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Subject Area: Law
Topic: The American Revolution and Constitution

§ 114.: Labor combinations—Trades unions—Strikes.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

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A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 114.

Labor combinations—Trades unions—Strikes.—

Like combinations of capital, all labor combinations having for their purpose the enhancement of the price of labor and the control of the terms of hiring, were at common law so far illegal as that the courts would not give their aid in enforcing the obligations of the member to obey the orders of the organization in a labor dispute, or in any other way to facilitate the purposes of the organization in the industrial warfare. But unlike combinations of capital, they were by special statutes, dating back to the reign of Edward VI., and reaching to the close of the eighteenth century, declared to be criminal conspiracies, and provision was made for the punishment of the members of the organizations.1 This discrimination against labor organizations, unjust as it was, is rationally and legally accounted for by the fact that other statutes regulated the terms of hiring in all kinds of trades; and, consequently, combinations of laborers, to raise wages or to secure advantages which were not provided for by statute, were really conspiracies against these statutes and the power of the government to control the labor contract. There was no such regulation of the terms of other contracts, and for that reason combinations of capital were not declared to be criminal conspiracies; although, at common law, combinations in unreasonable restraint of trade were so far held to be illegal, as to place them beyond judicial aid and sanction.

Ignoring the important fact, that the criminal character of the labor combination was based upon the express provisions of the statutes, which did not come down to the American people as a part of the common law, two early cases in Pennsylvania held the labor combination, formed for the purpose of controlling the rate of wages, to be a criminal conspiracy;2 while in two New York cases, the influence of the English cases on labor conspiracies led to the declaration by the court that the New York statute, defining criminal conspiracy to include combinations to commit any act injurious to trade or commerce, made a labor organization a criminal conspiracy, even where the members of the combination had only agreed upon the rate of wages which they would demand.1 These cases, however, have not become the law of this country, and they were speedily followed by other cases in Massachusetts, New York and Pennsylvania, which placed labor combinations upon a plane of legal equality with capitalistic combinations, by holding that it was not a criminal conspiracy for workmen to combine for the purpose of enhancing the rate of wages or for improving, in any other way, their relations with employers.2 In Carew v. Rutherford, the Supreme Court of Massachusetts said: “Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases, and on the best terms he can. He may change from one occupation to another, and pursue as many different occupations as he pleases, and competition in business is lawful. He may refuse to deal with any man or class of men; and it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work or deal with certain men or classes of men, or work under a certain price or without certain conditions * * * Freedom is the policy of this country.”3

It may be accepted, therefore, as the law of this country, independently of the effect of modern statutes, to which reference will be made shortly, that there is nothing criminal in trade or labor combinations, so far as they undertake to do no more than by combination to better their own condition, by dictating the terms of the contract of hiring for themselves. And in laying this down as the law of the land, the courts have merely secured to the workman the same liberty of contract, which the capitalist has enjoyed at the common law, and which in preceding pages and sections of this chapter has been declared to be the constitutional right of every man. We find in many of the States, notably, Massachusetts, Michigan, Maryland, Iowa, statutes which provide for the incorporation of trades unions and other labor organizations; and in all of them, one of the permissible objects of incorporation is declared to be the procurement of better terms of employment.1

Congress has also provided for the incorporation of national trades unions,2 for the attainment of similar purposes.

Not only are labor organizations thus recognized; but because membership in one of them acquires a material value, through the possession of property, the establishment of aid funds, etc., the courts will inquire into the rightfulness of expulsion of a member from one of these organizations, and order his reinstatement, if his expulsion is found to be unwarranted by the rules of the organization; and they will award damages for loss of employment, or for any other injury which he may have suffered in consequence.1

A New York statute provides for the registration of labels of trade unions, and the punishment of those who make use of the label on goods which are not made by union labor. The labels are affixed to goods which are manufactured by union labor, so that purchasers, who are so minded, may discriminate in their purchases against the products of non-union labor. This statute was sustained as a lawful assistance to union labor, and it was held not to operate as an invalid discrimination against non-union labor.2

