83 F. 912 | 8th Cir. | 1897
Lead Opinion
This case comes on appeal from an order made by the circuit court of the United States for the district of Kansas, granting an interlocutory injunction. The motion for the injunction was heard on the bill and supporting affidavits, and on certain opposing affidavits. There is no substantial controversy with reference to the material facts disclosed by the bill and accompanying affidavits, which may be summarized as follows: The appellants, H. C. Hopkins-and others, who were the defendants below, are members of two voluntary, unincorporated associations, termed, respectively, the Coopers’ International Union of North America, Lodge No. 18, of Kansas City, Kan., and the Trades Assembly of Kansas Oily. Kan. The first of these associations is a labor organization composed of coopers, which has local lodges in all the important trade centers throughout the United States and Canada. The other association, the Trades Assembly of Kansas City, Kan., is a body composed of representatives of many different labor organizations of Kansas City, Kan., and is a branch of a general organizaÍ ion of the same name which, exists and operates, by means of local assemblies, in all the principal commercial centers of the United Status and Europe. The Oxley Stave Company, the plaintiff below and appellee here, is a Missouri corporation, which is engaged at Kansas City, Kan., where it has a large cooperage plant, in the manufacture of barrels and casks for packing meats, flour, and other commodities. It sells many barrels and casks annually to several large packing associations located at Kansas City, Mo., and Kansas City, Kan., and also has customers for its product in 16 other states
“To the Officers and Members of the Trades Assembly — Greeting: Whereas, the cooperage firms of J. R. Kelley and the Oxley Cooperage Company have placed in their plants hooping machines operated by child labor; and whereas, said hooping machines is the direct cause of at. least one hundred coopers being out of employment, of .which a great many are unable to do anything else, on account of age, and at a meeting- held by Coopers’ Union No. 18 on the 31st of December, 1895, a committee was appointed to notify the above firms that unless they discontinued the use of said machines on and after the 15th of January, 1890, that Coopers’ Union No. 18 would cause a boycott to be placed on all packages hooped by said machines the 15th of January, 189G, and at a meeting held by Coopers’ Union No. IS on the 4th of January, 1896, delegates were authorized to bring th§ matter before the Trades Assembly in proper form, and petition the assembly to indorse our action, and to place the matter in the hands of their grievance committee, to act in conjunction with the committee appointed by Coopers’ Union No. 18 to notify the packers before letting their contracts for their cooperage: Therefore, be it resolved, that this Trades Assembly indorse the action of Coopers’ Union No. 18, and the matter be left in the hands of the grievance committee for immediate action.
“Yours, respectfully, J. L. Collins,
“Sec’y Coopers’ International Union of North America, Lodge 18.”
It was also charged, and the charge was not denied, that the members of the voluntary organizations to which the defendants belonged
The first proposition contended for by the appellants is that the (rial court acted without jurisdiction in awarding an injunction. The ground for this contention consists in the fact that in the bill, as originally filed, two persons were named as defendants who werfe citizens and residents of the state of Missouri, under whose laws the Oxley Stave Company was incorporated. But as the case was dismissed as to these defendants, and as to the two voluntary unincorporated associations, and as to all the members thereof who were not specifically named as defendants in the bill of complaint, before an injunction was awarded, and as the bill was retained only as against persons concerned in the alleged conspiracy who were citizens and residents of tlie state of Kansas, the objection to the jurisdiction of the trial court is, in our opinion, without merit. Oxley Stave Co. v. Coopers’ International Union of North America, 72 Fed. It is further urged that tlie trial court had no right to proceed with the hearing of the case in the absence of any of the persons who were members of the two voluntary organizations, to wit, the Coopers’ Union, No. 18, and flu* Trades Assembly of Kansas Oiiv, Kan., because all the members of those organizations were parties to (lie alleged conspiracy. This contention seems to be based on the assumption that every member of the two organizations had'the right to call upon every other member for aid and assistance in carrying out tlie alleged conspiracy, and that an injunction restraining a part of the members from rendering such aid and assistance would necessarily operate to lhe prejudice of those members who had not been made parties to the suit. In oilier words, tlie argument is that certain indispensable parties to (he suit have not been made parties, and (hat full relief, consistent with, equity, cannot be administered without. their presence upon the record. We do not dispute the existence of the rule which the defendants invoke, but it is apparent, we think, that it has no application to the case in hand. The present
We turn, therefore, to the merits of the controversy. The substantial question is whether the agreement entered into by the members of the two unincorporated associations to boycott the contents of all barrels, casks, and packages made by the Oxley Stave Company which were hooped bv machinery was an agreement against which a court of- equity can afford relief, preventive - or otherwise. The contention of the appellants is that it was a lawful agreement, such as they had the right to make and carry out, for the purpose of maintaining the rate of wages then paid to journeymen coopers, and that, being lawful, the injury occasioned to the plaintiff company, no matter how great, was an injury against which neither a court of law nor equity can afford any redress. According to our view of the case, the claim made by the defendants below, that one object of the threatened boycott was to prevent the employment of child labor, is in no way material; but, in passing, it will not be out of place to say that this claim seems to have been a mere pretense, since it was shown that the machinery used to hoop barrels cannot be managed by children, but must, of necessity, be operated by persons who have the requisite strength to handle barrels and casks' weighing from 75 to 80 pounds with great rapidity. It is manifest that this is a species of labor which could not, in any event, be performed by children. Neither do we deem it necessary on the présent occasion to define the term “boycott”; for, whatever may be the meaning of that word, no controversy exists in the present case concerning the means that were to be employed by the members of the two labor organizations for the purpose of compelling the plaintiff company to- abandon the use of hooping machines. It is conceded that their purpose was to warn all of the -plaintiff’s immediate customers not to purchase machine-hooped barrels or casks, and to warn wholesale and retail dealers everywhere not to handle provisions or other commodities which were packed in such barrels or casks. This warning was to be made effectual by notifying the members of all associated labor organizations Throughout the United States, Canada, and Europe, not to purchase provisions or other commodities, and, as far as pos
