of authority to the system of contract.''' 
 Brentano himself is for the yet newer view, 
 which he terms ' ' association ; ' ' but the history 
 of his own subject, as told by himself up to the 
 date of his book, is simply the history of the suc- 
 cessful effort of labor to be relieved of compulsion 
 by law or by guild, and its arrival at the stage 
 known to us in the nineteenth century, where — 
 to quote Brentano' s words — "labor is regarded as 
 a commodity to be sold, and the greatest possible 
 liberty, both of individual bargaining and of 
 combination, is given to the laborer in selling it." 
 On August 4, 1789, as Brentano tells us, the 
 abolition of the old guild control in France was 
 welcomed by laborers with the wildest rejoicings
 
 THE EMPLOYMENT CONTRACT 43 
 
 of the French Revohition, and " the glorious night 
 of this 4th of August, under the shouts of ap- 
 proval of the nation, made good the demands of 
 the laboring classes for the freedom of individuals 
 as against absolutism, and for the abstinence from 
 every positive encroachment upon the economic 
 life of a positive economic legislation." 
 
 Turning again to England, the triumph is there 
 further accentuated as the crowning principle of 
 the Anglo-Saxoiv Constitution. I say Anglo- 
 Saxon, because as both Blackstone and Benjamin 
 Franklin have pointed out, it was this Constitution 
 that we brought with us into this country as our 
 most priceless heritage ; and Bushrod Washing- 
 ton, one of our first great judges, as.serted, that 
 this, with other unwritten constitutional princi- 
 ples, was so deep and so sacred as not to be preju- 
 diced even by its omission from the written 
 constitutions which our States and our national 
 government had at that time adopted. Therefore, 
 in England, and still more in America — for here, 
 by the framework of our government, our legis- 
 latures do not have the power of the British par- 
 liament — this is not only a hard-won principle of 
 the relations of laborer to employer, but a funda- 
 mental principle of the relation of the freeman to 
 the government. You will see, therefore, that 
 wliile we still say nothing as to the expediency of 
 starting again on the old Elizabethan method of
 
 44 LABOR IN ITS RELATIONS TO LAW 
 
 regulating the labor contract by statute — only now 
 avowedly in the interest of labor, while then it 
 was virtually in the interest of capital — we do 
 say a great deal upon the constitutionality and the 
 novelty in our country and in our race of starting 
 on this course. 
 
 Meaning of the Constitution. 
 
 Now I am very well aware of the savor of dry- 
 ness and musty precedent which in every mind 
 not a lawyer's hangs about the phrase " constitu- 
 tionality or unconstitutionality." It is within a 
 very few months that a friend with whom I was 
 engaged in drafting some legislation in the inter- 
 est of labor, a learned professor and a publicist as 
 well, used the phrase, " but bother the Constitu- 
 tion ! " more than half-a-dozen times in connec- 
 tion with one brief statute that we were trying 
 to draw. He said " every time you try to do 
 something for labor or humanity you run up 
 against the Constitution." Nevertheless, I would 
 beg all people who are considering this question 
 in the interest of labor ; in the interest of human- 
 ity; at least, in the interest of a free humanity, to 
 get a full understanding of what this dry phrase, 
 "unconstitutional," may really mean. There is 
 a notion lately prevalent, particularly among cer- 
 tain newspapers and a minor order of politicians, 
 that the will of the majority is in all things para-
 
 THE EMPLOYMENT CONTRACT 45 
 
 mount ; that the object of a free government is 
 simply to ascertain, register, and enforce the will 
 of any majority at any time. Now, we must most 
 earnestly deny this; deny it to the length of say- 
 ing that such a government, far from being a free 
 government, would only differ from a mob gov- 
 ernment in a certain jjossible avoidance of blows 
 and bloodshed ; and we would go so far as to as- 
 sert the paradoxical opposite, namely, that the 
 object of all free government, certainly of all con- 
 stitutional free government, is not to enforce the 
 will of the majority, but to protect the liber- 
 ties of the minority ; the majority, except in a 
 tyranny, enforce their will fost enough under any 
 government — with their fists without a govern- 
 ment. Such is the object of a constitution ; and 
 that is what the phrase "constitutional" may 
 mean. There is one greater interest than even 
 labor or property ; a higher idea than daily meat 
 and bread, and that is, freedom ; and the seem- 
 ingly dry phrase " unconstitutional " can in most 
 cases be translated into a synonym more easy of 
 comprehension to all Americans, and that is, 
 " destructive of liberty." 
 
 " We live in a world of ideas," and if through 
 the Hebrew race came a greater idea still, no one 
 will contest that through our race has come the 
 idea, liberty. Since the time of King John we 
 have been fighting for this, and we have got it j
 
 46 LABOR IN ITS RELATIONS TO LAW 
 
 and this liberty includes, even by the dry intend- 
 ment of law, the right of a man, first, to be free 
 in his person ; second, the right to be free in his 
 thoughts ; and third, the right to be free in his 
 actions. I have stated this somewhat in the order 
 of its historical accomplishment. As we all know, 
 first an Englishman's body became free ; then 
 came religious liberty, and last of all, and pecu- 
 liarly through the labor question, his freedom to 
 work or not to work ; his freedom to work for 
 whom he would, and when and at what, and for 
 what pay he would. 
 
 Personal Liberty Includes Property. 
 
 But one thing remains to be added to this be- 
 . fore we can come to a concrete treatment of our 
 subject, and that is, that it very soon and very 
 early became a part of a man's personal liberty 
 that he could acquire, possess, and freely enjoy 
 material possessions. Now, again, I am not tak- 
 ing "here an ethical ground in defence. For the 
 moment, I am not defending the question of pri- 
 vate property at all ; but I am merely pointing 
 out that as a man's freedom of person only would 
 be like that of the beast of the field, without a 
 roof to creep to at night and protect his wife and 
 children, and a store of food and fuel to feed and 
 warm them with until he could acquire the next 
 supply, this institution of property was at once the
 
 THE EMPLOYMENT CONTRACT 47 
 
 necessary instrument, as it were, of personal free- 
 dom itself. It is perfectly possible, of course, that 
 these things can be provided by the State ; but 
 property — appropriation by somebody to each per- 
 son of certain commodities — is a necessary part of 
 the liberty of a human being. The maxim, that 
 an " Englishman's house is his castle," is but one 
 expression of this truth. Now we are still living 
 under the institution of private, as distinguished 
 from common, property, and private property is 
 expressly made a corner-stone of every one of our 
 State constitutions and of that of the National 
 government itself. And, in theory, all constitu- 
 tional liberties are equally important, for the rea- 
 son that if you can destroy one, even though by a 
 law, you can destroy them all. This is why I say 
 that the object of a constitutional government is 
 to protect minorities; that is, to protect a minor- 
 ity, or even a single individual, in the enjoyment 
 of any con.stitutional thing it was specified by his 
 forefathers he should have when they entered into 
 the compact which makes him a member of the 
 government. Thus, while democratic government 
 has, as one function, the registering of the will of 
 the majority, constitutional government has as 
 its special function the seeing to it that the major- 
 ity does not transcend certain cardinal principles 
 of freedom or policy which were specially ex- 
 cepted out of its powers by the will of the jxjople
 
 48 LABOR IN ITS RELATIONS TO LAW 
 
 itself. Should the will of the people be really 
 and permanently changed by such a decided ma- 
 jority as to guarantee that the change will be per- 
 manent and not a mere chance vote in a moment 
 of excitement, the Constitution itself provides a 
 method for registering such change. Therefore 
 we approach this subject with the most distinct 
 statement that the freedom of the individual, and 
 freedom in dealing with his po.ssessions, of which 
 his own right to labor is as much one as his horse 
 or his cow, is our greatest birthright, and one 
 which has received the sanction of what is called 
 the Constitution. 
 
 Now, in considering these labor questions, par- 
 ticularly in their relation to this principle, there 
 are always two questions to be determined. First, 
 is it expedient to do this thing by a law ? sec- 
 ond, is it constitutional ? If both, there can be 
 no question ; but if expedient, and not constitu- 
 tional, the clear answer we should give is that it 
 should then be brought about by voluntary ac- 
 tion, by united demand, by public sentiment, so 
 that we may get the benefit of the change pro- 
 posed without paying for it the dear price of los- 
 ing, once and for all, all our constitutional liber- 
 ties. I wish to make it clear that I believe our 
 phrase, "constitutional," to embody one of the 
 very highest ethical principles ; certainly so in 
 relation to our people and our race. I deny most
 
 THE EMPLOYMENT CONTRACT 49 
 
 strenuously that it is a dry phrase or a legal fig- 
 ment. I say that whenever the word " constitu- 
 tional " can fairly come in, we are treating with 
 the deepest principles and the most ethical mo- 
 tives. And one word more before we go into 
 practical affairs. The difficulty in this question 
 is based almost entirely on another and a peculiar 
 l)oint. There is, of course, the general difficulty 
 that a concise expression of great human import 
 necessarily cannot define its application ; when, 
 for instance, we say that a man's property cannot 
 be taken away without due process of law, there 
 is at once the question whether the proi)erty of a 
 man in his own labor comes under the general 
 expression of property. 
 
 Written or Unwritten Constitution. 
 
 But I mean fiirther than this. The constitution 
 of England is avowedly unwritten, and if Webster 
 and Judge Wa.shington — who rendered almost the 
 first decision on the subject — were right, we have 
 not lost it by adopting our written constitutions. 
 If, on the other hand, the view is correct that 
 more recently has been expressed by the Supreme 
 Court of Massachusetts, that we have no un- 
 written or implied constitution, but that each 
 man is protected and restrained only (i) by 
 the exact words of his own State constitution, 
 and (2) by the express i)rovisions of the United 
 4
 
 50 LABOR IN ITS RELATIONS TO LAW 
 
 States Constitution, the uncertainty is still not 
 quite removed, because there can hardly be a 
 doubt that the concise expressions and general 
 phrases employed in our brief State and National 
 Constitution were written with conscious reference 
 to all that body of unwritten constitutional law 
 which they had brought with them from England 
 and under which our citizens then lived ; and, 
 therefore, the expressed restrictions and guaran- 
 tees of our written Constitution, wherever the 
 phrase fairly permits it or indicates it, are to be 
 extended to include by implication the whole 
 body of constitutional law which then fell natu- 
 rally into the same subject matter. This is the 
 sole cause of the apparent diversity of our courts 
 on constitutional mattei's. There is never any 
 doubt when a law or an act in question falls 
 under the express written phrases ; but when 
 the express written phrase is a general one, the 
 question is w^hether it includes the particular. 
 Whether the right to property includes property 
 in a man's own labor is precisely an example of 
 what I mean ; and examples of cases which, 
 though clearly constitutional principles, are not 
 embodied in our written Constitution, are not hard 
 to find. Parliament in England is said to be 
 supreme, but there is a very early case, w^hich has 
 been referred to in a thousand cases since, to the 
 effect that even Parliament cannot make a man a
 
 THE EMPLOYMENT CONTRACT 51 
 
 judge in his own case ; so even Parliament cannot 
 arbitrarily take the property of one man and give 
 it to another. Now, I will say frankly that 1 have 
 very great doubt whether the omission of our 
 State or National Constitution to express such 
 principles as this has taken them out of our birth- 
 right as Anglo-American freemen. 
 
 So in the case of monopolies. In the leading 
 case on this question, that of the Norwich Gas 
 Light Company, arising in Connecticut in the year 
 1856, the court expressly says that " although we 
 have no direct constitutional provision against a 
 monopoly, yet the whole theory of a free govern- 
 ment is opposed to such grants, and it does not 
 require even the aid which may be derived from the 
 Bill of Rights, providing that no man or set of men 
 are entitled to exclusive public emoluments or priv- 
 ileges from the community, to render them void." 
 
 Present Entire Freedom of Labor Contract. 
 
 Coming now to a practical consideration of the 
 labor contract, I hope I have shown that we 
 start upon a simple and intelligible proposition 
 that to-day the labor contract is perfectly free ; 
 either side may make whatever contract he can 
 get the other side to sign. Not only this, but 
 either side may freely combine to demand any form 
 of contract from the other side, as mere com- 
 binations alone are now made perfectly legal.
 
 52 LABOR IN ITS RELATIONS TO LAW 
 
 This is the condition of affairs we now are in, and 
 this is the condition of affairs for which laborers 
 have always for five hundred years contended for. 
 It has been so fully and completely realized that 
 it hardly appears in any of our laws or constitu- 
 tions ; for, subject only to certain laws against 
 combinations, against collective bargaining, which 
 will be peculiarly the subject of my next lecture, 
 this state of affairs had practically come about be- 
 fore the adoption of our written constitutions. 
 The men who formed our constitutions thought 
 it no more necessary to provide that a man might 
 make a legal contract about his own labor than 
 they did about his property, and no more neces- 
 sary to say it about both than they did to say, in 
 terms, that there should be no taxation without 
 representation. Only in view of late attempts to 
 interfere with this contract have certain States 
 very recently affirmed the principle. Thus, the 
 statute of Louisiana of 1890 provides that the 
 violation of labor contracts and wilful interfer- 
 ence with such contracts by persons not parties 
 thereto is forbidden. You will note that this 
 important statute falls into two branches — one 
 which asserts the legality of labor contracts spe- 
 cially and forbids their violation, and one which 
 forbids wilful interference with such contracts by 
 persons not parties to them ; that is, intimidation. 
 The first branch alone concerns the contract itself.
 
 THE EMPLOYMENT CONTRACT 53 
 
 The California code says that the contract of em- 
 ployment is a contract by which one, who is 
 called the employer, engages another, who is called 
 the employee, to do something for the benefit of 
 another or a third person. You will observe that 
 this is mere definition. The statute clearly does 
 not consider it necessary to say in terms that such 
 a contract is legal. Of course it is. Now, this 
 fact that only one State — and that by a most re- 
 cent statute — says anything about the general 
 question of the labor contract, is the very lact 
 which shows how completely such a contract had 
 become, not only legal, but guaranteed by the 
 Constitution. It did not re(piire the support of 
 any statute. The Louisiana statute was doubt- 
 less passed by the Legislature in a moment of ap- 
 prehension about first principles, caused by the 
 general strike and disorder of the city of New 
 Orleans in 1889. The California statute is not so 
 significant, because it is merely a part of Mr. 
 David Dudley Field's code, and Mr. Field put 
 everything in his code, almost to the alphabet and 
 the tables of arithmetic. Our law-making, there- 
 fore, bears out my statement that the right of 
 contract in labor matters is recognized in this 
 country as needing not the sanction of any stat- 
 ute. If it be not involved in our written con- 
 stitutions, it is, at least, a part of that unwritten 
 constitutional law of which I just spoke. From
 
 54 LABOR IN ITS RELATIONS TO LAW 
 
 the point of view of history, of law, and of ethics, 
 this general principle is clearly right. The con- 
 tract of labor should be free to both sides. 
 
 Thus, in People v. Gillson (109 N. Y., 339), the 
 court says : The term ' ' liberty ' ' as used in the 
 Constitution is not dwarfed into mere freedom 
 from physical restraint of the person of the citizen, 
 as by incarceration, but is deemed to embrace the 
 right of man to be free in the enjoyment of the 
 faculties with which he has been endowed by his 
 Creator, subject only to such restraints as are 
 necessary for the common welfare. Liberty, in 
 its broad sense, as understood in this country, 
 means the right not only of freedom from servi- 
 tude, imprisonment, or restraint, but the right of 
 one to use his faculties in all lawful ways ; to live 
 and work where he will ; to earn his livelihood in 
 any lawful calling, and to pursue any lawful trade 
 or avocation. 
 
 In Braceville Coal Company v. The People 
 (147 111., 71), the court says : 
 
 " Property, in its broader sense, is not the 
 physical thing which may be the subject of owner- 
 ship, but is the right of dominion, possession, and 
 power of disposition which may be acquired over 
 it ; and the right of property, preserved by the 
 Constitution, is the right not only to possess and 
 enjoy it, but also to acquire it in any lawful mode, 
 or by following any lawful industrial pursuit which
 
 THE EMPLOYMENT CONTRACT 55 
 
 the citizen, in the exercise of the Hberty guaran- 
 teed, may choose to acloi)t. Labor is the pri- 
 mary foundation of all wealth. The property 
 which each one has in his own labor is the com- 
 mon heritage, and, as an incident to the right to 
 acquire other property, the liberty to enter into 
 contracts by which labor may be employed in 
 such way as the laborer shall deem most beneficial, 
 and of others to employ such labor, is necessarily 
 included in the constitutional guaranty." In the 
 Frorer case we said : " The privilege of contract- 
 ing is both a liberty and a property right, and if 
 A is denied the right to contract and acquire 
 property in the manner which he has hitherto en- 
 joyed under the law, and which B, C, and D are 
 still allowed by the law to enjoy, it is clear that he 
 is deprived of both liberty and proj^erty to the ex- 
 tent that he is thus denied the right to contract, 
 and quoted with ap[)roval : ' The man or the 
 class forbidden the acquisition or enjoyment of 
 property in the manner permitted the community 
 at large, would be deprived of liberty in particu- 
 lars of primary importance to his or their pursuit 
 of happiness.' " {Coohy's Const. Lii/i., 393.) 
 