While the courts have invariably upheld the right of individuals to form labor- organizations for the protection of the interests of the laboring classes, and have denied the power to enjoin the members of such associations from withdrawing peaceably from any service, either singly or in a body, even where such withdrawal involves a breach of contract (Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310), yet they have very generally condemned those combinations usually termed “boycotts,” which are formed for the purpose of interfering, otherwise than by lawful competition, with the business affairs of o-thers, and depriving them, by means of threats and intimidation, of the right to conduct the business in which, (hey happen to be engaged according to the dictates o-f their own judgments. The right: of an individual to carry on his business as he sees fit, and to use such implements or processes of manufacture as he desires to use, provided he follows a lawful avocation, and conducts it in a lawful manner, is entitled to- as much, consideration as his other personal rights; and the law should afford protection against the efforts of powerful combinations to rob Mm of that right and coerce his will by intimidating his customers and destroying his patronage. A conspiracy to- compel a-manufacturer to abandon the use of a valuable invention bears no resemblance to a combination among laborers to withdraw from a given employment as a means of obtaining better pay. Persons engaged in any service have the power, with which a court of equity will not interfere by injunction, to abandon that service, either singly or in a body,' if the wages paid or the conditions of employment are not satisfactory; but they have no right to dictate to an employer what kind of implements he shall use, or whom he shall employ. Many courts of the highest character and ability
“That every man is at liberty to induce others, in the words of the act of parliament, ‘by persuasion or otherwise,’ to enter into a combination to keep ap the price of wages, or the like: but directly he enters into a combination which has as its object intimidation or violence, or interfering with the perfect freedom of action of another man, it then becomes an offense, not only at common law, but also an offense punishable by the express enactment of the act 6 Geo. IV., e. 129. It is clear, therefore, that the p>rinting and publishing of these placards ahd advertisements by the defendants, admittedly for the purpose of intimidating workmen from entering into the service of the plaintiffs, are unlawful acts, punishable by imprisonment, under Id., c. 129, and a crime at common law.”
In Temperton v. Russell [1893] 1 Q. B. 715, tlie facts appear to have been that a committee representing certain trades unions, for the purpose of enforcing obedience to certain rules that had been adopted by the unions, notified the plaintiff not to supply building materials to a certain firm. He having declined to comply with such request, the committee thereupon Induced certain third parties not to enter into further contracts with the plaintiff; such third parties being so induced by threats or representations that the unions would cause their laborers to be withdrawn from their employ in case such further contracts were made. It was held that the plaintiff had a right of action against the members of the committee for maliciously conspiring to injure him by preventing persons •from having dealings with him. In delivering the judgment of the court the master of the rolls (Lord Esher) quoted with approval a statement of the law winch is found in Bowen v. Hall, 6 Q. B. Div. 333, to the effect that where it appears that a defendant has, by persuasion, induced a third party to break his contract with the plaintiff, either for the purpose of injuring the plaintiff, or for the purpose of reaping a personal advantage at the' expense of the plaintiff, the act is wrongful and malicious, and therefore actionable. In the case of State v. Stewart, 59 Vt. 273, 9 Atl. 559, it was held that a combination entered into for the purpose of preventing or deterring a corporation from taking into its service certain persons
“The principle upon which the cases, English and American, proceed, is that every man has the right to employ his talents, industry, and capital as he pleases, free from the dictation of others; and, if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. The labor and skill of the workmen, he it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all, in equal sense, property. If men, by overt acts of violence, destroy either, they are guilty of crime. The anathemas of a secret organization of men appointed for the purpose of controlling the industry of others by a species of Intimidation that work upon the mind, rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence. And, while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay the basis for an indictment, on the ground that the state itself is directly concerned in the promotion of all legitimate .industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings.”
In Barr v. Trades Council (N. J. Ch.) 80 Atl. 881, it appeared that a publisher of a newspaper had determined to use plate matter in making up his paper, whereupon the members of a local typographical union, conceiving their interests to be prejudiced by such action, entered into a combination to compel him to desist from the use of such plate matter. The object of the combination was to be accomplished by the typographical union by a formal call upon all labor organizations with which it was affiliated, and upon all other persons who were in sympathy with it, to boycott the paper, by refusing to buy it or advertise in the same. It was held, in substance, that a person’s business is property, which is entitled under the law to protection from unlawful interference, and that the combination in question was illegal, because it contemplated a wrongful interference with the plaintiff’s freedom of action in the management; of bis own affairs. Decisions embodying substantially the same views have been made by many other courts. Hilton v. Eckersley, 6 El. & Bl. 47, 74; Steamship Co. v. McKenna, 30 Fed. 48; Casey v. Typographical Union, 45 Fed. 135; Thomas v. Railway Co., 62 Fed. 803, 818; Arthur v. Oakes, 11 C. C. A. 209; 63 Fed. 310, 321, 322. See, also, Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Vegelahn v. Guntner (Mass.) 44 N. E. 1077. The cases which seem to be chiefly relied upon as supporting the contention that the combination complained of in the case at bar was lawful, and that the action proposed to be taken in pursuance thereof ought not to be enjoined, are the following: Mogul S. S. Co. v. McGregor, 23 Q. B. Div. 598; Id. [1892] App. Cas. 25; Continental Ins. Co. v. Board of Fire Underwriters of the Pacific, 67 Fed. 310; and Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119. In the first of these cases the facts were that the owners of certain steamships, for the purpose of securing all the freight which was shipped at certain ports, and doing a profitable business, had formed an association, and issued a circular to shippers at said ports, agreeing to allow them a certain rebate on freight bills, provided they gave their patronage exclusively to ships belonging to members of the associa
We think it is entirely clear, upon the authorities, that the conduct of which the defendants below were accused cannot be justified on the ground that the acts contemplated were legitimate and lawful means to prevent a possible future decline in wages, and to secure employment for a greater number of coopers. >,'o decrease in the rate of wages had been threatened by the Oxley Stave Company, and, with one exception, the; members of the combination were not in the employ of the plaintiff company. The members of the combination undertook to prescribe the manner in which the plaintiff company should manufacture barrels and casks, and to enforce obedience to its orders by a species of intimidation which is no less harmful than actual violence, and which usually ends in violence. The combination amounted, therefore, to a conspiracy to wrongfully deprive the plaintiff of its right to manage its business according to the dictates of its own judgment. Aside from the foregoing considerations, the fact cannot be overlooked that another object of the conspiracy was to deprive the public at large of (lie benefits to be derived from a labor-saving machine which seems to have been one of great utility. If a combination to that end is pronounced lawful, it follows, of course, that combinations may be organized for the purpose of preventing the use of harvesters, threshers, steam looms, and printing presses, typesetting machines, sewing machines, and a thousand other inventions which have added immeasurably to the productive power of human labor, and the comfort and welfare of mankind. It results from these views that the injunction was properly awarded, and the order appealed from is accordingly affirmed.
Dissenting Opinion
(dissenting). To prevent the merits of the casi; from being misconceived or obscured, it is well to slate at the threshold what it does, and what it does not, involve. It involves no question of the obstruction of interstate commerce, or the United Htates mails, or any other federal right. The bill does not charge that the defendants violated any law of the state of Kansas or of the United States, or that they threaten to do so, or that they are guilty of any breach of the public peace, or that any violence or injury to person, or to public or to private property, was perpetrated, threatened, contemplated, or feared. To show precisely what the suit does involve, that portion of the bill which states the plaintiff’s grounds of complaint is bore copied:
“And your orator alleges and charges that the said defendants have combined, confederated, and conspired together to require of your orator to discontinue in its plant and plants the use of said hooping machines, and, upon refusal of your orator so to do, to boycott the product of your orator’s said plant and plañís; that is to say, to persuade and coerce all other persons to abstain from having any business relations with your orator, or to patronize your orator by purchasing from your orator the said product and output of your orator’s said plants, or from being customers of your orator, or from buying anything from your orator, or sustaining any business relations to*922 your orator, and to so induce, persuade, and coerce all persons to discontinue all dealings with your orator, if your orator shall refuse to comply with the said request and demand of the said defendants, and to exclude your orator from business relations with the public, and to practically break up, suspend, and ruin your orator’s business, if your orator shall refuse to accede to the said demand of said conspirators; and the said defendants have so conspired as aforesaid, and to accomplish said conspiracy, by serving notice upon all persons engaged in any business, of a kind in which the product and output of your orator’s plant are used, not to patronize your orator, upon pain of withdrawal of patronage from such persons of said conspirators, and of various members of their said organizations, and of all affiliated and sympathizing kindred organizations, and that said conspirators, and those associated with, related to, and subject to the control of, said conspirators consist of a vast body of people, the number of which is unknown to your orator, in all of the great commercial and trade centers of this and other countries, and possess great power, and are able to, and if unchecked will, do to your orator great, damage and injury.”
The ground upon which the jurisdiction in equity is rested is that the defendants are, in the language of the opinion of the court, “persons of small means.” It will be observed that the bill alleges specifically how the “boycott” was to be conducted, and also how the “conspiracy” was to be accomplished, and that force, threats, or violence is not an element either of the boycott or the alleged conspiracy. Any contention that the defendants meditated violence is silenced by the statement in the brief of the plaintiff’s attorney that “it is fair to presume, from the resolution and other testimony, that the defendants were determined to use all means, short of violence, to make the proscription effective.” The material part of the answqr of the Coopers’ International Union appears in the affidavit of its president, and is as follows:
“That about a year and a half prior to the commencement of this action tliecomplainant company commenced to operate certain hooping machines (i. e. machines for cutting hoop locks in, and trailing wooply hoops upon, tierces- and barrels); that said machines were attended to, and operated by, child labor in said shop (in many instances by children under the age of fourteen years), and that in the operation of said machines the said children were constantly exposed to serious injury, by reason of tender years, inexperience, ahd the manner of the operation of said machines; that the tierces or barrels hooped by these machines were of an inferior quality, and the said lock, and the manner of locking the hoops thereon, being of such a construction that the said tierces and barrels were unable and unsuitable for the purpose of handling and holding for transportation the products of the packing houses and various other manufacturers, — a fact that was recognized and well known by many of the packing concerns in and about Wyandotte county. Kansas. Affiant further says that during the time of his employment by the complainant company there has been returned to said conrpany, as defective and unfit for use, as high as forty-seven out of a shipment of fifty machine-made barrels, and that the percentage of machine-hooped barrels returned to the complainant company as defective was, of an average, ten times as many as returned from the hand-hooped shipments, even though the complainant company employed and retained a large number of unskillful and inefficient men, engaged in hooping barrels and tierces, which said men were not members of said Coopers’ Union, and, by reason of their inefficiency, could not become members thereof; that, by reason of the unworkmanlike and defective barrels manufactured and turned out by the said machines, the wages and compensation of the aforesaid journeymen coopers employed in the cooperage establishments of Wyandotte county, Kansas, were threatened to be materially lowered and reduced, in this, to wit: that in the use of said machines in connection with child labor the said complainant company were enabled to,*923 ancl did, discharge (throw out of employment) a large, number of competent and efficient journeymen coopers, citizens of the state of Missouri, and citizens of the state of Kansas, and members of the said Coopers’ Union, and that thereafter ihe said Coopers’ Union was informed by some, if not all, of the various cooperage establishments in Wyandotte county, Kansas, that unless the complainant company ceased to operate said machines, and to flood the market with Hie cheap and inferior tierces and barrels, they would be obliged to reduce the wages and compensation paid by them to journeymen coopers employed in their various plants, and that one coojjerage establishment did reduce 1he price and compensation of said journeymen coopers, and also threatened the said journeymen coopers belonging to said Coopers’ Union with discharge unless tilt! said output and competition of the cheap and inferior product be taken out of the market; * * * that at no time during the said controversy between said Coopers’ Union and said Trades Assembly and the said complainant company has there been any violence threatened or contemplated, and that at no time during said period has there been any unlawful interference with ihe business of the said complainant company, or lias any unlawful interference been threatened; that it is the intention of the said Coopers’ Union and Trades Assembly, in case the said complainant company insists upon Hie use of said machines, and the consequent deprivation of 1 he workingmen. members of said Cooxiers’ Union, of their means of livelihood, that they will request (without in any maimer threatening violence, or without making any demonstration of force, and without the use of violence, force, or any coercion of any kind) the co-operation of their fellow workingmen in refusing to imrchr.se or use commodities packed in said defective tierces and barrels manufactured by machinery and child labor; * * * that, the action of the said Coopers’ Union and said Trades Assembly are simply acts of business competition, opposite? ihe said complainant coirrpany, together with all oilier persons manufacturing wooden, machine-hooped tierces and barrels, and their attempt to use and foist upon the public, machine and child-labor manufactured barrels and tierces: and assisting the said workingmen in securing and protecting their wages and their source of livelihood.”