 Intimidation. 
 
 As a direct corollary to this, the other branch of 
 the Louisiana statute should also go without saying, 
 as the law is thus in all our States. The contract
 
 56 LABOR IN ITS RELATIONS TO LAW 
 
 being free to the parties, no third person should 
 interfere with them, at least by any other influence 
 than persuasion. This, I think, we will also take 
 as axiomatic. But, unhappily, laborers, often 
 uninstructed, and suffering perhaps under past 
 oppression or present unfair treatment, have so 
 often broken this principle, that here we find that 
 States have found it necessary to legislate ; and so 
 every New England State, New York, Indiana, 
 Illinois, Wisconsin, Minnesota, Missouri, Oregon, 
 the Dakotas, Montana, Georgia, Alabama, and 
 Texas, have thought proper to legislate that it 
 shall be a criminal offence for any person to pre- 
 vent, or to seek to prevent, by means of threats, 
 intimidation, or force, alone or in combination 
 with others, any person from entering into or con- 
 tinuing in the employment of any other person. 
 Illinois, Oregon, the Dakotas, Montana, and 
 Georgia have also extended this principle to the 
 employer ; that is, it is criminal to intimidate or 
 coerce any employer not to employ any other 
 person whom he might otherwise be willing to 
 employ. The other States have probably not 
 covered the point because they did not deem the 
 employer likely to be intimated in so doing. 
 
 " Molesting." 
 
 I will here ])ause to note that in England the 
 same legislation has run its course, and the
 
 THE EMPLOYMENT CONTRACT 57 
 
 phrase in their present statute now is, '• anyone 
 who uses violence to, or intimidates, such per- 
 son ; " and it is very significant tliat the majority 
 of the Labor Commission of 1893 recommend an 
 amendment to this wording, which is found in a 
 statute of 1875, to read to follows : " any person 
 who uses or threatens to use violence to such otlier 
 person." You see that there is a most imi)ortant 
 distinction here. The word "intimidate" may 
 well cover moral intimidation. The labor leaders 
 are now contending to be permitted this, and to 
 limit the prohibition to violence or the threat of 
 violence; that is, physical violence alone. I 
 presume, however, this physical violence would 
 apply to destruction of property as well as injury 
 to person. This is a very significant change, be- 
 cause it has ari.sen out of the great strikes in Eng- 
 land and the law cases to which they gave rise. I 
 shall have to go into this matter in some detail 
 when we speak of boycotts, merely noting here that 
 one of our leading decisions in the State of New 
 York recognizes that there may be a moral intimi- 
 dation — ridicule, for instance, or disorderly shout- 
 ing, or objectionable epithets — which will be crim- 
 inal, even when practised by one person alone. 
 In a boycott, which is necessarily the act of more 
 than one person, the law is much stricter. 
 
 New York, Minnesota, Georgia, and Montana 
 have been a shade more specific, and exprcs.sed
 
 58 LABOR IN ITS RELATIONS TO LAW 
 
 that this intimidation shall not be either by in- 
 terfering with tools or property or the use thereof. 
 
 But we have not yet got to the end of this in- 
 teresting legislation. In Connecticut, New York, 
 and Montana the prohibition of the statute ex- 
 tends to the preventing, by threats or force, any 
 person from doing or not doing any act which 
 such person has a legal right to do. Here, you 
 will see, you have the broad human principle laid 
 down, that I have a right as an individual to do 
 an act not otherwise unlawful, and any other per- 
 son shall be regarded as a criminal who attempts 
 to prevent me. It sounds almost like a passage 
 from Herbert Spencer ; but who, after this, can 
 say there are no ethics in the law world ? 
 
 Oregon and North Dakota, following the last 
 English statute, specify more particularly against 
 the compelling another " to alter his mode of 
 carrying on business, or to limit or increase 
 the number of persons employed by him, or 
 their rate of wages or term of service." Mich- 
 igan has a similar statute, and, finally, the brand- 
 new constitution of North Dakota embodies this 
 corner-stone as follows: "Every citizen of this 
 State shall be free to obtain employment wher- 
 ever possible, and every person maliciously inter- 
 fering or hindering in any way any citizen from 
 obtaining or enjoying employment from any oth- 
 er person, shall be deemed guilty of a misde-
 
 THE EMPLOYMENT CONTRACT 59 
 
 nieanor. " There you have the projwrty right in 
 labor laid down in an express constitution. 
 
 No Limitation of Wages. 
 
 So much for the general principle of the con- 
 tract and its safeguards. Now for particulars and 
 restrictions. In the first place as to wages : No 
 A.nglo-Saxon community, so far as I can find, in 
 modern times, has prescribed or restricted the 
 rate of wages paid. And by a decision of the 
 Sui)reme Court of Massachusetts the ancient law 
 regulating wages and apprentices is expressly de- 
 clared to be no part of our common law. The 
 constitution of Louisiana expressly .says that the 
 Legislature shall never fix the rate of wages. 
 
 Perhaps the nearest effort to regulating wages 
 was that law of the State of Massachusetts, piissed 
 in 1892, wliich jjrohiliited tlie deduction of wages 
 of weavers when any special jnece of work was 
 imi)erfect, even to the point of worthlessness, and 
 for the employer to impose a fine therefor. This 
 being an attempt to make a man pay for what he 
 had not got, the Supreme Court of Massachusetts 
 itself (which perhaps goes as far as any court 
 of the Union to-day in sustaining new laws, and 
 most narrowly interprets old constitutional prin- 
 ciples) declared this law unconstitutional. As a 
 consequence of this, tlie next Legislature passed a 
 law contenting themselves with ordering that
 
 6o LABOR IN ITS RELATIONS TO LAW 
 
 where a deduction was made for imperfect work, 
 the imperfection should be pointed out to the 
 workmen at the time ; which is certainly a reason- 
 able provision, so that no one has thought worth 
 while to question it. 
 
 There is one other statute somewhat similar to 
 this, that in Ohio, passed in the same year, which 
 prohibits any reduction or retaining of wages for 
 materials, tools, or machinery destroyed or dam- 
 aged. It may not, perhaps, be clear to others 
 than lawyers why I think that this statute is per- 
 fectly valid and the Massachusetts one not. But 
 the reason is, that the Massachusetts statute defi- 
 nitely took away a property right, while this one 
 of Ohio merely provides that a separate and inde- 
 pendent claim for damage to property cannot 1 e 
 fixed by one party to the contract, and set off 
 against a claim of the other party of a wholly dif- 
 ferent nature, that is, a claim for or against a 
 contract claim for wages. 
 
 Anti-Truck Acts. 
 
 There have been, however, many statutes copy- 
 ing the precedent of the English Truck Act, passed 
 about fifty years ago, requiring employees to be 
 paid only in lawful money, or at least in checks 
 which were expressly redeemable in lawful money. 
 You are all aware how this act was passed, that it 
 was levelled at the abuse which existed in keep-
 
 THE EMPLOYMENT CONTRACT 6i 
 
 ing company stores and forcing employees both 
 to buy their own goods at possibly exorbitant 
 prices of the employer and to remain in his debt 
 permanently, so that they were practically under 
 his control. Now, this is a very interesting ques- 
 tion to debate on constitutional grounds, for it is 
 surely a very good example of a law that we all 
 believe in. It is clearly both wise and expedient, 
 and one which removes great abuses we all know 
 to have existed. Nevertheless I must point out 
 that the courts of Pennsylvania and West Virginia, 
 in most vigorous opinions, since approved in many 
 of the Western States, have declared this law un- 
 constitutional on the ground that a full-grown 
 American citizen has a right voluntarily to make 
 a contract to accept groceries instead of money if 
 he chooses. The West Virginia judge thought 
 that the right to contract in respect of property, 
 including contracts for labor, was property pro- 
 tected by the Constitution ; while the decision in 
 Missouri went more particularly on the ground 
 that this statute, which there applied only to min- 
 ing laborers, was unconstitutional under that pro- 
 vision of the Missouri constitution which forbids 
 class legislation. There have been recent deci- 
 sions in England, where the judges from the 
 bencli have stated that there is an unwritten prin- 
 ciple, that an English citizen was free to make any 
 contract, neither criminal nor immoral, and the
 
 62 LABOR IN ITS RELATIONS TO LAW 
 
 courts would enforce it. Now, both these prin- 
 ciples — that of freedom of contract and that deny- 
 ing class legislation or legislation applying to 
 particular persons only — are only limited, but they 
 are limited, in our country, by one other doctrine 
 which may be regarded as an unwritten constitu- 
 tional exception to this constitutional doctrine, 
 and that is known as the "police power," This 
 is that doctrine by which the Legislature, that is, a 
 majority of people acting through its representa- 
 tives, can prohibit certain acts, or regulate certain 
 private relations, for the purpose of securing the 
 moral and physical health of the people. The 
 Western court, in passing on this Anti-Truck Act, 
 said : " Under pretence of this power the Legisla- 
 ture cannot prohibit harmless acts which do not 
 concern the health, safety, and welfare of society. " 
 I am willing to accept this definition; but is this 
 truck contract a harmless act ? Labor experience 
 has shown it to be a very harmful act ; an act 
 leading to great fraud and abuse. It seems to 
 me, therefore, that these Southern and Western 
 courts, despite their excellent motives and the 
 stirring rhetoric in which they announce their 
 decision, might well have considered this money- 
 payment matter a fair one for police regulation ; 
 particularly just because the need of the law was 
 only for certain trades, as the mining industry, 
 for instance, which is necessarily remote from
 
 THE EMPLOYMENT CONTRACT 63 
 
 markets, and where many of the employees are an 
 ignorant class, with little knowledge of affaii"s. 
 Sailors have been the subject of similar protec- 
 tion for the same reason from time immemorial. 
 But we must hurry on. 
 
 Weekly Payments, 
 
 After rate and medium of payment, we natu- 
 rally come to time of payment. Many of our 
 States have recently been passing laws requiring 
 employers of labor to i)ay wages weekly, fort- 
 nightly, or monthly, and to pay in full the whole 
 amount that may be due up to a few days before. 
 Some of the States limit this restriction to corpo- 
 ration employers, for the express object of meeting 
 the constitutional objection. For our States can 
 indirectly compel corporations to do a great many 
 things which it might not be constitutional for 
 them to require of individuals ; for the reason that 
 all corporations are the creature of the State, and 
 if they refuse to obey such orders, their charter is 
 simply taken away. But some States have de- 
 clared these weekly payment laws to be unconsti- 
 tutional, even as to corporations ; and in every 
 State where the question has arisen in a court of 
 last resort, weekly payment laws a[)plying to in- 
 dividuals have been declared unconstitutional, 
 with the exception only of Miissachusetls.
 
 64 LABOR IN ITS RELATIONS TO LAW 
 
 Such Laws Constitutional in Massachusetts. 
 
 The Massachusetts constitution is the oldest 
 and in some respects the most pecuhar that we 
 find in any State. In olden times the people of 
 the colony of Massachusetts Bay and of Plymouth 
 had made and submitted to a vast amount of 
 sumptuary regulation of life. It had been pre- 
 scribed by law what they should eat, drink, and 
 wear, and how long they should work ; and it 
 had also, of course, been prescribed by law what 
 they should pay for their work. Now, there was 
 nothing peculiar in this at that time, because this 
 was done while the statutes of Elizabeth were 
 still in force in England. Therefore, to my mind, 
 it is no argument that because the primitive status 
 of authority justified a thing in the seventeenth 
 century, it should, with us, be cited as a consti- 
 tutional precedent to justify the same in the nine- 
 teenth. There is, however, one provision in that 
 State constitution which is found in no other 
 State, and it is upon this principle that its Su- 
 preme Court based their late instruction to the 
 the Legislature, declaring that a weekly payment 
 law applying to all persons in that State would be 
 legal. That provision is contained in the article 
 of the Massachusetts constitution concerning the 
 legislative branch of government, and says that 
 " the Legislature may make all manner of whole- 
 some and reasonable orders, laws and ordinances,
 
 THE EMPLOYMENT CONTRACT 65 
 
 directions and instructions, either witii penalties 
 or without, as they shall judge to be for the good 
 and welfare of this country, so as the same be not 
 repugnant or contrary to this constitution." You 
 see that this wording raises the question whether 
 it has not expressly abolished the unwritten con- 
 stitution ; that is, whether the Massachusetts con- 
 stitution has not expressly given its Legislature 
 power to do anything not contrary to its exact 
 words, although it would be unconstitutional at 
 common law ; and the Supreme Court of Massa- 
 chusetts at present rather inclines to this view. 
 The exact point we are discussing seems unim])or- 
 tant. If I hire a clerk by the month at a salary 
 large enough to make it (luite easy for him to wait 
 a month for his [)ay, and we both desire it, it cer- 
 tainly seems an interference with our liberty that 
 we should iK^t make su<:h a contract, though it 
 could not be said that either side were deprived 
 of an im])ortant liberty by the restriction. This, 
 therefore, is an example of a case which, possibly 
 expedient, certainly entirely unobjectionable, may 
 nevertheless be unconstitutional ; and, if so, we 
 should i)roceed cautiously. This, at least, in all 
 States except Massachusetts. 
 
 Expediency of Such Laws. 
 
 Now, there may be some practical justification 
 for refusing to consider these laws constitutional. 
 5
 
 66 LABOR IN ITS RELATIONS TO LAW 
 
 In so holding, the lUinois court says: " It was 
 suggested, in the interest of employees and em- 
 ployers as well as in the public interest, that em- 
 ployees consent to accept only so much of their 
 wages as was actually necessary to their suste- 
 nance, reserving payment of the balance until 
 business should revive, and thus enable the fac- 
 tories and workshops to be open and operated 
 with less present expenditure of money. Public 
 economists and leaders in the interests of labor 
 suggested and advised this course. In this State 
 and under this law no such contract could be 
 made. The employee who sought to work for 
 one of the corporations enumerated in the act 
 would find himself incapable' of contracting as all 
 other laborers in the State might do. The cor- 
 porations would be prohibited from entering into 
 such a contract, and if they did so, the contract 
 would be voidable at the will of the employee, 
 and the employer subject to a penalty for making 
 it. The employee would, therefore, be restricted 
 from making such a contract as would insure to 
 him support during the unsettled condition of 
 affairs and the residue of his wages when the pro- 
 duct of his labor could be sold. The employees 
 would, by the act, be practically under guardian- 
 ship ; their contracts voidable as if they were 
 minors ; their right to freely contract for, and to 
 receive the benefit of, their labor, as others might
 
 THE EMPLOYMENT CONTRACT 67 
 
 do, denied them." These wise words will show 
 how dangerous it is to regulate human action by- 
 law even when a Legislature may foresee nothing 
 but good from the restriction. 
 
 Screen Laws. 
 
 Their are certain provisions as to the measuring 
 of wages that have become the subject of much 
 debate ; for instance, that miners should be paid 
 for each ton of coal mined, and the tons weighed 
 fairly under official inspection at the mine. Most 
 States have declared this law unconstitutional. 
 The Illinois decision says it is unconstitutional on 
 the ground that the employer and employee hav(i 
 the clear right to contract for a wage at so much 
 per day, if they choose, and not by the ton. And 
 so far as the decisions rest on this principle they 
 are unquestionable. But apparently some of them 
 go furtlier and set aside a law which merely i)ro- 
 vides for the method of weighing the coal when 
 the miner is paid for it by the ton. But this again 
 would seem a fair subject of police regulation, and 
 therefore constitutional enough. 
 
 Substantially, therefore, we see that wages in 
 modern times have not been regulated b)- law, 
 nor, doubtless, is it expedient to do so ; and in our 
 country most of the statutes which attempt to regu- 
 late the time, method, and conditions of paying 
 them have been declared to be such restrictions on
 
 68 LABOR IN ITS RELATIONS TO LAW 
 
 personal liberty as to be unconstitutional when 
 regarded as laws made by the State. Of course it 
 is always to be borne in mind that this says nothing 
 as to their expediency, or as to the propriety of 
 labor unions or other combinations insisting on 
 such regulations, and pul)lic sympathy and news- 
 paper support going with them. 
 
 Eight- and Ten-Hour Laws. 
 