These excerpts from the pleadings accurately present the issues between the parties. In the plaintiff's bill, and the court’s opinion, the words, ‘•conspiracy,” “threats.” and “coerce,” are freely used. Indeed, the plaintiff's case is made to rest upon the use of these terms. It is important, therefore, at the threshold, to inquire what is meant by the use of these legal epithets in this case. Unexplained, they have an evil import. A conspiracy is defined to be:
“A combination of iiersons for an evil purpose; an agreement between two or more persons to do in concert something reprehensible, and injurious or illegal; particularly, a combination to commit treason or excite sedition or insurrection: a ¡dot; concerted treason.” Cent. Diet.
From the earliest times the word has been used to denote a highly criminal or evil purpose. Thus, in Ads xxiii. 12,13, it is said:
“And, when it was day, certain of the .Tews banded together, and bound themselves under a curse, saying tliat: they would neither eat nor drink till they had killed Paul. And they were more than forty which had made this conspiracy.”
Plainly, nothing the defendants did, or are charged with intending to do, comes within this definition of a conspiracy. Ho as to “threats.” In the common acceptation, a threat means the declaration of a purpose to commit a- crime or some wrongful act. blow, what the defendants did, and all they did, is explicitly testified to by Mr. Gable., the president of the Coopers' International Union, lie says that the Hoopers’ Union gave complainant notice—
*924 “That unless their use of said machines, and competition of the inferior tierces and barrels with the hand-hooped barrels of the journeymen coopers, members of said association, should cease on or before January 15, 18Ü6, that a boycott would be declared by said Ooopeis’ Union upon the contents of tlio tierces and barrels hooped by the hooping machines in Wyandotte county, Kansas; meaning thereby that the members of said Ooopers’ Union, and of its parent association, the Trades Assembly, would thereafter cease to pur- ■ chase or use any commodities that were packed in machine-hooited tierces and barrels.”
Many other witnesses testified to the same effect, and there is no testimony to the contrary. The “conspiracy” charged upon the defendants consisted, then, in the Coopers’ Union and the Trades Assembly agreeing not “to purchase or use any commodities that were packed in machine-hooped tierces and barrels, which came in competition with the hand-hooped barrels,” which were the product of their labor (and the bill charges no more); and the “threats” consisted in giving the complainant and certain packing houses formal notice of this purpose. The alleged “conspiracy,” therefore, was the agreement stated, and the alleged “threats” were the notice given by that agreement, and the “coercion” was the effect that this agreement and notice had on the minds of those affected by them. It is not true that there is nothing in a name. When for “conspiracy” we substitute “agreement,” and for “threats” a “notice,” the whole fabric of the plaintiff’s case falls to the ground. “There are,” says Dr. Lieber (Civil Liberty and Government), “physchological processes which indicate suspicious intentions”; and among them is the use of high-sounding and portentous terms, from which much may be implied or imagined, instead of using plain and common words, which accurately describe the action, and leave nothing to implication or imagination. If an act done or threatened to be done is lawful, it cannot be made unlawful by giving it a name which imports an illegal act. Names are not things. It is the thing done or threatened to be done that determines the quality of the act, and this quality is not changed by applying to the act an opprobrious name or epithet. Unless the definition of a word fits the act, the definition is false, as applied to that act. “Conspiracy” sounds portentous, but in this instance its sound is more than its meaning. As here used, it describes a perfectly innocent act, — as much so as if the charge was that the defendants “conspired” to feed a starving comrade, or to bury a dead one. But if the bill charged, and the proof showed, that a breach of the peace was imminent, that fact would not confer jurisdiction on a court, of chancery. Courts of equity "have no jurisdiction to enforce the criminal laws. It is very certain that a federal court of chancery cannot exercise the police powers of the state of Kansas, and take upon itself either to enjoin or to punish the violation of the criminal laws of that state. It is said by those who defend the assumption of this jurisdiction by the federal courts that it is a swifter and speedier mode of dealing with those who violate or threaten to violate the laws than by the prescribed and customary method of proceeding in courts of law; that it is a “shortcut” to the accomplishment of the desired object; that it avoids the delay and uncertainty incident to a jury trial, occasions less expense, and insures a speedier punishment. All this may be conceded to be true. But
“The trial of all dimes, except in case's of impeachment, shall be by jury.” Const, art. 3. “Ko person shall be held to answer for a capital or otherwise infamous crime, unless on a. presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” Const. Amend, art. 5. “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury. * * *” Id. art. 6. “In suits at common law where the value In controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Id. art. 7.
These mandatory provisions of the constitution are not obsolete, and are not to be nullified by mustering against them a little horde of equity maxims and obsolete precedents originating in a monarchical government having no written constitution. No reasoning and no precedents can avail to deprive the citizen accused of crime oC his right, to a jury trial, guarantied to him by the provisions of the constitution, “except in cases arising in the land and naval forces, or in the militia when in actual service in time of war or of public danger.” These exceptions serve to emphasize the right, and to show that it: is absolute and unqualified, both in criminal and civil suits, save in the excepted cases. These constitutional guaranties are not to be swept aside by an equitable invention which would turn crime into a contempt, and enable a judge to declare innocent ads crimes, and punish them at his discretion. But notwithstanding the constitution expressly enumerates the only exceptions to the right of trial by jury, and positively limits those exceptions to the
“And except when many persons are associated together for a common purpose, and except in the case of members of trades unions, and other labor organizations, and except in cases of all persons ‘of small means.’ ”
Undoubtedly, it is the right of the people to alter or abolish their existing government, “and,” in the language of the Declaration of Independence, “to institute a new government, laying its foundations on such principles, and organizing its powers in such form as to them shall seem most -likely to effect their safety and happiness.” It is competent for the people of this country to abolish trial by jury, and confer the entire police powers of the state and nation on federal judges, to be administered through the agency of injunctions and punishment for contempts; but the power to do this resides with the whole people, and it is to be exercised in the mode provided by the constitution. It cannot be done by the insidious encroachments .of any department of the government. Our ancestors, admonished by the lessons taught by English history, saw plainly that the right of ■ trial by jury was absolutely essential to preserve the rights and liberties of the people, and it was the knowledge of this fact that caused them to insert in the constitution the peremptory and mandatory provisions on the subject which we have quoted. English history is replete with examples showing that the king and his dependent and servile judges would have subverted the rights and liberties of the English people, but-for the good sense and patriotism of English juries. It is to the verdicts of the juries, and not to the opinions of the judges, that the English people are chiefly indebted for some of their most precious rights and liberties. A brief reference tO' one or two of the many cases will serve to illustrate this truth, and show why a trial by jury is the only sure and safe refuge the citizen has for his rights and liberties:
William Penn and William Mead were Quaker preachers. Their religious faith was offensive to the king, and to his judges and the governing class. The Quaker meeting house having been closed against them, the congregation assembled, in that quiet and orderly planner characteristic of Quakers, in an open place near their meeting house, where. Penn was preaching to them, when they were set upon by the police and violently dispersed. For this Penn and Mead, and not the police who created the disturbance, were indicted. The indictment charged:
“That by agreement between liim [Penn] and William Mead before made, and by abetment of the aforesaid William Mead, then and there, in the open street, did take upon himself to preach and speak, and then and there did . preach and speak unto the aforesaid William Mead and other persons.”
The indictment, like the complaint in this case, bristled with charges of conspiracy, unlawful assembly, etc. Penn, being denied, counsel, was compelled to defend himself. When arraigned, he
“Penn: 1 affirm I liare broken no law, nor am I guilty of tlie indictment that is laid to my charge; and to the end ihe bench, the jury, and myself, with these that hear us, may have a more direct understanding of tills procedure, 1 desire you would let me know,by what law it is you prosecute me, and upon what law you ground my indictment. Iiec.: Upon tlie common law. Penn: Where is that common law? Itec.: You must not think that I am able to run up so many years, and over so many adjudged cases, which we call ‘common law,’ to answer your curiosity. Peun: This answer, 1 am sure, is very short of my question; for, if it be common, it should not be so hard to produce. * * *”
Despite much browbeating from the court, Penn continued to demand of the court to be shown the law that made it a crime for him to preach, and for his congregation to assemble to hear him. Finally the court ordered the bailiff to:
“Take him away. Take him away. Turn him into the bail dock.”
Continuing his defense, Penn said:
“Must 1 therefore be taken away because I plead for the fundamental laws of Kngland? However, this 1 leave upon your consciences, who are of the jury, and my sole judges, — that if these ancient fundamental laws, which relate to liberty and property, and are not limited to particular persuasions in matters of religion, must not be indispensably maintained and observed, who can say he hath right to the coa,t upon his hack?”
Despite the peremptory charge of the court to find Penn guilty of the alleged “conspiracy” and “unlawful and tumultuous assembly,” the jury returned a verdict of “guilty of preaching only.” At this the court fell into a passion, browbeat the jury, particularly their foreman, Bushel, and sent them out to return a general verdict of guilty. This the jury refused to do, and, after being sent out three or four times, they returned a general verdict of not guilty, whereupon they were fined for contempt .of court in rendering the verdict contrary to it.s instructions and to its interpretation of the facts. 6 How. State IT. 951. But the jurors asserted their right to render a verdict: in accordance with the dictates of their own consciences and judgments, and the court to which they appealed' held that they had that right, and could not be punished for exercising it, and reversed the fine. The Penn Case, and the proceedings that grew out of it, constitute one of the foundation stones in the English bill of rights. With all their astuteness and eager desire to serve the crown, it; never occurred to the judges in those days to enjoin the Quakers from meeting, and Penn from preaching to them. This “shortcut” would have gotten rid of the jury, and placed Penn and his followers completely in the power of the judges; and, instead of becoming the founder of a great city and commonwealth in a free republic, he would have languished in an English orison for contempt of court, incurred by preaching to his congregation, for he avowed in court “that all the powers upon earth” could not divert or restrain him from that duty.