 The next question in importance to rate of 
 wages is, of course, that of length of a day's work. 
 This was substantially covered in my first lecture, 
 and I will merely repeat the two principles, that 
 on the one hand our constitution — that is our 
 principles of liberty — demand that a man should 
 be allowed to work as long as he likes ; and it is 
 at least doubtful whether even from the most selfish 
 point of view of the labor interest this principle is 
 not desirable. It is the province of labor itself, 
 through its unions, to prescribe what contract for 
 length of time it shall make rather than to risk the 
 cast-iron limitation of the State. From the Eng- 
 lish Labor Report of 1893, it appears that many 
 of the labor unions were opposed to the eight-hour 
 law on the ground that it would not permit them 
 to make up for the lean years by working over-time 
 in the prosperous years. And, on the other hand, 
 we have established the principle that the State 
 may constitutionally and wisely regulate the hours
 
 THE EAIPLOYMENT CONTRACT 69 
 
 of persons not fully citizens, and so unable to pro- 
 tect themselves; that is, of women and children ; 
 and the factory law-s regulating only the hours of 
 women and children have, since their adoption 
 some fifty years ago, practically determined the 
 length of the day for men as well. To this sym- 
 pathetic determination there is, ofroiirse. no con- 
 stitutional objection. But, again, in these years 
 of woman suffrage, and under the modern view 
 that a woman is as fully competent to protect her- 
 self as a man is, it is e.\tremely dilificult, logically, 
 to sustain the eight-hour law as to women ; and 
 such a law has, in fact, been annulled in Illinois, 
 and may be in other States, with the e.xception of 
 Massachusetts, where it has been definitely sus- 
 tained. Several cases where the laborer himself 
 desired to work more than eight hours a day are 
 now on their way up to the Supreme Court of the 
 United States. Mr. Edward Atkinson has pro- 
 posed to test the (juestion in this way : Suppose 
 Haifa dozen middle-agetl, intelligent, unmarried 
 women, perfectly competent to look after them- 
 selves, who are engaged in some skilled manufact- 
 uring labor recpiiring only a little power, were to 
 rent an electric wire, have it brought into their 
 own dwelling, and proceed to weave and spin in 
 their own house, although working under a fac- 
 tory and getting pay from it ; suppose they chose 
 to work fourteen hours a day. if they liked — as
 
 70 LABOR IN ITS RELATIONS TO LAW 
 
 many a woman now does work about her ordinary 
 domestic avocations — would the court sustain an 
 officer coming in and arresting them as having 
 committed a criminal offence in so doing? And if 
 the courts of Massachusetts would sustain such a 
 conviction, would public sentiment do so? I con- 
 fess I have great doubt. In New York, under a 
 statute requiring the city of Buffalo to employ 
 laborers only eight hours, and requiring con- 
 tractors with that city to follow the same rule 
 under penalty of a misdemeanor, the superintend- 
 ent of a respectable corporation has been con- 
 victed of a misdemeanor for allowing some of his 
 men to work ten hours ; and the case is now on its 
 way to the Supreme Court of the United States. 
 On the other hand, there is a case in California 
 directly counter to this. The city of Sacramento 
 passed an ordinance that nobody working for the 
 city should work more than eight hours or employ 
 Chinese labor. The latter part was not material 
 to the case, but a contractor who allowed his men 
 to work more than eight hours was indicted in the 
 same manner as in the New York case. And the 
 court, with some indignation, held that such a 
 law, while invalid even in a civil suit, was out- 
 rageously so when it made a person not a city 
 officer who violated it guilty of a criminal offence.
 
 TH!! EMPLOYMENT CONTRACT 71 
 
 Labor not a " Commodity." 
 
 Thus we have attempted to show the historical 
 growth and the present importance of the great 
 princijjle that the labor contract, more than all 
 contracts, should be free on both sides. The law 
 is certainly not slow in endeavoring to help the 
 laborer where it can. In fact, I think we may 
 fairly state that the industrial laborer at least is 
 beginning to be a privileged class in the law. 
 While all our constitutions demand that no man 
 or set of men should have special privileges from 
 the community, I think you will agree with me 
 that the many laws I have mentioned go quite a 
 little way in giving to the industrial laborer, at 
 least, advantages and protections which the ordi- 
 nary citizen does not have. But I must hasten to 
 add why I think there is no objection to this. The 
 theory that labor is property, and that the laborer 
 is like anybody else having property to sell, is mis- 
 leading, unless we at the same time recognize that 
 while he has goods to sell, they are goods of a very 
 peculiar nature, being, to wit, himself, his time, 
 and his energies. By the assumption of the case, 
 he has no other wares, no other capital. By the 
 assumi)tion of the case, he must sell ; he cannot 
 wait for a market. The seller of any other goods, 
 by the very fact that he has them to sell, has some 
 capital upon which he can live while he is trying 
 to make a satisfactory contract. Take the sim-
 
 72 LABOR IN ITS RELATIONS TO LAW 
 
 plest case of all for instance — that of a farm girl 
 who goes to market to sell eggs ; if she cannot 
 get any decent price for the eggs, she can at least 
 live upon them while waiting for the market to 
 improve ; but the seller of labor, and above all, 
 of specialized factory labor, the weaver or the 
 laster, who can turn his energies to nothing else, 
 whose physique does not probably permit him to 
 become an ordinary day-laborer, the creature of 
 modern complex industrial conditions, is pecul- 
 iarly at a disadvantage when his market fails 
 him. Called into being by a complex social sys- 
 tem, he has an ethical right to demand that the 
 social system which has so narrowed his use shall 
 provide him with reasonable opportunity to exer- 
 cise it. That is the ethical ground upon which 
 this favoring of the industrial laborer must be sus- 
 tained, and the ground upon which we may hope 
 not only that it will be sustained, but will be 
 much increased, generally through the labor con- 
 tract itself, by action of trades-unions and en- 
 lightened employers, but sometimes, where it is 
 necessary, by legislative act, provided only that 
 such acts are not destructive of the principles of 
 liberty under which we live. 
 
 " The Contract System." 
 
 There has been a tendency of late — it seems to 
 me, a mistaken one — on the part of labor and its
 
 THE FMPLOYMENT CONTRACT 7;, 
 
 sympathizers to object to any form of cx[)ress con- 
 tract witli the employers. It seems to me that this 
 is a most lamentable step backward. A part of the 
 best hope of the laborer lies that way. The most 
 important practical case so far arising is that pro- 
 vision, of common use by employers for a very 
 long time, which seeks to protect them against a 
 capricious or malignant desertion of the work on 
 ihe part of the laborer, l)y the penalty clause, a 
 week's or a month's notice, a forfeiture of wages. 
 This reminds me that in speaking of the special 
 privileges accorded the seller of labor by modern 
 law and custom, I might have noted as perhaps 
 the most important of all, that the labor contract 
 is the only one which one party is practically free 
 to break, and the other left without remedy. 
 The seller of any other kind of goods must per- 
 form his contract, and the buyer has an amjjle 
 remedy for his failure to do so. A man who con- 
 tracts to build a house cannot put up four walls, 
 and then leave it without a roof and demand pro- 
 l)ortionate pay ; but a man who contracts to sell 
 his labor, although it be for the completion of a 
 complicated piece of goods requiring long time, 
 may, individually, stop work at any time, and the 
 employer has no remedy. Even when a special 
 contract is made for a month or a year, llic em- 
 ployer has practically no remedy, for the laborer, 
 having only labor, is not responsible as a capital-
 
 74 LABOR IN ITS RELATIONS TO LAW 
 
 ist, and for all time our law has refused to enforce 
 the specific performance of the labor contract. 
 
 Only in two English-speaking communities, so 
 far as I know, has there been any modern law 
 aimed at giving the employer a remedy for viola- 
 tion of the labor contract. First and most im- 
 portant, is the recent English statute under which, 
 in certain employments, there is a summary proc- 
 ess for the sudden and unexcused refusal of a 
 laborer to perform his work ; he may be brought 
 before a magistrate and sentenced to a small fine 
 and brief imprisonment. The other case is in 
 South Carolina and Arkansas, where contracts for 
 farm-labor may be put in writing and witnessed, 
 stating the length of time or what particular crop 
 the laborer is to raise and gather, and what and 
 how he is to be paid, whether by money or shares 
 in the crop, and, in such case, when a contract 
 is thus formally made, if the laborer abandons the 
 contract without good cause, in Arkansas he for- 
 feits all his wages due ; in South Carolina he is 
 guilty of a misdemeanor ; and so also in Louisi- 
 ana, in case he has received goods, as, for instance, 
 seeds or agricultural implements, upon faith of the 
 contract. These are the only efforts at enforcing 
 individual labor contracts by modern statute. Of 
 course, when we come to a collective breach of 
 contract done by combination or conspiracy, and 
 particularly when done for the purpose of injuring
 
 Tlin rMPLOYMnNT CONTRACT 75 
 
 the employer, we get into the common law of 
 strikes and boycotts, which is a very dilTcrent 
 thing. But individually, the contracting laborer 
 is allowed to break his contract without a penalty ; 
 and can never be forced to perform it, as all 
 other contractors of any kind may be. 
 
 It was, therefore, not only natural but rea.son- 
 able that employers should require some notice, 
 and in the case of industrial labor it has commonly 
 been a modest demand — one week or two weeks. 
 Nevertheless this notice has been much objected 
 to ; statutes have already been introduced in some 
 States making it illegal, and the Knights of Labor 
 generally are, I understand, in favor of prohibit- 
 ing it. The State of Massachusetts, for instance, 
 passed a law providing that where an employer 
 required such notice from his employees, the em- 
 ployees should be entitled to the same notice from 
 the emjiloyer. This is certainly fair enough. But 
 this year a statute was passed going a little further. 
 Whereas the first law i)rovided that the employer 
 might discharge a laborer in case of a general 
 strike, or for incapacity or misconduct, without 
 giving the laborer such notice, a statute approved 
 March i6th last has forbidden this, so that now 
 a Massachusetts employer who requires a two 
 weeks' notice of intention to leave from his em- 
 ployees cannot discharge a lal)orer who, for instance, 
 is drunk, or who wilfully destroys a machine,
 
 76 LABOR IN ITS RELATIONS TO LAW 
 
 without paying liim two weeks' wages in advance. 
 Still, even this is a trifling matter ; and so far no 
 State has passed a statute forbidding employers 
 and employees to make any contract other than 
 the ordinary indefinite verbal one. Nevertheless, 
 a strong effort is being made to bring such a 
 change about. In the Haverhill strike last win- 
 ter, the avowed ground was the institution of the 
 contract system, so called. Now, the contract 
 made or imposed upon their employees by the 
 Haverhill employers against whom the strike wan 
 called was a very bad one ; notably the so-called 
 "apprentice contract," where the employers went 
 back to the old dodge first introduced by em- 
 ployers in the time of Queen Elizabeth, by which 
 the bulk of their work was done for a mere pit- 
 tance by a continual succession of so-called ap- 
 prentices ; the only difference between Haverhill 
 and Elizabethan England being that the Haver- 
 hill contract did limit the apprentice employment 
 and pay to three years, while under the statute of 
 Elizabeth it could run to seven. This contract, I 
 say, was a cleverly devised method of paying 
 labor an unfair price under a misleading induce- 
 ment that at some indefinite future time they 
 would get a bonus, or, at least, l)e employed at a 
 full rate. As a matter of fact, when that time 
 came, as the employees claimed, they were com- 
 monly discharged entirely. But granting that this
 
 Tlit EMPLOYMENT CONTRACT 77 
 
 was a most iniquitous contract, 1 would urge that 
 the Haverhill strikers antl tlieir sympathizers, and 
 labor sympathizers in other cases, will make a 
 great mistake if they attack the general use of 
 fair and clearly defnied contracts rather than lim- 
 iting their attack to the bad contract offered in any 
 particular case. 'I'he (juestion of strikes among 
 railway men and telegraph operators, for instance, 
 can hardly be solved without it. I believe that 
 in a fair and clearly e.\pres.sed contract, of which 
 both sides shall have a copy, and with whose pro- 
 visions they shall be familiar, lies one of the hopes 
 of improving the present labor situation. The in- 
 definiteness of the labor contract has been a curse 
 to both sides, and particularly to the employee. 
 By all means, there should be mutuality ; and the 
 trades-union should see to this. If they cannot 
 it may be necessary to risk a statute requiring it. 
 But, as in the recognition of the laborer as a citi- 
 zen, free to contract, capable of acquiring con- 
 tractual rights, has been his great emancipation 
 of the past ; so, 1 believe, in the extension of the 
 contract idea, in the recognition of the collective 
 contract, combination bargaining on both sides, 
 will be the great emancipation of the future.
 
 Ill 
 
 STRIKES AND BOYCOTTS 
 
 The Law of Conspiracy. 
 
 The subject we come to to-day, to a student of 
 ethics, is perhaps the most interesting in the 
 whole domain of law, for it is the only branch of 
 the law — certainly the only branch of civil law as 
 distinct from criminal — where a higher principle 
 is enforced than mere legality, where the law it- 
 self undertakes to go into the higher domains of 
 morality and ethical purpose. We shall find, even 
 in the law of strikes, but clearly and avowedly 
 when we come to the law of boycotts, that there 
 are two great points in which this law differs from 
 all other legal regulations. First, that it under- 
 takes to judge men and their conduct as the re- 
 cording angel might judge them, independent of 
 any overt act ; and second, that it undertakes to 
 judge not alone what men do, but their intention 
 and purpose in doing it. Now, first I want to 
 clear away a confusion which still exists in the 
 books of most writers, but is an inheritance from 
 that obsolete Elizabethan law of which I have
 
 STRIKES AND BOYCOTTS 79 
 
 SO often spoken. You will find still in many text- 
 books, and in sonie cases, the assertion that there 
 cannot be such a thing as a legal strike. In fact, 
 the very latest published text-book on the subject 
 — that of Cogley, published in Washington in only 
 1893 — declares all strikes illegal, for the reason 
 that they are necessarily done by prearrangement 
 between many workmen to cease working simul- 
 taneously for the express purpose of injuring the em- 
 ployer. Now, this statement is not the law to-day, 
 and it is not the law, because the last clause, that 
 all strikes are for the express purpose of injuring 
 the employer, is not true. The explanation of the 
 survival of this notion is that under the statute of 
 Elizabeth, so often quoted, and other old English 
 statutes, it was illegal to pay wages beyond the 
 amount limited by law, and as a consequence of 
 this a combination to enforce such higher rate of 
 wages was necessarily a combination with an ille- 
 gal purpose. Upon this ground was the old Joui- 
 neymen Tailors' case decided in England in 1721, 
 which in effect made all strikes or labor unions to 
 raise wages a conspiracy ; and that was the law in 
 England down to the beginning of this century ; 
 but it was never fully adoi)ted in this country. 
 
 Strikes not Illegal in the United States. 
 
 The cases in New York, Pennsylvania, and 
 Massachusetts decided early in this century
 
 8o LABOR IN ITS RELATIONS TO LAW 
 
 show an ever bolder intention to distinguish the 
 Journeymen Tailors' case ; so that it was soon es- 
 tablished — certainly before the year 1830 — that a 
 strike, even when it is a preconcerted agreement to 
 leave employment, in the absence of any breach 
 of express contract, is not a conspiracy which 
 subjected the striker either to civil or criminal 
 liability. Doubtless this tendency of our courts, 
 while it rested morally upon general considera- 
 tions of humanity, rested legally on the ground 
 that they held the old English labor statutes never 
 to have become part of the Common Law in this 
 country. But whatever be the reason, such is the 
 fact ; and a strike, merely as a strike, to raise 
 wages without other motive, was never illegal in 
 this country. And in England tliey soon arrived at 
 the same result, but by another method. There an 
 express statute had to be passed. There are sev- 
 eral such statutes, but they may be said to date 
 from the year 1S24." In that year an act was 
 passed providing that no workmen entering into 
 a combination to advance wages or lessen work- 
 ing time shall be subject to prosecution for con- 
 spiracy, or any criminal punishment. Now, this 
 act also provided that no combination to induce 
 another to depart from his service before the time 
 for which he is hired, or to induce him to refuse 
 to enter into work, or to force the employer to 
 carrv on his business in a certain wav, should be
 
 STRIKES AND BOYCOTTS 8i 
 
 an illegal conspiracy. This, as we shall see in a 
 moment, was going too far ; and the next year 
 that i)art of the statute was repealed ; but the re- 
 pealing statute still jirovided that it should not 
 be penal for laborers to combine for the sole pur- 
 pose of determining the rate of wages or the 
 hours of work, or to enter into an agreement 
 among themselves for the purpose of fixing such 
 w^es or hours ; ami in the course of the next 
 twenty years the legality of all trades-unions was 
 fully established in England. As I said, they 
 were, in my opinion, never illegal in this country. 
 
 Intention the Test. 
 