Abookseller, whose publications contained criticisms on the administration of public affairs, was indicted for publishing a seditious libel. He was tried before' tb.e chief justice. “In vain,” says an
Seven bishops presented a respectful petition to the king, praying for the enforcement of the laws of the kingdom, and for a redress of grievances. For this they were indicted for libel. It is worth while to note the charge of the judges to the jury. The chief justice said: “And I must, in short, give you my opinion: I do take it to be a libel.” And Justice Allib one said to the jury: “Then I'lay this down for my next position: That no private man can take upon him to write concerning the government at all;' for what has any private man to do with the government, if his interest be not stirred or shaken?” and much more to the same effect. After receiving this charge, the jury, says Lord Campbell, “were marched off in the custody of a bailiff, who was sworn not to let them have meat or drink, fire or candle, until they were agreed upon their verdict. All night were they shut up; Mr. Arnold, the king’s brewer, standing out for a conviction, until six next morning, when, though dreadfully exhausted, he was thus addressed by a brother juryman: ‘Look at me. I am the biggest and the strongest of the twelve; but, before I find such a petition as this a libel, why, I will stay until I am no bigger than a tobacco pipe.’ The court sat again at ten the next-morning, when the verdict of not guilty was pronounced, and a shout of joy was raised, which was soon reverberated from the remotest parts of the kingdom.” 2 Camp. Ch. Jus. 111.
Cases similar to these might be multiplied indefinitely, but enough have been cited to show that it was through the good sense, courage, and love of liberty of the sturdy English juries who stood out against the judges that the right of the people to assemble for lawful purposes, and the right to address them when they were assembled, the right of free speech, and the freedom of the press, and the right of petition for the redress of grievances, were secured to the English people. It is profitable to recur occasionally to these historic cases. They shed light on the action of the framers of our constitution, and explain their resolute and determined purpose to secure to the people of this country the right of trial by jury, against encroachments or invasion from any quarter, or upon any pretext, or by any device whatsoever. The framers of the' constitution knew that it was not enough that “the rights of man be printed, knd that every citizen have a copy.” The rights and liberties guarantied to the people by the constitution would avail them nothing unless they were constantly and carefully guarded from invasion and encroachment from any quarter. They had formed a “government of the people, by the people, for the people,” and they committed the protection and defense of the rights of the people under that government to the only
“The decision to this effect was placed on the ground that members of the association might lawfully agree with each other to withdraw their patronage, collectively, for the-reasons specified in the agreement, because the members, individually, had the right to determine from whom they would make purchases, and withdraw their patronage at any time, and for any reason which they deemed adequate. It is not always the case, however, that what one person may do, without rendering himself liable to an action, many persons may enter into a combination to do. There is a power in numbers, when acting in concert, to inflict injury, which does not reside in a single individual; and for'that reason the law will sometimes take cognizance of acts done by a combination, when it will not do so when committed by a single individual.”
The proposition here approved by the court, and relied on to weaken the authority of the Bohn Mfg. Co. Case, first emanated from an English court. Rex v. Journeymen Tailors, 8 Mod. 11. As laid down in that case, the formula reads:
“A conspiracy of any kind is illegal, although the matter about which they conspired might have, been lawful for them, or any of them, to do, if they had not conspired to do it.”
This proposition, that it is unlawful for men-to do collectively what they may do, without wrong, individually, was enunciated more than a century and a half ago, when all manner of association and cooperation among men, offensive to the king, or not in the interest of despotic power or the ruling classes, or not approved by the judges, were declared by the courts to be criminal conspiracies. It was promulgated at a time “when,” in the language of Mr. Justice Harlan in his opinion in Robertson v. Baldwin, 165 U. S. 288, 17 Sup. Ct. 333, “no account was taken of a man as man, when human life and human liberty were regarded as of little value, and when the powers of government were employed to gratify the ambition and pleasure of despotic rulers,- rather than promote the welfare of the people,” and when laborers had no rights their employers or the courts were bound to respect. The idea of the power of men in association has always been abhorrent to despots, and to those who wish to oppress their fellow men, because its free exercise is fatal to despotism and oppression. The strength it imparts carries its own protection. In all ages those who seek to deprive the people of their rights justify their action by ancient and obsolete precedents, and by coining definitions suited to their ends. In “that codeless myriad of precedent,” running back to the Dark Ages called the “Common Law,” it is not difficult to find a precedent for inflicting any injustice or oppression on the common people. But these' precedents, so shocking to our sense of right, so inimical to our constitution and social and economic conditions, and so subversive of the liberty of men, should be permitted to sleep in profound oblivion. They neither justify nor palliate encroachments on the natural and constitutional rights of the citizens. Under this asserted rule, what a man, when, acting
“So far, T suppose, we are agreed. But there Is a notion, which latterly has been insisted on a good deal, that a combination of persons to do what any one of 1 hem lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformula ted truth may not be hidden under this proposition. Bui, in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and principle. Com. v. Hunt, 4 Metc. (Mass.) 111; Randall v. Hazelton, 12 Allen, 412, 414. There was a combination of Hie most flagrant and dominant kind in Bowen v. Matheson [14 Allen, 502], and in the Steamship Co. Case', and combination was essential to the success achieved. But it is not necessary to cite cases. It is plain, from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the ■organization of the world, now going on so fast, means an ever-increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundamental conditions of life, are to be changed. One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for ins services, and that of society, disguised under the name of ‘capital.’ to get his services for the least possible return. Combina t ion on the one side is potent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way. I am unable to reconcile Temperton v. Russell [1893] 1 Q. R. 715, and the cases which follow it, with the Steamship Go. Case. But Temperton v. Russell is not a binding authority here, and therefore I do not think it necessary to discuss it. If it he irue that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that, when combined, they have the same liberty*932 that combined capital bas, to support tbeir interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully. control.”
The asserted rule has no boundaries or limitations other than the chancellor’s discretion. Whatever combined' action he wills to permit is lawful. Whatever combined action he wills to prevent is a conspiracy. In this country the right of associate and combined action hangs on no such slender thread. But it is said that chancellors should exercise great caution and circumspection in the application of this rule. But this still leaves the right of combined action dependent on the discretion of a chancellor. Thus far they have exercised great discretion, and applied it to combined action of labor organizations onlv. A careful student of social and economical questions of the day, and of the status of the labor movements in England, says :
“A growth in civil rights on the part of the mass of citizens lias attended the labor movement in England from the beginning until now. Workmen are no longer' compelled or expected to act without counsel and without concert. They hold a yearly congress, whose object it is to consult on current questions, to watch their legislation, and to urge the measures they desire. The statute book has thus been rewritten in England, with a wide and just regard for the interest of the workman. The fundamental principios of commercial law have taken on new renderings, and accepted new assertions of right. The action of trade unions in demanding better terms, or oven a boycott to secure these terms, is no longer a conspiracy in restriction of trade. These methods have won civil acceptance, and gotten to themselves social and moral forces in each instance according to their merit. They seem to bo great means of social renovation, which anticipate and prevent revolution. That marvelous political history by which England has won her liberty is repeating itself in her social institutions. Combination is freely accepted. The principle is recognized, — a principle fundamental in social renovation, — that men may do collectively, without wrong, what they may do without wrong individually.” Bascom on Social Facts and Principles, 237.
While laborers, by tbe application to them of the doctrine we are considering, are reduced to individual action, it is not so with the forces arrayed against them. A corporation is an association of individuals for combined action; trusts are corporations combined together for the very purpose of collective action and boycotting; and capital, which is the product of labor, is in itself a powerful collective force. Indeed; according to this supposed rule, every corporation and trust in the country is an unlawful combination; for while its business may be of a kind that its individual members, each acting for himself, might lawfully conduct, the moment they enter into a combination to do that same thing by their combined effort the combination becomes an unlawful conspiracy. But the rule is never so applied. Corporations and trusts, and other combinations of individuals and aggregations of capital, extend themselves right and left through the entire community, boycotting and inflicting “irreparable damage” upon, and crushing out, all small dealers and producers, stifling competition, establishing monopolies, reducing the wages of the laborer, raising tbe price of the food on every man’s table, and of tbe clothes on his back, and of the house that shelters him, and inflicting on the wage earners the pains and penalties of the lockout and the blacklist, and denying to them the right of associa
“VVhiifever else may remain for future determination, it must now be regarded as substantially settled that the mass of wage earners can no longer be dealt vitli by capital as so many isolated units. Tlie time is past when the individual workman is called upon to pit his single, feeble strength against the might of organized capital.”
And, speaking of the restrictions imposed upon laborers by the courts, he said:
“They cannot help knowing that organized capital is not so restricted. , And, when treatment so apparently unfair and discriminating is administered through the instrumentality of a court, the resulting discontent and resentment of employes are inevitably intensified, because; the law itself seems to have got wrong, and in some unaccountable maimer to have taken sides against them.”
A conspiracy is defined to be “any combination between two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means.”, Let the defendants’ action be tested by this rule. Their purpose was to drive the plaintiff’s barrels out of the market, by giving preference to the barrels produced by their labor, and this purpose was to be accomplished by means of the coopers’ and trade's’ unions everywhere refusing to buy the barrels manufae'tureel by the plaintiff, or any of the commodities packed in them by any one*. Devested of ibe legal epithets and verbiage!, this is precisely what the defendants projiose to do, and all (hey propose to do. And it is this the court lias enjoined them from doing. They are enjoined from refusing to buy the barrels, and the commodities packed in the same. If the defendants are not allowed to determine for themselves what they will not buy. Huey ought not to be allowed to determine what they will buy; and the court’s guardianship should
It will appear from a critical examination of the cases cited in support of the court’s conclusion that the facts in each one of them entitled to respectful consideration as a precedent are widely different from the facts in this case. In every one of them having any close analogy to the case at bar, there was the element of violence, or threats of violence, or actual trespass upon the -person or property, or the threat of it, or some display of physical force, or action which was held to constitute a trespass or implied threat. No one of these elements is found in this case. It is simply and purely a case where the labor organizations resolved that they would not purchase or use the barrels manufactured by the complainant, or any commodities packed therein. This they had an absolute right to do, without regard to the question how the complainant’s barrels were manufactured, or whether they were inferior to, or better than, the hand-hooped barrels produced by the labor of the defendants.' The grounds of the boycott are wholly immaterial, in determining the
Something is said about its being against public policy to boycott articles made by machinery. As before said, it is immaterial whether an article is produced by hand labor or machinery. Products produced by machinery are no more exempt from competition and a boycott than the products of hand labor. The products of machines stand on no higher plane, in law or equity, than the like products produced by the labor of man. They may be put in competition with each other, and that competition may be prosecuted precisely as was done in this case.
There are numerous authorities supporting the views of the minority-many of them going far beyond the requirements of this case: Reynolds v. Everett, 144 N. Y. 189, 39 N. E. 72; Sinsheimer v. Garment Workers, 77 Hun, 215, 28 N. Y. Supp. 321; Com. v. Hunt, 4 Metc. (Mass.) 111; Randall v. Hazelton, 12 Allen, 412, 414; Publishing Co. v. Howell (Or.) 38 Pac. 547; Bowen v. Matheson, 14 Allen, 502; Continental Ins. Co. v. Board of Fire Underwriters of the Pacific, 67 Fed. 310; Mogul S. S. Co. v. McGregor, 21 Q. B. Div. 544; s. c. 23 Q. B. Div. 598; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119; McHenry v. Jewett, 90 N. Y. 58; Gilbert v. Mickle, 4 Sandf. Ch. 357. The force of the Steamship Mogul Case, and others of the cases cited, is attempted to be broken by the statement that these were cases of “lawñd competition in trade,” and therefore not applicable to the defendants, who, it is impliedly said, are not entitled to enjoy the right of competition. This is a misconception of what it takes to constitute competition, and of the relation one must sustain to the business to be entitled to the rights of a competitor. The error probably springs from the erroneous assumption that a boycott cannot be used as a weapon of competition, or consist with it. Competition is defined to be an “endeavor to gain what another is endeavoring to gain at the same time.” Gent. Diet. In such a struggle the boycott is perfectly legitimate. It is resorted to by great corporations and trusts, — the sugar trust, the meat trust, the oil trust, and scores of others. That one competing for the mastery in any line of business may rightfully resort to the boycott was decided in the Steamship Mogul Case. Mogul S. S. Co. v. McGregor, 15 Q. B. Div. 476. When that case was before Lord Chief Justice Coleridge, he said:
*937 • “It was an application oí' (lie plaintiffs for an injunction to restrain tlie defendants from doing that which was called throughout the case -and which I really see no reason for hesitating to call, also-•‘boycotting the plaintiffs.’ ”
And ho refused the injunction, and on appeal his judgment was affirmed.