 But we shall be asked, if all strikes are legal, 
 how is it then that even last year certain strikes 
 were declared illegal, and certain people who 
 ordered them or took part in them were actually 
 punished? This brings us to that interesting law 
 of conspiracy which I spoke of in the beginning ; 
 and I fust ask you to note, that when I said all 
 strikes were legal, I did not .say that a combina- 
 tion uot only or not chiefly to raise wages, but 
 mainly to injure property, or some definite per- 
 son, that is, what we now call a boycott, was 
 legal. A naked boycott, a boycott having for its 
 sole purpose the injury of some definite person or 
 class of persons, or the destruction of some defi- 
 nite property, has never been legal either in Eng- 
 6
 
 82 LABOR IN ITS RELATIONS TO LAW 
 
 land or America, and it is not legal to-day. This 
 is one of the oldest doctrines in the law, dating 
 back to 1 2 2 1 , when the Abbot of Lilleshall com- 
 plained that the bailiffs of Shrewsbury "did him 
 many injuries against his liberty'''' in that they 
 caused proclamation in the town that none should 
 sell to him or his men under penalty of ten shil- 
 lings. Why is this ? Why is a combination to strike 
 legal and a combination to boycott not ? The 
 sole answer is that the intention is different. Here 
 the law makes — in some cases the intention, in 
 others the purpose — the sole distinction. There 
 is no dry letter of law about this doctrine ; it 
 punishes or inflicts with damages the offender as a 
 parent might punish a child, not for what he did 
 do, but for what he meant to do, and for the object 
 he had in doing it. The law of conspiracy may be 
 stated most concisely, that a criminal conspiracy, 
 or a conspiracy which subjects the partaker either 
 to criminal punishment or to damages to the person 
 injured, is either (i) a combination to do an ille- 
 gal or immoral thing, or to injure a definite person 
 or class of persons, or the public generally, whether 
 the means employed be legal or not, and although 
 the thing sought or the act done would not, in the 
 case of a single person, subject him to any liabil- 
 ity ; or (2) it is a combination to do a perfectly 
 legal thing by means which are, or any one of 
 which is, criminal or illegal ; and in both cases
 
 STRIKES AND BOVCOTTS 83 
 
 the thing punished is tlic coiiibinatioii to do to 
 others as you woukl not have them do to you, and 
 not any single act; nor, indeed, does it need 
 any act whatever to make the combining persons 
 Hable in damages, or even subject to the criminal 
 law. You will see what l)road ethical ground wc 
 have entered upon here. Here are two ethical 
 points novel in the law: First, that it is enough 
 if the object be immoral or wrong — it need not be 
 illegal ; second, that the intention is made crimi- 
 nal even without the act. As you well know, in 
 the case of single persons the law does not go into 
 intentions or evil dispositions at all, when no 
 wrongful act has been done. More than this, 
 it is the common reproach of the law that it takes 
 no cognizance of acts which may be most wrong- 
 ful, most immoral, when they do not come witliin 
 the definite proscri[)tion of the law. An intlivid- 
 nal by himself, as every melodrama tells us, may 
 ruin another, may ruin him even with malice 
 aforethought, without the laws interfering to pre- 
 vent it in the least degree. He may spend his 
 life in malevolence to some other person, and yet 
 go unpunished on this earth. It is a stock re- 
 proach of the law that it suffers this. But what 
 I w'ant to emphasize is the fact that in this doc- 
 trine of conspiracy the law has undertaken to do all 
 that the moralist, perhaps even all the sentimen- 
 talist, would have it do. Now, before rejecting
 
 84 LABOR IN ITS RELATIONS TO LAW 
 
 this vast body of law (the only province in which 
 the law has endeavored to be simply moral, to 
 look solely at the purpose, to judge and prevent 
 those acts which, not technically unlawful, are yet 
 unjust or ruinous to others), we should scrutinize 
 most carefully the position the law takes, for if it 
 be a necessity to do away with this high attitude, 
 it is certainly a regrettable one. 
 
 Morality of Trade Combinations Considered in the Law. 
 
 The legal reasons advanced by judges and text- 
 writers for thus going into the domain of morality 
 are often different. Perhaps unnecessarily shy of 
 seeming to enforce the golden rule, judges com- 
 monly say, for instance, that the reason why the 
 law will punish or restrain a combination of a 
 number of people to injure a definite person in the 
 absence of any overt act, is the very much greater 
 power that a malevolent disposition has to hurt 
 another, when it is shared by many people and 
 artificially fomented among them. One manu- 
 facturer may hate, another personally ; may wish 
 him ill in his business. Of that evil intent the 
 law can take no cognizance ; but when a dozen 
 other manufacturers, perhaps in the same trade, 
 get together, and upon a common basis of hate for 
 this manufacturer, and such malevolence is the real 
 purpose of the combination, then, even though 
 they have done nothing, the law says a combina-
 
 STRIKES AND BOYCOTTS 85 
 
 tion of this kind gains such strength by the very 
 fact of its being a combination that we will re- 
 strain and punish it without any regard to what 
 acts they may have committed. In the first 
 branch of conspiracy, therefore, that kind of con- 
 spiracy which seeks to attain an unlawful or 
 immoral purpose or a definite injury to a tliird 
 person, there is no question of acts at all ; only in 
 the other branch of conspiracy, that to do a thing 
 which may be legal and moral by illegal acts, 
 does the question of the act become material ; and 
 in that case it is held that the act of one member 
 of the combination is the act of all, if it naturally 
 followed from what they undertook to do. 
 
 Boycotts. 
 
 The general American law upon boycotts will 
 be found stated in two cases, one in Vermont, the 
 other in Ohio. Thus, in the case which arose in 
 Ohio, a bricklayers' union declared a boycott 
 against Parker Brothers, who were contracting 
 bricklayers, first, to get paid a fine imposed ujion 
 one of their employees who was a member of the 
 union, and, second, to reinstate one apprentice 
 who had left thi-m and make them discharge an- 
 other. Parker P>rothers refused. The union de- 
 clared a boycott against them, and designated one 
 of the defendants, P. H. McElroy, to enforce it, 
 and paid him a salary of twenty-seven dollars a
 
 86 LABOR IN ITS RELATIONS TO LAW 
 
 week and his expenses for so doing. McElroy 
 continued in the work a number of months, and 
 issued a circular to all material men, including 
 Moors & Co., the plaintiffs, stating that Parker 
 Brothers were discriminating against the union, 
 and calling upon them to withdraw their patron- 
 age from Parker Brothers, and announcing that 
 any firm dealing in building materials who ig- 
 nores this request is hereby notified that "we 
 will not work his material upon any building, 
 nor for any contractor by whom we are em- 
 ployed." This was signed " By order Brick- 
 layers' Union, No. i." The plaintiffs, who 
 were a firm selling large quantities of lime to 
 the building trade, received one of these circu- 
 lars, and did stop sending lime to Parker Broth- 
 ers by delivery, but Parker Brothers sent a team- 
 ster who bought it for cash at the plaintiffs' cars. 
 McElroy, discovering this, sent to all the plain- 
 tiffs' customers and probable customers a circular 
 stating that members of the Bricklayers' Union 
 will not use materials supplied by Moors & Co. 
 and four other dealers, the effect of which circu- 
 lar was to interfere with Moors & Co.'s business, 
 and to cause a loss of customers who feared a 
 similar fate. Judge Taft, in a most carefully 
 written decision, held, in the first place, that the 
 declarations made to Moors & Co. by those of 
 their customers who withdrew their custom, made
 
 STRIKES AND BOYCOTTS 87 
 
 at the time they did so, that it was for fear of the 
 boycott, were competent evidence in the case ; 
 and then, the court went on to say : " Generally 
 speaking, if in the exercise of the right by one to 
 carry on his business or bestow his labor in his 
 own way, another suffers a loss, he has no ground 
 of action, there being no legal injury ; but in the 
 exercise of common rights which result in a mu- 
 tual interference and loss, such loss is a legal in- 
 jury or not. according to the intent with which 
 it has been caused, and the presence or absence 
 of malice in the person causing it. Here the acts 
 were done expressly to inflict loss upon the plain- 
 tiffs, and such loss resulted. If they were mali- 
 cious they were actionable. When intentional 
 and wilful acts are committed, calculated to cause 
 damage to a person in his lawful business, and 
 done with the unlawful ])urpose of causing such 
 damage without right or justifial)le cause, and such 
 actual damage does occur, the i)erson injured may 
 sue any person committing such act ; or in case 
 there be a number combining for that purpose, 
 the persons may be indicted for the conspiracy, 
 even without showing any actual damage to the 
 person or the persons against whom it is aimed." 
 But to my mind the most instructive case on 
 the whole subject is the Vermont case of State v. 
 Stewart, decided in 18S7. This was an indict- 
 ment for a conspiracy to hinder the Ryegate
 
 88 LABOR IN ITS RELATIONS TO LAW 
 
 Granite Works from employing certain granite 
 cutters, who as a matter of fact were not unionists, 
 and to hinder and deter them from accepting em- 
 ployment in the Ryegate Works, the real object 
 being, by such injury to the company and threats 
 or insult to the men, to deter them from working, 
 and so compel it to conform to the regulations 
 of the National Stone-cutters' Union. The court 
 held that a conspiracy to interfere with the lawful 
 prosecution of the industry of a third person, as 
 well as to control the free use by workmen them- 
 selves of their own labor for such persons as they 
 pleased, was a criminal conspiracy both by the 
 common law of England and tliat of Vermont, and 
 said : " The boycott is not the remedy to adjust 
 the differences between capital and labor." 
 
 Conflict of Opinions on Boycotting. 
 
 This boycott question is the very latest devel- 
 opment of labor law, and is not yet authoritatively 
 settled, throughout this country at least. On the 
 surface the decisions appear to conflict ; but I be- 
 lieve that the statement I have made is an approx- 
 imation of what the law is going to settle down to. 
 Certainly, it is the only principle upon which any 
 attempt can be made to reconcile the boycott 
 cases. Thus, in a New York case, on the one 
 hand, the keeper of a large saloon on Fourteenth 
 Street was boycotted. Masses of workmen pa-
 
 STRIKES AND BOYCOTTS 89 
 
 raded the street with bands and opprobrious epi- 
 thets, which practically prevented the public 
 from trading at his place. Judge Barrett decided 
 that it was an illegal conspiracy by which both an 
 unlawful injury to his property was effected, and 
 the person taking part became liable to the crimi- 
 nal law ; and they were convicted by a jury and 
 sentenced. And Judge Barrett said that i)hysical 
 violence, or even the threat of physical violence, 
 was not necessary; that people in modern life 
 might be deterred from doing business by other 
 means, such as by insult or opprobrious epithets, 
 and the fact that the weak or gentle might be de- 
 terred from patronizing the shop was a sufficient 
 menace to make it a criminal offence. Generally 
 stated, however, there was nothing actually done 
 in this case which the employees had not a perfect 
 right to do. They had a perfect right to walk 
 up and down the street in front of anybody's shop. 
 Now, on the other hand, in a similar case which 
 occurred in Boston only a few months ago. Judge 
 Oliver Wendell Holmes held that such parading 
 up and down in front of a shop for the purpose of 
 inducing other laborers not to work for the objec- 
 tionable employer was not a criminal conspiracy, 
 and not even a conspiracy which gave the shop- 
 keeper a right to a civil remedy or to an injunc- 
 tion. At first sight, it might seem impossible to 
 reconcile these two cases, which I have taken as
 
 90 LABOR IN ITS RELATIONS TO LAW 
 
 samples ; but I believe they very neatly show just 
 where the true law, and I may add true moral- 
 ity, lies. In the New York case it became evi- 
 dent in the whole trial that the main object of 
 the combination, though it may have started in 
 a labor dispute, was not to improve the condi- 
 tion of the striking employees, get them better 
 hours or anything of that sort ; by the time the 
 case got into the courts, at least, it was evident 
 that the main object of their combination was 
 to injure that particular employer ; but in the 
 Boston case the main object of the combination 
 still was to get better wages, by refusing to work 
 themselves and by persuading others not to go to 
 work in their places ; and the court must have 
 thought that this persuading was the act, not the 
 purpose, of the combination. You will note that 
 the acts done in both cases were precisely the 
 same. They can only be distinguished on this 
 moral ground ; but I believe that that may be a 
 satisfactory and a sufficient reason for distinguish- 
 ing them. In other words, the question in any 
 case of boycott is, what do the persons com- 
 bining really want ? Do they want solely and 
 simply by fair means to better their own con- 
 dition ? Or have they got into such a state of 
 mind that they want maliciously to injure some 
 particular employer, either their own or somebody 
 else's ?
 
 STRIKES AND BOYCOTTS 91 
 
 Illegal Acts and Illegal Purpose. 
 
 I do not wish to confuse this statement, which 
 I hope is a clear one, by any quahfication ; but 
 lest I may not appear fully to cover the subject, 
 I must note that there is one other point which 
 may tend to such confusion if I do not speak of it, 
 and which, perhaps, may have hatl something to 
 do with this New York case; that is, the question 
 of an illegal act. You will remember that what I 
 call the second kind of conspiracy — by the way, I 
 much prefer the phrase " illegal combination," for 
 the very word "conspiracy" seems to imply 
 something criminal — the second kind of illegal 
 combination was tliat to accomplish a lawful pur- 
 pose by acts avowedly illegal, or by means which 
 would necessarily become illegal. That is, if in 
 these cases the striking employees did have as a 
 sole ol)ject the bettering of their own condition, 
 and did not wish or intend to injure their em- 
 ployer, nevertheless, if circumstances were such 
 that they could only persuade otlier emjjloyees 
 from going to work for him by intimidation, the 
 combination would have been unlawful. 
 
 And now we may, from these two cases, draw 
 also another distinction which helps to make the 
 subject clearer still, namely, that it is always ille- 
 gal for persons to combine to ])revent other per- 
 sons from trading with A B. btit it is not always 
 illegal to combine for the purpose of persuading
 
 92 LABOR IN ITS RELATIONS TO LAW 
 
 Other laborers from working for A B. Now, this 
 distinction is entirely inexplicable except upon 
 the ground I have mentioned, that in the one 
 case it is more clear than in the other that the in- 
 tent of the persons combining is to injure A B. 
 Of course, if actual intimidation is used in either 
 case, that is an illegal act, and the conspiracy may 
 therefore become illegal under what I have called 
 the second ground, although, on the other hand, 
 it is possible that any specific act of intimidation 
 might be punishable without holding that such act 
 was so necessarily a consequence of the whole 
 combination as to make the combination itself 
 illegal. 
 
 In the same way, it makes a great difference 
 whether the combination is made among em- 
 ployees or outsiders and directed against their 
 employer or others. Employees may freely or- 
 ganize, adopt rules, impose penalties, or coerce 
 themselves, but not third persons ; still less can 
 third persons combine to coerce a person not em- 
 ploying them. For in such case there can be no 
 possible intentions of benefiting the consjurators, 
 but at best a desire to help their fellow-workmen ; 
 and the law does not yet recognize altruism to 
 this extent. 
 
 And just as men may not combine to do what 
 they may lawfully do individually, they may not 
 in many cases threaten to do what in doing were
 
 STRIKES AND BOYCOTTS 93 
 
 lawful enough. A strike may be lawful, when 
 the threat of striking is not. It has been decided 
 that while considerable "picketing" is lawful, 
 a threat to picket is not. So a man may do that 
 himself which he may not persuade others to 
 do. And as w-e have just seen, it may be lawful 
 for individuals to persuade others not to work for 
 A B, but not to combine with that purpose. 
 
 The Moral Test of Trade Combination. 
 
 So much for the law of boycotting as it stands 
 to-day. In determining wliether any combina- 
 tion is illegal conspiracy, you have to ask yourself, 
 first, Does it try to accomplish an illegal thing? 
 second. Does it try to accomplish an immoral 
 thing? as if it seeks to injure some definite per- 
 son, or class of persons, either by restricting him 
 in the full use of his faculties, or by injuring or 
 destroying any piece of property which he owns. 
 And if it do none of these, you have still to ask 
 yourself (although it is perhaps a combination 
 for a perfectly legal thing). Was it contemplated, 
 or does it necessarily imply, that the persons so 
 combining in fact agreed to accomplish that end 
 by unlawful means, as, for instance, by murder 
 and destruction of property on the one hand, or 
 by threats and intimidation on the other, or by 
 fraud or any other thing which the laws forbid ?
 
 94 LABOR IN ITS RELATIONS TO LAW 
 
 Sympathetic Boycotts. 
 
 Now, you will note that this reasoning entirely 
 destroys what is called the sympathetic boycott as 
 a remedy which labor may legally use. I make 
 no comment on this. I merely state the fact. 
 When the employees of a railroad combine to 
 prevent the owner of Pullman cars from having 
 free use of his property, it is perfectly clear that 
 they combine to injure that owner ; and as they 
 have no contract relation with him at all, it is 
 clear that their motive cannot be to get him to 
 raise their own wages. Undoubtedly this is tak- 
 ing away a strong weapon from combined labor, 
 but the question is whether it is taking away not 
 a strong weapon, but a weapon which labor has 
 any right to use. If I am annoyed by an or- 
 dinary trespass on my property, I may take the 
 man by his neck and shoulders and put him out ; 
 but I certainly may not explode a dynamite 
 bomb under his feet. When we say that the em- 
 ployees of the Pullman Car Company, for in- 
 stance, had a perfect right not only to combine 
 not to work themselves, but individually to per- 
 suade all the workmen in America not to work, 
 we have given them all the weapons of warfare 
 that the law at present permits to them. The 
 sympathetic boycott, therefore, is illegal. Now, 
 how about the sympathetic strike ?
 
 STRIKES AND BOYCOTTS 95 
 
 Strikes may be Illegal. 
 
 W'c have sliown that the ordinary strike by 
 itself has never l)een illegal in this country, and 
 was probably only illegal a century ago in Eng- 
 land on account of the peculiar interference of the 
 government in labor questions. We shall find a 
 singular repetition of this result of government 
 interference when we come to consider our statutes 
 against trusts; but for the present, and without 
 such interference of {)eculiar statutes, a strike is 
 l)erfectly legal ; and this because the direct object 
 of a strike is clearly to bring about the definite 
 improvement of condition, or increase of wages, 
 or decrease of working hours, for which the strike 
 was instituted ; and although the result may be 
 to injure the employer, yet that is regarded, first, 
 as too remote for the law to take cognizance of, 
 and, secondly, as the mere necessary consecjuence 
 of the ordinary efforts of persons to better their 
 own condition, just as competition in trade, even 
 when a combined competition, is perfectly legal, 
 although any one person in the same line of busi- 
 ness be injured or ruined thereby. But now sup- 
 pose the strike is done in such a peculiar way as 
 to unnecessarily injure the employer, so that the 
 intention to injure becomes manifest. A i)recon- 
 certed strike is avowedly a combination. If the 
 motive of personal injury is clear, does it thereby 
 become illegal?
 
 96 LABOR IN ITS RELATIONS TO LAW 
 
 You will find plenty of authority that it does. 
 For instance, in Nebraska, which is not a State 
 commonly supposed to be over-ready to favor capi- 
 tal, there is a case where eighteen tailors emplo)'ed 
 by one employer, having all of them taken out 
 pieces of cloth to be made into garments, the 
 cloth being already cut, agreed to strike on a cer- 
 tain March 31st, and return all their jobs unfin- 
 ished, and in such condition that the cloth's value 
 was destroyed, and the employer not being able 
 to get other labor, suffered money damage. The 
 Nebraska court here held that although any la- 
 borer had the right to leave his work when he 
 choose, yet the preconcerted arrangement by all in 
 this case bore such evidence of a specific attempt 
 to injure the employer that an action for damages 
 against the strikers would lie. So the United 
 States courts have held that a strike so organized 
 and managed as to appear to be expressly aimed 
 at retarding the United States mail, that being an 
 illegal purpose, became thereby an unlawful con- 
 spiracy. Nevertheless, my opinion is, and the 
 brief time remaining compels me to state in this 
 bald way what merely is a personal opinion, that 
 it is hopeless for the law to go into such a ques- 
 tion of incidental motive when the strike is other- 
 wise legal, and is conducted in an orderly way. 
 It would be hopeless for the courts to organize a 
 definite body of law which should state just when
 
 STRIKES AND BOYCOTTS 97 
 
 it was fair for all the employees of a railroad or a 
 mill to leave work. They have the undoubted 
 common-law right to leave at any time, individ- 
 ually or all together, and while it is possible that 
 a mere malicious leaving of the work without any 
 demand for higher wages or anything of that sort, 
 could be called an unlawful combination, yet the 
 moment any specific demand comes in, the courts 
 must necessarily take that to be their main mo- 
 tive. At the most, the question whether they left 
 work in such a way as to indicate a malignant 
 purpose, could only be left to a jury to determine 
 the fact ; and there, as it seems to me, the ques- 
 tion may safely rest. It is perfectly legal to pro- 
 vide against such an abandonment of important 
 occupations as to work great damage to the com- 
 munity ; and many States have .so provided ; that, 
 for instance, in the case of engineers of railroad 
 trains, they may not leave work until the day's 
 run is completed, the cars left in the depot of 
 their destination, and the engine safely housed. 
 This in order to prevent the starving of passengers 
 — women and children — as has sometimes hap- 
 pened by being left in the wilderness, possibly 
 during a snow-storm. But in a general way, and 
 in the absence of such reasonable statute, I believe 
 that the courts will finally .settle down into the 
 view not only that a strike is legal, but that being 
 legal it may bo organized at any time the laborers 
 7
 
 98 LABOR IN ITS RELATIONS TO LAW 
 
 choose. And now as to the sympathetic strike. 
 As in the case of the boycott, I am bound to say 
 that as the law stands to-day the sympathetic 
 strike is always illegal ; that is, a strike avowedly 
 not to obtain higher wages for themselves, but for 
 some other body of employees, possibly not even 
 in the same employment, is not such a motive of 
 benefiting themselves as will justify the combina- 
 tion which has as a result and purpose the injury 
 of their own employer, or the forcing him to boy- 
 cott a third party. But even here, as I hold the 
 future of labor law to lie largely in its recognition 
 of what has been called collective bargaining, so 
 I believe that a body of law will grow up which 
 will recognize the strike in one part of a trade to 
 benefit those employed in another part of a trade, 
 or even a different trade entirely, as dictated by a 
 motive which in the large sense is so clearly of 
 benefit even to the striking laborers themselves in 
 the long run, as to make the combination a justifi- 
 able one ; particularly when conducted by a re- 
 sponsible trades-union, including all parties on 
 the labor side. The law, however, in this country 
 at least, has not yet come to this large view. In 
 England, which has been always some years in 
 advance of us upon labor questions, there are 
 statutes expressly recognizing it.
 
 STRIKES AND BOYCOTTS 99 
 
 Illegal if by Persons Under Contract. 
 
 Of course, if a strike amount to the breaking of 
 a definite contract, that being illegal in itself and 
 made expressly so by the statutes of many of our 
 States, and by the English statute, it will render 
 the whole thing illegal ; and this is undoubtedly 
 the most logical reason that laborers have for ob- 
 jecting to any definite contract-system which makes 
 employment, instead of being from day to day, 
 from week to week, from month to month, or even 
 from quarter to quarter. For instance, there were 
 threats some weeks ago of a strike on the West End 
 Railway at Boston, at the time of the Christian 
 Endeavor Convention, to be organized then for the 
 very purpose of increasing the damage to the rail- 
 way. Would such a strike have been legal ? I 
 think perfectly so ; but, undoubtedly, if all the em- 
 ployees had been employed by contract requiring 
 both sides to give thirty days' notice, the combi- 
 nation to hrcak this contract would have been il- 
 legal. Nevertheless, 1 l)elieve that labor should 
 take a higher view and recognize that the advan- 
 tages of a definite and fair contract far outweigh 
 the value of this particular weapon, which, after 
 all, is a somewhat vindictive one. I doubt very 
 much if, in the long run, a strike with such a pur- 
 pose of excessive or specific injury to the employer 
 does any good to the employee. It leads to vin- 
 dictive feeling on both sides, and probably the
 
 loo LABOR IN ITS RELATIONS TO LAW 
 
 employer will get even with the striking employees 
 sooner or later. 
 
 Persuading of Strikes. 
 
 The leading case on strikes to-day is the North- 
 ern Pacific Railroad case, which is most instruc- 
 tive in showing the distinction I have just taken, 
 for the reason that in the first case the lower court 
 granted an injunction against the striking railway 
 operatives, both from persuading others to strike, 
 and from striking themselves in such a manner 
 as to cripple the employer's business. But upon 
 appeal, Judge Harlan of the Supreme Court of the 
 United States rendered another opinion which an- 
 nulled this part of the injunction (Arthur vs. 
 Oakes, 63 F. R., 310). 
 
 Union Labor. 
 
 This brings us to the great question of trades- 
 unions, and to the question of employing or not 
 employing union labor. The subject of trades- 
 unions themselves, I have reserved for the last lect- 
 ure, as I believe them to be one of the remedies 
 of the future ; but the question of employers dis- 
 charging men because they are members of a 
 union, or of unions forcing employers to discharge 
 men who are not members of a union, rather 
 comes under the liead of the boycott, which we 
 are now considering. 
 
 Trades-unions were, undoubtedly, at one time
 
 STRIKES AND BOYCOTTS loi 
 
 held 10 be illegal in England ; probably never so 
 in this country ; and now there are express stat- 
 utes in nearly all the States authorizing and en- 
 couraging their formation. In fact, the only diffi- 
 culty with us, as in England, is to persuade the 
 trades-unions to come under the law and make 
 themselves legal corporations. The members pre- 
 fer power without responsibility, and fear the 
 liability to injunctions which an organization 
 would give them. There have been many acts in 
 England legalizing trades-unions, passed in the 
 nineteenth century. I have only time to men- 
 tion the act of 1871, now in force, because its 
 provisions go into such details as to be very in- 
 structive to any student of the labor question. 
 The Trades-Union Act was passed in connection 
 with the Criminal Law Amendment Act relating to 
 intimidation, etc. That is, on the same day, Par- 
 liament pas.sed one act to show how far workmen, 
 individually, might go in industrial warfare, and 
 another stating clearly how far they could com- 
 bine for the purpose. 
 
 This act i)rovidcd that any person who should 
 (i) use violence to persons or property, (2) threat- 
 en or intimidate any person in such manner as 
 would justify a binding of him, to keep the peace, 
 by a magistrate, (3) molest or olstruct any person 
 in any of the following ways ; that is :
 
 I02 LABOR IN ITS RELATIONS TO LAW 
 
 (i) By persistently following him ; (2) by hid- 
 ing tools, clothes, or other property owned or used 
 by him, or depriving him of, or hindering him 
 in, the use thereof; (3) by watching or besetting 
 the house or place where he lives or works, or 
 the approach thereto, or following him in bands, 
 of at least three persons, in a disorderly manner 
 through any road, with a view to coerce such per- 
 son being a master, (i) to dismiss, or cease to 
 employ, any workman ; (2) not to offer any em- 
 ployment or work ; (3) to belong, or not to be- 
 long, to any association or combination, tempo- 
 rary or permanent ; (4) to pay any fine imposed 
 by such association, etc.; (5) to alter the mode 
 of carrying on his business, or the number or de- 
 scription of any persons employed by him. Or, 
 being a workman, to quit any employment, or re- 
 turn work unfinished ; or, being a master or work- 
 man, (i) to belong to, or not to belong to, any 
 temporary or permanent association or combina- 
 tion; (2) to pay any fine or penalty imposed 
 thereby. 
 
 The actions above defined are made criminal 
 offences, provided that no person shall be liable to 
 any punishment for doing, or conspiring to do, any 
 act on the ground that such act restrains, or tends 
 to restrain, the free course of trade, unless such act 
 is one above specified, and done with the object of 
 coercing as above mentioned. Oftences under
 
 STRIKES AND BOVrOTTS 103 
 
 this act are to l^e punished under the summary 
 jurisdiction acts (11 and 12 Victoria, Chap. 43). 
 
 And, on the same day was passed Chapter 31, 
 the Trades- Union Act, which provided that the 
 purposes of any trades-union shall not, by reason 
 merely that they are in restraint of trade, be 
 deemed unlawful so as to render any member li- 
 able to criminal prosecution for conspiracy or oth- 
 erwise, or so as to render void any agreement or 
 trust, but also providing that nothing in this act 
 should enable any court to entertain jurisdiction 
 of legal proceedings instituted to enforce or recov- 
 er damages for the breach of : 
 
 (i) Agreements between members of a trades- 
 union as such, concerning the conditions on 
 which they should, or should not, sell goods, 
 transact business, employ, or be employed ; or, 
 (2) for the payment of any sujjscription or pen- 
 alty to a trades-union ; or, (3) for the applica- 
 tion of the funds of a trades-union to provide ben- 
 efits to members, or lo furnish contributions to 
 outside laborers or enijjloyers, or to discharge any 
 fine imposed by court ; or. (4) any agreement 
 made between one trades-union and another : or, 
 (5) any bond to secure the jjerformance of any of 
 these four classes of agreements. But nothing in 
 this section shall he deemed to constitute any 
 of the above-mentioned agreements unlawful. 
 
 The practical result of this will ai>i)ear to l)e to
 
 104 LABOR IN ITS RELATIONS TO LAW 
 
 allow trades-unions, and the members thereof, to 
 make such agreements, but to leave them to their 
 own remedies in case they are broken ; which, in- 
 deed, are doubtless quite adequate. 
 
 The rest of the act provides generally for the 
 incorporation of trades-unions, their government, 
 and their powers in holding property ; for their 
 registration, rules, and annual reports. 
 
 The English Statute. 
 
 Now, the first thing that happened under this 
 new act was the case of Queen vs. Bunn (12 Cox 
 C. C, 316), which is the leading English au- 
 thority on the whole subject, as well as the latest. 
 This was a case where servants of a gas company, 
 working under contract of service, agreed to- 
 gether to quit the service of their employers, with- 
 out notice and in breach of their contracts ; and, 
 as the Masters and Servants Act of 1867 made the 
 breaking of a definite contract by either side a 
 minor penal offence, the court, in spite of the new 
 statute, declared that, being a combination to bring 
 about a breach of contract, the act did not apply. 
 Thereupon the Act of 1875 (38 and 39 Vict., Ch. 
 86), concerning conspiracy, was passed, which 
 was the last word upon the subject in England, and 
 was clearly meant to meet this case. It declares 
 that an agreement or combination of two or more 
 persons to do. or procure to be done, any act in
 
 STRIKES AND BOYCOTTS 105 
 
 contemplation or furtherance of a trade dispute be- 
 tween employers and workmen, shall not be in- 
 dictable as a conspiracy, if such act committed by 
 one person would not be punishable as a crime. 
 In other words, the English Parliament have gone 
 to the length of wiping out the whole doctrine of 
 conspiracy, and the act is so radical that I do not 
 see how (except in the cases specially excepted by 
 the act itself, such as riot or unlawful assembly, 
 or strikes by persons in breach of a contract of ser- 
 vice where such breach involves probable injury 
 to life or property) there can be any further ques- 
 tion before the English courts of a criminal trial of 
 any person in a dispute between labor and capital, 
 when the person would not have been triable had 
 there been no such thing as labor and capital in 
 the world. Whether such a statute would be even 
 constitutional in this country may be questionable. 
 It is the clearest kind of class legislation. 
 
 The Parnell Case. 
 
 For instance, the English courts still hold, as 
 they did in Mr. Parncll's case, that a combination 
 to incite tenants not to pay rent is a conspiracy, 
 and the indictment against Mr. Parnell defined 
 the word " boycott " in this case, by which means 
 the combination not to pay rent was brought about, 
 in the following words : " Threatening to cut off 
 from all social intercourse and communion, inter-
 
 io6 LABOR IN ITS RELATIONS TO LAW 
 
 course and dealings in the way of business, and to 
 shun as if affected Avith a malignant disease, and 
 hold up to public hatred and contempt, and sub- 
 ject to annoyance anci injury and loss, in the pur- 
 suit of his lawful occupation and industry, any 
 tenant who paid his rent," etc. Whether, by 
 statute, you can exempt capitalists and laborers in 
 an industrial dispute from liability for a thing 
 M'hich is criminal in a dispute between landlords 
 and tenants, without, in this country, enacting 
 unconstitutional class legislation, may fairly be 
 questioned. Under the decisions of the Western 
 and Southern States you clearly cannot ; and I 
 may say that it is probable that only in Massa- 
 chusetts and a few other States would such a statute 
 as the English statute now be constitutional. 
 
 American Statutes. 
 
 We have, indeed, many statutes on the subject, 
 but they do not go so far as this. Thus, in Penn- 
 sylvania, any laborers acting either as individuals, 
 or as members of a union, may refuse to work for 
 any person whenever in their opinion the wages 
 paid them are insufficient, or the treatment offen- 
 sive, or when continued labor by them would be 
 contrary to the rules of any union, and will not 
 be subject to prosecution for criminal conspiracy 
 in so doing. In New Jersey, persons lawfully and 
 peaceably persuading, advising, or encouraging
 
 STRIKES AND BOYCOTTS 107 
 
 other persons to enter into any combination for or 
 against leaving, or entering into, the employment 
 of other persons, are declared not guilty of criminal 
 conspiracy. And the same law substanti-ally ex- 
 ists in Colorado. So, in New York and Minnesota, 
 the orderly and peaceably assembling, or co-opera- 
 tion, of persons employed in any calling, trade, or 
 handicraft, for the puri)Ose of obtaining an advance 
 in the rate of wages, is not a conspiracy ; and Min- 
 nesota has gone nearly the full length of the Eng- 
 lish statute, except that they have avoided the ob- 
 jection of class legislation, by jiroviding that no 
 agreement of anybody, except to commit a felony, 
 arson, or burglary, amounts to a conspiracy, unless 
 some act besides such agreement be done to effect 
 this object by one of the i)arties. This, you will 
 note, is not quite the length of the English stat- 
 ute, because it does not wipe out the law of con- 
 spiracy, provided only some overt act be com- 
 mitted ; and this is the law of the United States 
 act against trusts, which I am coming to presently. 
 But the new codes of North Dakota and Oklahoma 
 do expressly rei)eal the common law of conspiracy. 
 Maryland, finally — and I should have noted this 
 before — has adopted the full English statute by an 
 act of 1888, and like it provides that nothing 
 in the statute shall affect the law relating to riot, 
 unlawful a.ssembly, Ijreach of the i)eace, or any 
 offence against any person or against ])roperty ;
 
 loS LABOR IN ITS RELATIONS TO LAW 
 
 but the exception is probably unimportant, as such 
 would be the implication anyhow. So far .as I 
 know the constitutionality of this statute has not 
 yet been decided in Maryland. 
 