It is the right of every man to compete with every other man in ail lawful business pursuits. Every wage earner has this right. His own interests, no less than the interests of his employer, are at stake. If his employer cannot successfully compete with Ms rivals, h.e must either go out of business, or reduce (lie wages of his employés, as was threatened to be done in this case. The wage earner may therefore not only give preference to his employer’s commodities, and to the product of his own labor, but he may carry competition to the bitter- end, including the boycott, In order to gain the supremacy in the market for his employer's wares, upon whose successful sale his wages, and in some cases, probably, his existence, depend. Competition is not confined alone to cases where the competitors represent large moneyed capital, and are the exclusive owners of the commodity or business out of which the competition arises. It is a fundamental error to deny to labor the rights and privileges oí compel ilion, upon the ground that labor is not: capital, and therefore not entitled to any of the rights of capital.' It: is capital of the very highest and most valuable type. Tt is the creator of all other capital. Cardinal Manning (a great: authority upon any subject upon which he wrote, and who was a profound student of the social and economic problems of the time, will) a view of adjusting the relations of the church to existing social conditions), speaking of the laborer and Ms rights, says:
“Among the English-speaking peoples of the world (that is, in the new world, which seems to he molding our futuro), a workingman is a free man, boil) in his person and in the labor of his hand. The mere muscular labor of his arm is Ms own, to sell as he wills, to whomsoever he wills, wherever and for whatsoever time lie wills, and at whatsoever price he can. If his labor be skilled labor, or even half-skilled labor, it is all the more valuable, and absolutely his own possession. In truth, it is the most precious form of capital, which gold and silver may purchase, but on which gold and silver absolutely depend. Money is but dead capital, after all, but the live capital of human intelligence and the Iranian hand is the primeval and vital capital of the world. Unless these rights of labor can be denied, liberty of organisation to protect these rights and the freedom founded on them cannot be denied.” Letter to Catholic Tablet, April 28, 1887.
In Ms first annual message bo congress, Mr. Lincoln expresses the same Idea in different language. He said:
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor. Capital could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the more consideration.”
That the struggle between the plaintiff and defendants is purely competitive is a fact proven in the case. Mr. Day, president and general manager of the Western Cooperage Company (an intelligent and disinterested witness), testifies that:
“The present controversy is simply a competition between the proprietors of wood-hooping machines and the journeymen coopers; the former endeavor*938 ing to displace the latter by machine, unskilled labor, and the latter endeavoring to protect and maintain their wages and occupation.”
It cannot be the law that the men and women who do the work of the world, and who produce its wealth, have no rights against the wealth they create, and no right to prefer and promote by lawful and peaceful means the sale of the products of their labor, to secure for themselves continued employment. The “irreparable damage” suffered in business by a vanquished competitor at the hands of his successful rival constitutes no cause of action, either at law or in equity. It is the result of the law of competition, to which all men are subject. They take their chances, and must abide the result, whether it bring fortune or failure. In the Steamship Mogul Case, Lord Ohief Justice Coleridge said that it was the resolute purpose of the defendants—
“To exclude tbe plaintiffs, if they could, and to do so without any consideration of - tbe results to the plaintiffs if they were successfully excluded. This, I think, is made out, and I think no more is made out than this. Is this enough? It must be remembered that all trade is, and must be, in a sense, selfish. Trade not being infinite, — nay, the trade of a particular place or district being, possibly, very limited, — what one man gains another loses. In the hand to hand war of commerce, as in the conflicts of public life, whether at the bar, in parliament, in medicine, in engineering (I give examples only), men fight on without much thought of others; except a desire to excel or defeat them.”
And the learned judge held that the plaintiffs could have no redress for their losses; they were losses incident to competition in business, and, as we have seen, to a competition carried on by what the learned chief justice said was “boycotting the plaintiffs.” If every one likely to be “irreparably damaged” by competition could enjoin his competitors from boycotting his wares (that is, refusing to 'buy or deal in them), there would soon be an end of all competition. Under the existing social and economic conditions, the natural person, it has been well said, is the merest rudiment of a man. He can only make his power felt, promote his interests, and defend his rights by association and combination with others. Business and commercial pursuits of any magnitude are not carried on by natural persons any more. All capital seeks to increase its power by combination, and to that end assumes the form of corporations and trusts. The plaintiff in this case is a corporation. It represents a number of persons associated together for the very purpose of combined and collective action. Many of these combinations are on a gigantic scale. Their power and influence are wellnigh irresistible. They are the employers of the great mass of the laborers. They are formed solely for pecuniary profit, and know no other law than that which promotes their pecuniary interests. They defy all social restraints that would have a tendency to lessen their dividends, What the stockholders want is more dividends, and the best manager is the man who- will make them the largest. The struggle is constant between the laborers, whose labor produces the dividends, and those who enjoy them. The manager is tempted to reduce wages to increase dividends, and .the laborers resist the reduction, and demand living wages. Sometimes the struggle reaches the point of open rupture. When it'does,