 But now, on the other hand, we find the follow- 
 ing statutes in this country, which go the other 
 way. Thus, by express act of Oregon and Florida, 
 it is a criminal offence to conspire for the purpose 
 of preventing any person from procuring work, or 
 for the purpose of procuring the discharge of any 
 workman, and, in like manner — these statutes, by 
 the way, are universally fair to both sides — it is 
 forbidden for the employer to attempt to prevent 
 any person from obtaining employment whom he 
 has discharged. In this connection I would add 
 that many States already have adopted, and all 
 the States are rapidly adopting, statutes against 
 black-listing ; that is, against the attempt of an 
 employer who has discharged a workman for a 
 trade dispute, to prevent his getting work with any 
 other employer. In Michigan, any two or more 
 persons who shall combine for the purpose of wil- 
 fully or maliciously injuring another in his reputa- 
 tion, trade, or profession, by any means, or for the 
 purpose of maliciously compelling another to do, 
 or perform, any act against his will, or prevent 
 him from doing any lawful act, are guilty of crim- 
 inal conspiracy. This is an interesting statute, 
 fur, as you will see, it expressly re-enacts the
 
 STRIKES AND BOYCOTTS 109 
 
 whole common law of conspiracy and constitu- 
 tional right to freedom of contract. So, in Illi- 
 nois, if any two or more persons combine for the 
 purpose of depriving the possessor of property 
 of its lawful use, or of preventing, by threats or 
 any unlawful means, any person from being em- 
 ployed by, or obtaining emi)loyment from, such 
 possessor of property upon such terms as the party 
 concerned may agree upon, the persons offending 
 may be fined or sent to prison for six months ; 
 and, also, if they conspire, or the officers of any so- 
 ciety or corporation shall issue any circular as to 
 the government of or instruction to its members, 
 or any other persons or companies for the puri)ose 
 of establishing a boycott or a black-list, or shall 
 post or distribute any written notices with intent 
 to injure the i)erson, character, business, employ- 
 ment, or property of another, or to do any illegal 
 act in restraint of trade, or injurious to health, 
 morals, or justice, the persons may be imprisoncvl. 
 for five years and fined two thousand dollars. This 
 statute, also, is aimed at the employer and laborer 
 alike. So, in Texas, an unlawful assembly is de- 
 fined to be the meeting of three or more persons 
 with intent to aid each other by violence, or in any 
 other manner, either to commit an offence or ille- 
 gally to depriveany person of any right, or to dis- 
 turb him in the enjoyment thereof, or to prevent 
 his pursuing any labor, occupation, or employ-
 
 no LABOR IN ITS RELATIONS TO LAW 
 
 ment, or intimidate any person from following his 
 daily avocation, or to interfere in any manner 
 with the labor or employment of another. This 
 statute is broad enough certainly, and it is inter- 
 esting as coming from the State of Texas. There 
 are similar statutes in Georgia and Tennessee, the 
 latter being expressly aimed at the threatening to 
 discharge any employee for trading, or not trad- 
 ing, with any particular merchant or person ; and 
 that of Georgia specially prohibiting the hinder- 
 ing any person from taking an apprentice to learn 
 a trade; and, finally, the Legislature of Louisiana, 
 by resolution, July 12, 1894, made a kind oi pro- 
 niinciamento condemning the efforts of foreign 
 emissaries to disturb the public peace by foment- 
 ing discord between employers and employees at 
 a time " when there is no cause for discontent and 
 no grievances to be redressed," and commended 
 the railroad operatives of the State for repulsing 
 the overtures of such agitators and refusing to join 
 in the Chicago strike. 
 
 So much for the general view our legislatures 
 are taking of boycotts ; and, further, as to the spe- 
 cific acts declared illegal, we must note that Rhode 
 Island and Maine forbid the wilfully obstructing 
 the use of the property of another, or obstructing 
 another in the prosecution of his lawful business or 
 pursuits. Connecticut forbids the persistently fol- 
 lowing a person in a disorderly manner, or the
 
 STRIKES AND BOYCOTTS iii 
 
 threatening to injure his property, with intent to 
 intimidate; while New Hampshire makes it illegal 
 to insult or call offensive names to persons pass- 
 ing to, from, or about their lawful employment or 
 business. 
 
 Lock-outs. 
 
 The lock-out is the obverse of the strike, and 
 both are legal ; the black-list is the obverse of the 
 boycott, and both are illegal. Trades-unions and 
 combinations of employers or employees are also 
 legal, and become illegal only when falling under 
 the prohibition of such statutes as I have read, or 
 when aimed at the injury of the public, or a specif- 
 ic person, or class of persons, other than the party 
 to the dispute, or at the party to the dispute him- 
 self when the immediate intent is to injure, even 
 though the ultimate motive be to benefit the mem- 
 bers of the combination. Such is the American 
 law of the strike and l)oycott as it exists to-day. 
 It is a law essentially moral. If those of you who 
 are laborers feel any doubt as to whether ever 
 any proposed action of your men falls under the 
 above definition so as to be illegal, the best answer 
 I can give is, Ask your consciences. So stands 
 the law. 
 
 Discharge of Union Men. 
 
 We have two most interesting points left to dis- 
 cuss — the one. that of the emplo>niient of union
 
 112 LABOR IN ITS RELATIONS TO LAW 
 
 men already mentioned, the other that of the em- 
 ployment of Pinkerton men, or other mercenaries, 
 to jjrotect the employer or his property. As to 
 the first, I think I have already said that there are 
 in many States statutes forbidding the employer 
 to refuse to employ union men. Are such statutes 
 constitutional ? I can only tell you that a minor 
 court in Ohio has held they are, while the Supreme 
 Court of the State of Missouri, in a decision filed 
 only on the i8th of last June, has squarely declared 
 they are not. The Ohio case is probably of little au- 
 thority. An inferior court rarely declares a law un- 
 constitutional, and the judge gives no reasons ; but 
 the Missouri case is well considered and of great au- 
 thority. And, in connection with this, the Circuit 
 Court of the United States in the Reading Rail- 
 road case, where the question came up whether the 
 receiver of a Federal court had the right to en- 
 force a rule requiring that only non-union men 
 should be employed, although the then Attorney- 
 General of the United States, Mr. Olney, wrote a 
 letter, stating the view of the legal department of the 
 government, in whose charge the Reading Railroad 
 then was, the Court refused to annul the regulation 
 discriminating against union men. There the 
 matter rests. The statute exists in Massachusetts, 
 but has, I believe, not yet been passed on there 
 by the Supreme Court. It certainly would seem 
 that the Missouri court was right, and that if em-
 
 STRIKES AND BOYCOTTS 113 
 
 ployers of labor are to come to employ only mem- 
 bers of trades-unions, it would be better and more 
 in consonance with the principles of a free govern- 
 ment to them, to be persuaded, not coerced, by 
 the trades-unions themselves, rather than have the 
 government undertake it by law. The fact that 
 coercion is illegal is just why the union want a stat- 
 ute. But if laborers are willing individually to leave 
 work when non-union men are employed, they 
 will soon get their wish. Where, however, a la- 
 borer is under contract, it is of course constitutional 
 for a statute to forbid the employer from discharg- 
 ing him because he joins a labor-union, and the 
 courts would, doubtless, hold that this was not .suffi- 
 cient ground of discharge in the absence of any 
 statute. This, therefore, is a case where we begin 
 to see the advantages of a definite contract to the 
 laborer himself. 
 
 The Future of the Boycott. 
 
 Closing this subject, I have reserved one most 
 interesting case for the last, and a case which, 
 though decided in that instance in favor of the 
 employer, holds open, as 1 believe, a new pros- 
 pect of legal remedy to the laborer. The case is 
 that of Cote vs. Murphy, decided in Pennsylvania 
 in 1S93. This was a case where the workmen 
 engaged in building-trades had entered into a law- 
 ful combination to advance wages by reducing the 
 8
 
 114 LABOR IN ITS RELATIONS TO LAW 
 
 hours of labor. Lawful, that is, not only as I be- 
 lieve, by the common law, but by that statute of 
 Pennsylvania to which I have referred. The de- 
 fendants were members of an association of em- 
 ployers which, by a combination not so made law- 
 ful by the statute, because it was a combination of 
 employers, agreed among themselves not to sell 
 material to contractors who conceded the advance 
 of wages, and induced other dealers not to furnish 
 such contractors with materials. A certain builder 
 — that is, a capitalist who sold materials to the 
 employers of labor — who had met the demands of 
 the strikers, brought suit against the combining 
 employers for refusing to sell him material, so that 
 he was not able to procure all the building mate- 
 rial he desired. Here was a case where there was 
 a combination of laborers, hgal by statute, a com- 
 bination of employers, not legal by statute, and a 
 capitalist suing the employers' combination be- 
 cause they boycotted him for being in league with 
 the striking laborers. The court held, in a most 
 elaborate opinion, first, that they would not de- 
 cide whether the Pennsylvania statute exempting 
 employees from the penalties of unlawful combi- 
 nation was unconstitutional as being class legisla- 
 tion, or whether the scope of the statute should be 
 so enlarged by its express words as to include with- 
 in its protection all those interested in the same 
 subject of legislation, that is, employers as well as
 
 STRIKES AND BOYCOTTS 115 
 
 laborers. They so found it unnecessary to pass on 
 the constitutionality of the statute, because they 
 said the strikers having combined against the 
 employers, the employers had a legal right to com- 
 bine to resist them ; that the elements of an un- 
 lawful combination, the intent to restrain trade 
 for greed of profit to themselves, or the intent to 
 do harm toward the strikers specifically, were ab- 
 sent, but the combination of employers was merely 
 done to resist a combination of employees, and 
 therefore the plaintiff could not recover for being 
 boycotted. 
 
 Now, suppose we turn this reasoning the other 
 way. Suppose all employers combine to regulate 
 the prices of wages. Suppose, then, all their em- 
 ployees combine against such employers ; then, un- 
 der the decision of this Pennsylvania case, you 
 will have a justification of their action, which may 
 even go to the length of sustaining the sympa- 
 thetic boycott. At all events it will establish as 
 a legal principle that principle of collective bar- 
 gaining between associations legally organized and 
 l)ersonally responsible on both sides, which, as I 
 believe, holds the future of the peace of labor. 
 
 Pinkerton Men. 
 
 I find I have forgotten the Pinkerton men. 
 Well, a few States have begun to pass laws making 
 their employment .1 penal offence ; but a man has
 
 Ii6 LABOR IN ITS RELATIONS TO LAW 
 
 a constitutional right to protect his own property. 
 Has he not a constitutional right to pay others to 
 do so ? Remember, he runs great risks in doing 
 so, for the moment any one of his Pinkerton men 
 transgresses his rights of mere self-defence, every 
 employer may become liable for damages, or even 
 criminally. 
 
 The two statutes so far passed against them are 
 in Missouri and Wyoming. The Missouri statute 
 declares it unlawful for any person, etc., to bring, 
 or import, into the State any person or body of 
 persons for the purpose of discharging the duties 
 usually devolving upon police ofificers or deputy- 
 sheriffs in the protection of property, and no sher- 
 iff shall appoint a deputy who is not a bona-fide 
 resident of this State. 
 
 Now, there is no constitutional objection to this 
 statute, except that which arises from the general 
 rights of United States citizens. The prohibition, 
 that is, is not against employing Pinkerton men, 
 but against employing Pinkerton men who are 
 not citizens of Missouri. 
 
 The constitution of Wyoming provides that no 
 armed force or detective agency, or body of men, 
 shall ever be brought into the State for the sup- 
 pression of domestic violence, except upon the ap- 
 plication of the Legislature, or the executive when 
 the Legislature cannot be convened. It does not 
 say who is not to bring them in, and by its terms
 
 STRIKES AND BOYCOTTS 117 
 
 would seem tu apply even tu the national govern- 
 ment. If so, it is in conflict with the Federal 
 Constitution ; it would have precluded President 
 Cleveland's action in the Chicago riots. The 
 employment of Pinkerton men is, doubtless, a 
 great evil, and has seemed to many students of 
 the American system to be the most sinister 
 development that has happened in recent years 
 of the republic. But the remedy would seem 
 rather to make their employment unnecessary, 
 by the States themselves protecting all classes of 
 persons in the enjoyment of their constitutional 
 rights, a republican government, and the law of 
 the land.
 
 IV 
 
 FORECAST OF THE FUTURE 
 
 We may now come to consider the future of the 
 labor relation, the remedies and resources of both 
 sides, but particularly of labor, in what has been 
 called the warfare between labor and capital, or in 
 bettering its condition without warfare. The 
 latter is the more congenial view of the subject, 
 for, as one of tlie objects of all civilized govern- 
 ment is to prevent warfare and violence, so we 
 may hope that the object of a higher civilization 
 will be to prevent even that kind of warfare which 
 consists in opposition and animosity as well as 
 physical violence. 
 
 Labor Injunctions. 
 
 The side adverse to labor we may consider very 
 briefly. The most notable development of recent 
 years is the tendency, both on the part of the 
 public and employers, to resort to the peculiar 
 process of courts of equity to enforce what they 
 deem proper conduct on the part of the employees. 
 I wish I had time to go into this matter here at
 
 FORECAST OF THE FUTURE 119 
 
 length.' The subject may be summari/ed in the 
 following statements : Our courts of equity to- 
 day represent the old power of the king in compel- 
 ling the peace of the realm, and in ordering his 
 subjects to do what the chancellor deemed the 
 right thing among themselves. Law, as distin- 
 guished from equity, will never interfere among 
 individuals or even on behalf of the State, to en- 
 force a contract, to make a man, or set of men, 
 do anything, and the peculiar power of proceeding 
 in ecjuity rests largely on the fact that the chancel- 
 lor could order people not only to keep the peace 
 and abstain from violence, but to perform any 
 contract or any obligation which the laws of the 
 realm imposed either as toward other subjects or 
 toward the sovereign. This power of enforcing 
 action, what we call specific performance in the 
 law, is a very great one. It is made effectual by 
 what is called process of contempt ; that is, any 
 person failing to perform the order of tlie court of 
 chancery could be summarily imprisoned by order 
 of the judge without jury trial, and without indict- 
 ment in ordinary form, until such time as he 
 actually did what the court required him to do. 
 
 Recent Extension of Court Interference. 
 
 Now, this special subject of the courts of equity 
 
 has received a great extension in this country in 
 
 ' See Political Science Quarterly, June, 1895 : " The 
 Modern Use of Injunctions," by F. J. Stimson.
 
 I20 LABOR IN ITS RELATIONS TO LAW 
 
 the last few years, and that in a very pecuHar way. ; 
 and it is another example of the danger of passing 
 extraordinary laws which interfere in an nnusual 
 way with the bills of rights; for, in old times, 
 the English chancellor, who was the king's 
 right-hand executive officer (and courts of equity 
 and courts of chancery are, as you understand, 
 the same thing), in the time of great disorder 
 which ensued upon the early civil wars in Eng- 
 land, would interfere to protect private citizens 
 against oppression, to protect the weaker side 
 against violence, and to compel all subjects to pre- 
 serve the peace of the kingdom. He would, for 
 instance, order people, against whom the writ was 
 claimed, not to commit riots or destruction of 
 property, nor to commit personal injuries, or even 
 crimes, and this summary jurisdiction, .say the old 
 writers, was in those days necessary to the peace 
 of the realm. But in so far as the jurisdiction 
 went to prohibit criminal offences and punish 
 offenders summarily by the order of the chancellor, 
 it was always extraordinary ; shared also by the 
 notorious court of Star Chamber, it led to great 
 abuses, as by it obnoxious persons, or persons out 
 of favor with the ruling party, could be arrested, 
 tried, and punished, without any of the ordinary 
 safe-guards of warrant, arrest, indictment, jury trial, 
 obtaining evidence, and fixed rules of punishment 
 which the English Constitution required. There-
 
 FORECAST OF THE FUTURE 121 
 
 fore, this criminal jurisdiction of the court of 
 chancery fell into disfavor, and, finally, into disuse. 
 It was entirely gone by the time of the Revolution, 
 if not by the time of Queen Elizabeth, and has 
 never, in England, been revived since. The only 
 part of the old equity jurisdiction which was left 
 was that concerning, specifically, property rights; 
 that is, where an injury to property was appre- 
 hended, for wliich a suit at law for damages would 
 be no remedy, or where a man refused to perform 
 a property contract for breach of which the other 
 party had no equity remedy by damages ; in these 
 cases only could this extraordinary ])o\vcr of chan- 
 cery still be invoked. Constantly from that time 
 until now, the English court of chancery h;ts re- 
 fused to issue an injunction .solely against commit- 
 ting a crime ; and during the same period grew up 
 the doctrine that it would not enforce contracts for 
 personal labor. This is the important matter I 
 referred to in the last lecture — that you may obtain 
 the actual performance of a contract by bringing 
 into chancery the party refusing to perform it in 
 all cases of property right, in all cases except 
 where the contract is merely for personal service. 
 These two principles, that chancery will not en- 
 join against criminal offences, and will not en- 
 force contracts for labor and personal services, are 
 of the very greatest importance. 
 
 We started our courts of chancery in this coun-
 
 122 LABOR IN ITS RELATIONS TO LAW 
 
 try, giving them the same jurisdiction they had 
 in England. In fact the Federal law expressly 
 states that they shall have such jurisdiction as the 
 English courts of chancery had in Lord Eldon's 
 time, about the beginning of this century. There- 
 fore, as I hold, our courts of equity too may not 
 interfere actively to prevent or punish a criminal 
 offence as such, and may not enforce a contract of 
 labor or personal service. But the property right 
 remained; that is, you could go into chancery to 
 prevent a man, or set of men, from committing 
 a definite injury to property, and particularly 
 when the injury was of such sort, or consisted in 
 such an indefinite series of injurious acts by an in- 
 definite number of people, that the common-law 
 remedy for damages was not adequate. Now, this 
 is a valuable jurisdiction, and, so far, it is well 
 enough. But in 18S7 was passed the United 
 States law regulating interstate commerce, and in 
 1890 the United States law against trusts. These 
 extraordinary statutes were meant to be in the in- 
 terest of the people. They attempted both to 
 prevent combinations in restraint of trade, to 
 raise prices, etc., and combinations to interfere 
 with interstate commerce. But the extraordinary 
 feature of them was certain sections which gave, 
 as it were, a certain property right to the United 
 States in subjects of interstate commerce, and ex- 
 pres.sly authorized the United States to go into a
 
 FOKIiCAST OF TUB FUTURE 133 
 
 court of chancery and i:)roceed, by injunction, 
 against men who interfered with trade between 
 the States. Now, that part of the act whicli was 
 aimed to protect the public mainly, failed. As 
 you know, the reorganized sugar trust escaped the 
 anti-trust law entirely for the reason that being 
 now a cori)oration established in one or more 
 States merely for the purpose of refining sugar, the 
 Supreme Court of the United States held that 
 they could not assume that the sugar they made 
 was to be the subject of interstate commerce, and 
 therefore the sugar trust did not come under the 
 statutes. But, on the other hand, in the great 
 business of railways, and also of stevedores, sail- 
 ors, wharf-laborers, and certain other cla.sses of 
 lal)orers who were employed in handling goods 
 designed for shipment to another State, these stat- 
 utes gave express power, and, in fact, directed the 
 United States, through its Attorney-General and 
 District Attornej-s, to interfere actively by the 
 strong arm of a court of chancery, and restrain 
 any men, or body of men, who interfered with this, 
 as it were, property right. Before that the gov- 
 ernment could, at most, only have been held to 
 have such property right in the United States 
 mails ; but the practical effect — and I am not now 
 speaking technically — of these statutes was to e.\- 
 tend such property right to any articles which 
 were, or were intended, to become the subjects of
 
 124 LABOR IN ITS RELATIONS TO LAW 
 
 interstate commerce. This actually put the whole 
 transportation interest of the country under direct 
 charge of the government, Avith the mandate to 
 the government to interfere and see that no 
 combination was made against such transporta- 
 tion. 
 
 As a result of this, such combinations, strikes, 
 or boycotts became an unlawful conspiracy ; for 
 that was now unlawful which, before the statute, 
 had not been ; and under the definition of " con- 
 spiracy " I gave you in my last lecture, you will 
 easily see that all such combinations fell at once 
 under what we called the first branch of con- 
 spiracy ; hence, tlie omnibus injunctions levelled 
 against not only the actual offender, Debs, or 
 others, but against any men or class of men, 
 though unnamed in the bill and unknown, who 
 might after interfere with such transportation ; and 
 hence, under the contempt process, they were ar- 
 rested by United States Marshals, brought into 
 court, and imprisoned without jury trial, and in 
 some cases long after the danger or emergency 
 which justified the injunction had pa.ssed. 
 
 Now, under the two laws I have mentioned, 
 there is no way of avoiding this except by passing 
 new laws. As the Supreme Court has just held, 
 the sole question is one of jurisdiction ; and if the 
 persons proceeded against were properly before a 
 court of equity, and the court had jurisdiction of
 
 FORECAST OF THE FUTURE 125 
 
 the subject-matter, the power to punish them by 
 contempt follows as a matter of course. 
 
 Objections to Equity Government. 
 
 There seem to me to be two objections to this ; 
 I mean objections on broad ground of expediency 
 and right, and the future safetyof the government, 
 not, of course, technical objections of law. One 
 is, that as we now stand, any laborer, or class of 
 laborers, though he has received no notice of a 
 suit in court, may find, any day, that an ordinary 
 trespass or neglect of duty made by him will sub- 
 ject him to a criminal punishment without in- 
 dictment, jury trial, or certain laws defining the 
 extent of the punishment ; he may possibly find 
 himself in jail without a trial, though he him- 
 self has committed no overt act, but merely by 
 being a member of a trades-union or combina- 
 tion, some of whom have committed an overt act 
 of trespass, or, j^erhaps, even solely because the pur- 
 pose of such combination or union has been by a 
 strike or boycott directly, or indirectly, to interfere 
 with transportation. This is one objection. The 
 other rests on broader ground still. As you know, 
 our Constitution provides that the executive and 
 jndicial branches of government shall be forever 
 distinct. This is not only because the judicial 
 branch is in no sense competent to perform e.vecu- 
 tive functions, but, because from the very nature of
 
 126 LABOR IN ITS RELATIONS TO LAW 
 
 their judicial duties, they ought not to become ac- 
 tive participants in the important events which 
 they have to judge ; and there is one other thing 
 still which increases this new executive power very 
 much more — that is the peculiar process of putting 
 corporations, railroads and so on, in the hands of 
 receivers when they cannot pay their debts. As 
 you know, in modern times whenever a corpora- 
 tion finds it cannot pay its debts, it rushes into a 
 court of equity and gets some person — usually one 
 of its own officers — appointed receiver, and there- 
 upon all suits and claims against the company are 
 suspended. Corporations do this for very much 
 the same reasons, and with very much the same re- 
 sults, as when an individual sought the sanctuary 
 of a church in mediaeval times. In the sanctuary 
 of the receivership the corporation cannot be 
 touched. But the labor result of it is purely for- 
 tuitous, one of those accidental consequences which 
 shows again that you never know Avhere the result 
 of an extraordinary law or remedy is going to end. 
 The technical doctrine of a court of equity is that 
 the receiver is the officer of the court. As such, an 
 interference with a railroad in his hands is an in- 
 terference with the order of the court of equity, 
 which, at once justifies all this injunction and con- 
 tempt process of which I have spoken. During 
 the last few yeai^s a vast proportion of our railroads 
 — possibly one-third in mileage — went into the
 
 FORECAST OF THE FUTURE 127 
 
 hands of receivers, that is, into the hands of the 
 courts. They were run by the judicial branch of 
 government. Any interference with their running 
 became a contempt of court, and, consequently, 
 a strike npon a railroad in the hands of a receiver 
 might subject the strikers to this extraordinary 
 punishment, when a strike against an ordinary 
 railroad would not have done so. This receiver- 
 ship process, with the Interstate Commerce and 
 the Anti-Trust Laws, are the principal causes of 
 this inniiense extension of the function of the 
 Federal courts in the last few years, so that they 
 have practically found themselves part of the execu- 
 tive of the government ; and here, I think, is the 
 greatest danger of all. Physically and morally our 
 courts ought not to be required to stand such a 
 strain. In fact their power in so doing is far 
 greater than that of the executive itself, for the 
 reason that the executive is subject to the habeas 
 corpus act, and the ordinary restrictions of crimi- 
 nal process, but the equity courts, although the 
 punishment, of course, is never extreme, are not. 
 They, or their appellate courts, must themselves 
 judge the propriety of their own acts. We all 
 want order maintained throughout the country, 
 and most of us, doubtless, commended Mr. 
 Cleveland for his prompt and forcible action in 
 the Chicago strike ; Imt if such nction had been 
 expressly ba.sed upon the ground that the trans-
 
 128 LABOR IN ITS RELATIONS TO LAW 
 
 portation of the mails was being interfered with, 
 that riots and crimes were being committed which 
 made, practically, a state of insurrection, so that the 
 republican form of government in certain locali- 
 ties was being threatened, rather than upon the 
 ground so much less impressive to the public mind 
 that certain equity processes of Federal courts were 
 not being executed ; and then if all the oflenders, 
 whether arrested by troops or by deputy-marshals, 
 had been brought before the Federal grand jury, 
 indicted and tried by a jury in the ordinary way, 
 I cannot but think that the lesson to the people 
 would have been better given, and certain great 
 dangers in the future avoided ; for the govern- 
 ment, and especially the judicial branch of the 
 government, must not even appear to take sides in 
 this labor question. 
 
 So much for these extreme remedies. As to pri- 
 vate employers, they may safely be left to protect 
 themselves by the remedies now open to them. It 
 does not seem to me that their side is in any great 
 danger at present, except perhaps from hasty and 
 unusual legislation, Avhich I have so often spoken 
 of in these lectures. Under that growth of the 
 modern doctrine, which I have tried to describe, 
 they are free to combine when combination is rea- 
 sonable and possible, and will doubtless do so 
 should it become necessary.
 
 FORECAST OF THE FUTURE 129 
 
 Co-operation. 
 
 Turning now to the labor side. The first of the 
 remedies commonly suggested to us is that of co- 
 operation or profit-sharing. I wish it could be 
 said that the progress of this in the past had been 
 such as to justify a feeling that this might be the 
 solution ; but in the first place, you must note that 
 under the system of the much-abused corporation 
 it.self, it has always been possible for the laborer to 
 become a partner with capital in his own employ- 
 ment if he chooses. It is rather singular that at- 
 tention has been so rarely drawn to the fact that 
 in any mill or industry to-day, for they are nearly 
 all corporations, it is perfectly possible for an em- 
 ployee to buy stock, and therefore get his share in 
 the extraordinary profits, if any there be. As we 
 know, the laborers never take advantage of it. 
 Why do they not ? Probably the answer must be 
 simply that as capitalists they are discontented 
 with the ordinary returns which capital brings its 
 possessor. It was distressing, the eagerness with 
 which the laboring cla.sses rushed into the benefit 
 societies of a few years ago, and distressing the 
 amount of hard-earned savings they must have lost 
 in these concerns simply because they promised ten 
 or twenty per cent., or something far above the 
 proper return upon capital. But the fact is that 
 the laborer is not induced to save money for the 
 purpose of getting the motlest return which mod- 
 9
 
 I30 LABOR IN ITS RELATIONS TO LAW 
 
 ern conditions allow to capital. This is natural 
 enough when we consider the amount of savings 
 that would be needed to give a skilled laborer, in 
 dividends, the same amount per year for the last 
 years of his life that he earned when in his prime, 
 'i'he normal return upon money put out at interest 
 is probably not over four per cent, when we allow 
 for losses ; but taking it higher than this, regard- 
 ing it as a dividend, it is certainly not over five 
 per cent. Counting bad investments with good, 
 that man is very fortunate who gets an average of 
 five per cent, dividends upon all his stocks. Now, 
 if I assume a skilled industrial laborer to make 
 ^600 a year during the best years of his life in 
 wages, it requires an investment of $12,000 to 
 realize that sum, which is precisely the full wages 
 for twenty years. How can the laborer hope to 
 save any such capital as that ? We cannot blame 
 him for not being attracted to scrimp and save for 
 many years for the sake of getting some trifling 
 fifty or one hundred dollars yearly return as a cap- 
 italist — too little for a living, and acquired at too 
 much sacrifice to be an inducement as pocket- 
 money. 
 
 Profit-Sharing. 
 
 There is more hope in actual profit-sharing 
 plans, more hope, perhaps, in co-operation. The 
 reason of this is that here the laborer becomes.
 
 FORECAST OF THE FUTURE 131 
 
 not the ordinary small investor of capital, but an 
 actual i)artner in the possible extraordinary profits 
 of his business. Forty years ago there was, doul^t- 
 less, great hope in this direction, and many of our 
 States have elaborate statutes authorizing co-opera- 
 tive and profit-sharing corporations ; but they have 
 not been taken advantage of so freipiently as we 
 could wish, and, moreover, the event shows that the 
 common course of a successful co-operative cor- 
 ])oration is to develop into an ordinary stock com- 
 pany, owned mainly by two or three individuals 
 whose greater ability or greater acquisitive powers 
 have enabled them to make a success of the busi- 
 ness. I by no means wish to dismiss co-operation 
 as an idle dream, I only say that I fear we cannot 
 yet call it a panacea for labor troubles. 
 
 True Demand of Unions. 
 
 The fact is that what the laborer really wants, 
 and what the trades-unions in I^ngland have at 
 last got to the point of admitting that he wants, 
 is not i^rofits as a capitalist, but a greater share of 
 the profits of industry as jiart of his own wages. 
 This is the plain Knglish of it, and this we should 
 fairly recognize. In other words, they desire a 
 ])artncrship with capital, not in the sense of being 
 capitalists to an infinitesimal extent themselves, 
 but that it shotild be recognized either by fact or 
 by law that labor and capital working together 
 
 L
 
 132 LABOR IN ITS RELATIONS TO LAW 
 
 are, in effect, partners. Both are to be paid as part- 
 ners out of the output of their industry, out of 
 the realized profits, not out of any mythical wages 
 fund which represents only that sum which will 
 support all the persons in any one year seeking la- 
 bor in the country at the lowest living rates. 
 Rightly or wrongly, this is the demand of labor, 
 and it is for the future to determine how far it can 
 be safely and fairly recognized. Perhaps, at pres- 
 ent, the trades-unions have only got to a point of 
 simply exacting increased wages, without regard to 
 the industry. Mr. Spyers, who wrote the last 
 English book on the labor question, a summary of 
 the results of the Royal Commission of Labor of 
 1893, tells us, "It is clear that the natural attitude 
 of trades-unions toward profit-sharing is one of 
 hostility. Being, essentially, organizations for ap- 
 preciating wages at the expense of profits, they 
 could hardly be expected to welcome with cor- 
 diality a scheme which gives the workman an in- 
 terest in the integrity of the profit-fund." But, 
 whichever labor desires, be it called increased 
 wages or a share in the profits, how is it to be 
 brought about ? 
 
 " Collective Bargaining." 
 
 To this we answer, by combination of labor 
 which will enable them to use what I have called 
 collective bargaining. There is no doubt of this,
 
 FORECAST OF THE FUTURE 133 
 
 and I for one should be glad to see the bulk of 
 the industrial laborers of the country organized in 
 definite unions, and conduct their interests in this 
 way. Most progressive employers are now begin- 
 ning to find the advantage of having a definite 
 and responsible body to deal with, so that, when 
 they make an agreement with them, it amounts 
 to something, rather than with irresponsible work- 
 men. Most employers are more and more will- 
 ing to practically arbitrate wherever they can find 
 such a responsible body. The difficulty to-day is 
 quite as much in getting the laborers to organize 
 into such definite unions, with the further diffi- 
 culty that the laborers, when they have so organ- 
 ized, find it difficult to enforce their own rules, 
 and, consequently, any contract or compromise 
 they may make even as against their own members. 
 The evidence of the English Commission was fiill 
 of instances where men who have endured the 
 miseries of a strike for months at a time without 
 a murmur, and in perfect obedience to their offi- 
 cials, yet, on the most trilling grounds, refiised to 
 endorse the terms which those officials had ar- 
 ranged with the employers. It is to combat this 
 difficulty that many unions make strict rules 
 against members leaving their employment with- 
 out the sanction of their union, the offence being 
 punishable by expulsion. How can the employ- 
 ers bargain or arbitrate with employees, even with
 
 134 LABOR IN ITS RELATIONS TO LAW 
 
 the unions, when the members of the unions arc 
 not true to the union itself? In the English 
 strike of the blast furnace men, after the union 
 had agreed upon a satisfactory sliding scale of 
 wages, the engine-men and crane-men left the 
 association and set up an independent organiza- 
 tion of their own. As was pointed out by Mr. 
 Bell before the English Commission of Labor, it 
 would be impossible to bargain with the unions if 
 this sort of thing happened often, for one cannot 
 negotiate with a body that one cannot grasp. 
 
 The usual method the union employs for con- 
 trolling these members is the beneficiary fund, in 
 which they all have an interest, and which they 
 are liable to lose if expelled from the union. 
 The English statute, you will remember, while 
 recognizing the legality of trades-unions, makes a 
 special exception that the contracts made between 
 them and their members cannot be enforced by 
 either side in the courts. This was done at the 
 request of the unions, who feared endless litigation 
 with their own members, for their beneficiary 
 funds are not only an insurance to the members 
 (meeting that very question of their old age 
 which we discussed a moment ago) and a guaran- 
 tee both to the laborer and the employer, that 
 any collective bargaining made by the unions will 
 be carried out in times of industrial peace, but a 
 fund for strikes in times of labor war. Now, labor
 
 FORECAST OF THE FUTURE 135 
 
 leaders tell me that they regard this last function 
 as the highest purpose of the fund. In other 
 words, they desire to be at liberty to exhaust the 
 whole accumulated fund in a strike, if necessary, 
 in spite of all the individual contracts they may 
 have with the members who have contributed to 
 it for death benefits, insurance in times of illness, 
 support while out of work, etc. Of course, if the 
 union with its fund were legalized under any cor- 
 poration law, such an entire application of the 
 fund to strikes might be a breach of contract, and 
 would certainly be a breach of trust from which 
 the officers of the trades-union could be restrained 
 at suit of any individual member. The principle 
 of all labor combinations up to date has been to 
 secure the greatest possible amount of power by 
 lawful methods, or even by unlawful combinations, 
 while not assuming any responsil)ility whatever, 
 either to employers or to their own members. 
 Now, I am well aware that it is, at first sight, an 
 attractive position to labor to be in the position 
 of a guerrilla army, which, while making a simul- 
 taneous attack, can dissolve at the moment of any 
 defeat, and scatter, so that while it may sometimes 
 win, it can never lose. Nevertheless, I believe 
 these advantages are superficial, and the true in- 
 terest of labor lies the other way. This is. after 
 all, like the position of slaves or savages. No 
 contracts can be enforced against them ; they can
 
 136 LABOR IN ITS RELATIONS TO LAW 
 
 scatter in the woods and do individual damage 
 when as an army they have yielded. Never- 
 theless, in the long run, while their outbreaks 
 are suppressed, they cannot, by peaceful means, 
 gain much for themselves as a class. I have yet 
 to learn that it is a blessing to a free citizen, or a 
 free body of citizens, to be unable to make an 
 agreement with the persons with whom they deal. 
 Provided only the civilization of a country be di- 
 versified enough to give a chance for every man, 
 the true power of labor comes from its being in 
 a position to dictate agreements for wages and 
 times of labor, which the other side has the power 
 to make ; and it has not such power with persons 
 practically incapable of contract. And this, I 
 think, is true in modern times, even if we admit 
 that there is a mass of unemployed ready to come 
 in at any price, for that very power of responsi- 
 ble combination enables the workman in skilled 
 trades — and nowadays all trades are skilled — to 
 put up a barrier against such outside parties by 
 being, as a body, on terms of contract with their 
 own employers, far more effective than under a 
 system of every man for himself. 
 
 Remedies open to Labor. 
 
 If you agree with me that we are to have com- 
 l)inations of labor which shall bargain collectiv'ely 
 with capital, what weapon shall they have for en-
 
 FORECAST OF THE FUTURE 137 
 
 forcing their demands? I answer, if every coml)i- 
 nation be really successful, that is, if it include the 
 bulk of workmen in a given trade, by strikes — not 
 by boycotts, except of the merely persuasive kind, 
 and addressed primarily to members of their par- 
 ty, that is, to other laborers. The fact that the 
 striking workmen are to be supported during 
 the strikeout of union funds will ultimately prove 
 a sufficient guaranty at least oi priinx facie justifia- 
 ble cause ; and we must not forget that there is 
 one other motive of a union strike which is per- 
 fectly legitimate ; that is, as was well pointed out 
 in the evidence before the Labor Commission, in 
 order to show that a union is strong enough to strike 
 effectively, both for the purpose of convincing the 
 employer tliat the strike is dangerous to him and 
 that the labor body striking is one of suflicient im- 
 l)ortance to deal with ; and for the i)urpose of 
 convincing the employee tiiat tlie union has grown 
 sufficiently to make it pay for them to sacrifice 
 part of their earnings for its support. There 
 should, of course, be a reasonable ground for a 
 strike, but if the union approach the employers 
 with a definite and reasonable request, and a 
 steady determination not to take "no" for an 
 answer, it will at once gain the confidence of the 
 workmen ; and if it convinces the employers that 
 it has gained the confidence of the workmen, the 
 battle is already half won. The evidence before
 
 1 38 LABOR IN ITS RELATIONS TO LAW 
 
 the English Commission showed that employers 
 seldom fight, or care to fight, against an organiza- 
 tion which they feel really has the unqualified sup- 
 port of its members. Industrial warfare, there- 
 fore, is sometimes necessary to prove the right of a 
 union to its existence. Hence, strikes, and hence, 
 too, the reason that the weaker and younger the 
 union, the more strikes it is bound to declare. 
 But the reason of it is, and the facts in England 
 at least show, that as unions grow and become 
 generally effective and recognized, strikes decrease 
 in number. They are then in a position not only 
 to demand arbitration, but really to get that best 
 kind of arbitration, which consists in the meeting 
 of the employers and the employed, both with 
 full power to settle the question, and with the in- 
 tent to do so in a reasonable way. 
 
 This brings us to the question of the settling of 
 strikes. In so far as they come to actual disorder, 
 I have expressed it as my opinion that they should 
 be settled only by the ordinary coarse of the 
 criminal law. In so far as a boycott is a conspir- 
 acy to do a wrongful thing, or to wrong a defi- 
 nite person, I think the law of criminal conspiracy 
 is in this country adequate ; but the greater and 
 higher questions, where no such wrong is com- 
 mitted on both sides, where there is neither con- 
 spiracy, disorder, or intimidation, how are these 
 real issues to be settled ?
 
 FORECAST OF THE FUTURE 139 
 
 Arbitration and Conciliation. 
 
 Much has been said of courts and arbitration, 
 and here again I have no desire to minimize their 
 vahie. I believe furtlier laws should be passed to 
 establish them, and I ho[)e such laws will be taken 
 advantage of. Seven or eight of our States already 
 have elaborate laws embodying not only a state 
 board of arbitration and conciliation, but allowing 
 the* creation of private boards to settle special con- 
 troversies in any particular trade or locality. It 
 has been found by experience that a permanent 
 State board is not a good body to settle trade dis- 
 putes in a great bulk of the cases. Modern indus- 
 tries are subject both to local conditions and pe- 
 culiarities of their special product and of the 
 market for it. In the Haverhill shoe strike last 
 winter we were told that the conditions of the 
 Haverhill trade were so peculiar that even a body 
 familiar with the general shoe industry, or with 
 the shoe industry of other places, would be for 
 that very reason incompetent to settle the ques- 
 tions which arose at Haverhill. That part of arbi- 
 tration statutes, therefore, which provides for the 
 mutual creation of a board chosen from among per- 
 sons conversant with the particular industry is a 
 most valuable one. And this brings us to the main 
 point about arbitration, which is, that it is, in its 
 essence, vohmtary. 1 think I may state broadly 
 that involuntary arbitration is entirely out of the
 
 140 LABOR IN ITS RELATIONS TO LAW 
 
 question. If the government choose, it may make 
 arbitration compulsory upon corporations, which 
 are its creatures ; so, the United States Govern- 
 ment, having half taken over the railroads under 
 the Interstate Commerce Act, might wholly take 
 them under guardianship and pass such a law as to 
 them. There is already a general act providing 
 for voluntary arbitration, and authorizing the 
 President to appoint a committee of arbitrators to 
 investigate and report. It was under this statute 
 that Mr. Cleveland acted at the time of the Chi- 
 cago riots. Mr. Wright, the United States Com- 
 missioner of Labor, has recently gone very far in 
 the direction of recommending a statute providing 
 even for involuntary arbitration, at least in the 
 case of railroads. Nevertheless, until the Federal 
 Government is willing to undertake to run the 
 railroads of the country, and subject our already 
 over-strained party system to the tremendous re- 
 sponsibility and temptation that would be imposed 
 upon any administration by so enormously increas- 
 ing the civil-service list, I believe such statutes 
 would be unwise, probably unconstitutional, and 
 certainly unjust, for the reason that they would be 
 one-sided. The laborers themselves are pretty 
 well agreed that they do not want involuntary ar- 
 bitration, and thev, for their part, will not submit 
 to it. Moreover, the word "arbitration" be- 
 comes a misnomer when applied to an involuntary
 
 FORECAST OV THE FUTURE 141 
 
 proceeding. Such a proceeding differs in no par- 
 ticular from an ordinary suit in court. You are 
 simply establishing a new and peculiar court with 
 extraordinary powers which, uliiniately, by practice 
 and the precedent of its own decisions, would dif- 
 fer in no particular from any court now existing. 
 There is no advantage, therefore, in involuntary 
 arbitration ; but voluntary arbitration, and, par- 
 ticularly, voluntary conciliation and investigation 
 of trade disputes, is certainly a wise thing, and we 
 can only hope that its use will increase in the 
 future. But, after all, the best remedy is not in the 
 arbitration, not even the conciliation of any out- 
 side party, but the fair bargaining of both sides 
 coming together with mutual power and mutual 
 responsibility. They may, of themselves, establish, 
 as has fre([uently been done in England, special 
 commissions of persons in the trade, who may ar- 
 bitrate between them when they di.sagree ; and 
 this remedy when sanctioned, not created, by the 
 State, more elastic and intelligent than any gov- 
 ernmental creation, is the best board of arbitration 
 after all. I believe that with the developments 
 and improvements I have suggested in the collec- 
 tive labor relation, we shall find, as they have in 
 England, that much of the need for artificial aibi- 
 tration has gone by.
 
 142 LABOR IN ITS RELATIONS TO LAW 
 
 Trusts. 
 
 As to the question of trusts, the main interest of 
 the laborer in them is that of the consumer. So 
 far as trusts affect the employment relation, I am 
 inclined to think that any powerful monopoly is, 
 on the whole, injurious. Anything which so 
 greatly extends the power of one side in that col- 
 lective bargaining we have so often mentioned, 
 strengthens him as against the other. It is easy 
 to see, for instance, assuming all the cotton-mills 
 in the country to be in one trust, how their power 
 of black-listing could be infinitely extended. 
 Black-listing, the prevention of laborers who have 
 once struck from getting employment of other 
 employers, may now be forbidden by law, and 
 it is so forbidden in many States. If all the em- 
 ployers were one body, there would be no possible 
 legal method of preventing this. Black-listing 
 would cease to be boycotting, but merely the re- 
 fusal of the employer to re -employ an employee 
 who has voluntarily left his service by strike ; and 
 despite the argument that may lie in the view so 
 well expressed by Professor Jenks, it seems to me 
 that, on the whole, the effect of monopolies is de- 
 cidedly to limit the demand for labor. If all of a 
 trade is in a monopoly, only that labor will be em- 
 ployed which is really necessary for the amount of 
 output, which is really necessary or profitable. 
 One great advantage to the laborer of independent
 
 FORECAST OF THE FUTURE 143 
 
 individualistic industries is that everybody is con- 
 tinually emharkinp^ in enterprises in the hope of 
 making a profit which may never be realized, but 
 the laborer duly gets his wages therefor. I think 
 I can illustrate what I mean by a clear example. 
 
 The Baring Failure. 
 
 1 have been told in I^ngland that the spectacle 
 of the Baring failure had a very soothing influence 
 upon labor agitation. It was a great objectdesson ; 
 in it the workmen of the I'^nglish industrial world 
 saw a vast sum of money, probably as much as one 
 hundred and fifty millions of dollars, absolutely 
 sunk by capitalists, mainly in giving employment 
 to labor. The great bulk of the money, as was 
 well known by them at the time, went in the pros- 
 ecution of great industrial enterprises or internal 
 improvements in several parts of the world, and the 
 money was lo.st by actual count very largely in 
 wages. Now, the State, still less a monopoly, will 
 never attempt unprofitable enterprises. Under an 
 individualistic system of private competition a great 
 many more sugar refineries were running in this 
 country than were necessary to meet the demand, 
 but the Sugar Trust has closed many of them. 
 Nothing is more usual than for the amount of wages 
 paid in an enterprise to exceed the value of the total 
 output. 
 
 It can be proved that the output of most gold-
 
 144 LABOR IN ITS RELATIONS TO LAW 
 
 mines does not amount to the actual money sent 
 into the camp for working them. I have been 
 assured that in Cripjjle Creek, CoL — rich as 
 that locahty is in gold — the amount of money 
 sent into a camp in the form of supplies and 
 money to pay labor far exceeds the value of the 
 gold that actually goes out. In other words, 
 mining, like many other kinds of industry, is a 
 lottery ; viewed as a whole it does not really pay. 
 People embark their money in the hope of getting 
 a prize, and that money goes mainly to pay the 
 wages of labor. I hold strongly that under a sys- 
 tem of absolute state socialism there would, be far 
 less demand for labor than there is to-day. 
 
 True Path of Progress. 
 
 In association, therefore, in collective bargain- 
 ing, not in going back on all past history and 
 giving up the contract, but by extending, strength- 
 ening, and improving it, lies, as it seems to me, the 
 path of the future. Just as the laborer employed 
 even by the day assumes a higher relation than the 
 slave or serf, so the laborer employed by definite 
 intelligent contract is in a higher relation than he ; 
 and, most of all, the laborer employed under a con- 
 tract made by all the laborers of his class, made by 
 a contracting party with power at least equal to 
 that of the employers, greater than that of the in- 
 dividual employer, is in a position better still. The
 
 FORECAST or Tlit FUTURE 145 
 
 Haverhill strikers last winter were said to have 
 struck, against the contract system. What they 
 really struck against was a bad contract, which, 
 individually, in some cases, they had not the in- 
 telligence to refuse to sign, and which, collectively, 
 they had not the power to resist or modify. Indefi- 
 nite relation is the e.ssence of slavery. Contract is 
 the charter of freedom. With the power to demand 
 and the power to enforce laljor contracts, for wages 
 and for times which shall be the utmost the em- 
 ployer can afford to concede, and with intelligent 
 sympathy on tlie part of the public, the newspaper 
 press, and the consumer, a .symi)athy not blind, but 
 an.xious to support labor in its demand for a con- 
 tract which is rea.sonal)le, botii by i)ublic opinion 
 and by the enactment of laws where they are in- 
 disjjensable, I hold that the improvement of the 
 condition of industrial labor may make greater 
 strides in the next century even than it has in the 
 last, and that, witliout jeopardizing any right, any 
 freedom, or any object, which we .\mcri( ans hold 
 dear.
 
 NO IV READY. 
 
 LABOR IN ITS RELATIONS 
 TO LAW. 
 
 Four Lectures delivered at the Plymouth School 
 of Ethics, July, 1895. 
 
 By F. J. STIMSON, 
 
 Author of " American Statute I^.nw," " Hand-Book to the Labor Law of the 
 
 United States," Secretary of the National Conference of State 
 
 Commissions upon Uniformity of Law, etc., etc. 
 
 lOtno, 75 cents net. 
 
 This book will serve as a convenient and iiiterestinR com- 
 mentary on the author's forthcominR, more formal treatise upon 
 the law of the suhjcct, as well as a popular statement of the growth 
 and culmination of labor problems, the effect of recent United 
 States statutes, and the attitude both of American courts and of 
 the best expert opinion on the future of the question. 
 
 Mr. Stimson is well known by his two important volumes on 
 American Statute Law, and as an autliority upon statutes and con- 
 stitutional questions arising therefrom. Of these four lectures, the 
 first is upon the History of the Law of Labor, the second upon the 
 Employment Contract, the third upon Strikes and Boycotts and 
 Injunctions, and the fourth is devoted to a F"orecast of the Future, 
 with a reasonable statement of the positions of both sides, a con- 
 sideration of impossible claims, and a reasonable statement of the 
 possible solution. The popular nature of the subject and the 
 simplicity of the style make this little book eminently one for 
 general reading. 
 
 Por sale by all booksellers, or sent, post-f'iiul, on receipt of 
 price, by 
 
 CHARLES SCRIBNER'S SONS, 
 
 153-157 Fifth Avenue, New York.
 
 IN PRESS. BY THE SAME AUTHOR. 
 
 HAND-BOOK TO 
 
 THE LABOR LAW OF THE 
 
 UNITED STATES. 
 
 I21UO. In press. 
 
 This book is not intended to be a law text-book, but, as its title 
 indicates, a popular hand-book to the law of labor, employers' con- 
 tracts, strikes, boycotts, and the relation of the wage earners both 
 to ordinary employers and to railway or other corporations and 
 trusts, as it exists in the several States of the Union to-day. 
 
 It is well known that the labor question has had more develop- 
 ment, both by a statute and court decision, during the last five 
 years than for centuries previous, and there is at present no book 
 completely covering the subject. Mr. Stimson's work is intended to 
 supply this want. It will contain a complete statement of the vari- 
 ous attempts made by statute, in the several States of the country, 
 to deal with the labor question ; and will concisely show both the 
 statute law and the view taken by the courts upon all matters of 
 interest to the wage-earner up to the time of the summer of 1S95. 
 
 Among the subjects treated of will be the regulation, by statute 
 or otherwise, of hours of labor ; of the labor of women and children; 
 of labor done on public works, or in special occupations ; and of all 
 the laws which have been passed on these subjects, as well as upon 
 that of the rate and method of payment of wages, including those 
 laws which have been declared unconstitutional by the courts. 
 It will also treat the general question of the employment contract, 
 and trace its development in modern law, with special reference to 
 recent statutes concerning intimidation, obligatory membership of 
 benefit societies, prison labor, co-operation, and profit-sharing; 
 and the statutes concerning factory inspection and the regulation 
 of sweatshops, with their interpretation by the courts. 
 
 Particular attention will be given to the growth of the law of 
 conspiracy, with reference to the legality of strikes and boycotts, 
 trades unions, and the modern regulation and protection of 
 unions for the benefit of employees. The relation of corpora- 
 tions to labor will also be discussed, and particularly that of 
 railroad corporations through the recent statutes of the United 
 States regulating trusts and interstate commerce, and the liability 
 of strikers and others, both to the criminal law and to summary 
 process of the Federal equity courts, will be fully considered, as 
 well as the progress already made in legal provision or recognition 
 of machinery for arbitration and conciliation, whether by the State 
 or by private parties. 
 
 As the book is intended to be a hand-book for general use, it will 
 not be over-burdened with legal citations, reference being given 
 only to all the statutes so far enacted bearing upon the subject, and 
 to the leading decisions of courts where such exist. 
 
 Eor sale by all booksellers, or sent, post-paid, on receipt 0/ price, by 
 
 CHARLES SCRIBNER'S SONS, 
 
 153-157 Fifth Avenue, New York.
 
 "'■ 'late stamped below
 
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