There are, however, statutes in most of the States, as well as an act of Congress, which expressly prohibit all combinations in restraint of trade. These statutes have been fully explained in a preceding section3 in their bearing upon the combinations of capital in restraint of trade; and in that connection, it has been shown that all combinations to control prices and the terms of contract are by these statutes made criminal misdemeanors, and the combinations criminal conspiracies, it matters not how reasonable the regulations and purpose of the capitalistic combination may be, provided they do in fact restrain trade and competition. Unless there are qualified clauses in these statutes, excluding labor combinations from the operation of their provisions, the irresistible conclusion is that all labor combinations, in restraint of trade and competition, are prohibited by these anti-trust statutes, as much so as are the combinations of capital. The laborer, by joining a trade-union, undertakes by his entry into such a combination, to enhance the price of the commodity which he has to sell, i. e., his labor. And by so doing, he restrains trade and competition, in violation of the anti-trust laws, as much as does the manufacturer of oil and sugar by the formation of a trust. The national anti-trust law has been held to apply to labor organizations in a number of cases, beginning with the celebrated Debs case,1 and followed by a large number of cases. But it is difficult to determine how far most of the cases may be cited in support of the proposition, that a trades-union is necessarily a violation of the anti-trust law, as in most of the cases the parties have not confined themselves to an agreement, that they will insist upon certain terms of employment, but have proceeded by divers means to compel all others, not members of the union, who work at the same trade, to combine with them, in forcing the employers to accede to their demands. There are, however, a few cases, in which the issue is clearly met and settled, that the anti-trust laws prohibit alike labor and capitalistic combinations in restraint of trade. Thus in one case,2 the Supreme Court of Illinois held an association of stenographers, which was formed “to establish and maintain uniform rates of charges and to prevent competition among its members was an illegal combination in restraint of trade, and refused to allow an action to be brought by one member against another for underbidding him in violation of the rules of the association. In another case,3 the by-laws of a masons’ and builders’ association, the membership of which included six-sevenths of the contractors of a city, which required the members to first submit all bids made by them to the association and the lowest bidder to add six per cent to his estimate, before he submitted his bid to the owner or architect, and to pay to the association the added six per cent, were unlawful contracts in restraint of trade, and were void. On the other hand, it has been held in Oregon,1 that where a trades union seeks by fair means to compel an employer to obey a reasonable rule of the union, the union is not engaged in the creation of a monopoly, in violation of the anti-trust laws.

In a few of the States, there are special statutes, which expressly authorize workmen to combine “for the purpose of obtaining an advance in the rate of wages or compensation or of maintaining such rate” (New York statute) and declare that such a combination is not a conspiracy. Such laws are to be found in New York, Pennsylvania, New Jersey and Colorado.2

The New Jersey statute was held to authorize and to make lawful a combination of workmen to secure the control of the work connected with their trade by any peaceable means. And the court declared that equity would not enjoin such a combination, on the ground that it was detrimental to trade or injurious to individual business.3 The statutes, heretofore referred to, which authorize the incorporation of labor organizations for the purpose of controlling wages and the terms of the labor contract, would probably be sustained as exceptions to the anti-trust laws, which prohibit similar combinations among capitalists; so that in those States, a labor organization, duly incorporated, would not be an unlawful combination in restraint of trade, even though it were large enough to completely control the price of labor and the terms of hiring in a particular trade or occupation, as some of the labor organizations are; for example, the locomotive engineers.1 But, after the reader has carefully considered the numerous cases, cited and explained in preceding sections, which pronounce unconstitutional, because they are special or deny to all of the same class the equal protection of the laws, all laws which discriminate in favor of some and against others, would have no difficulty in framing an argument to prove that the anti-trust laws, taken in conjunction with the statutory exemption of labor organizations from the restrictions of those laws, are an unconstitutional discrimination against the capitalist and an unauthorized favoring of the laboring classes in the industrial warfare.2 But this legislation is an undoubted, and, from the practical standpoint, probably unassailable determination of the State to diminish the natural inequalities of capital and labor, by prohibiting combinations of capital and permitting combinations of labor. When one considers this matter, apart from the fiction of equality of all men before the law, and from the technical rules of constitutional law which rest upon that fiction, it does not seem unreasonable to make this discrimination, while the liberty of contract of both parties is protected from infringement or restriction by controlling legislation. The individual laborer is completely at the mercy of the employer, if he cannot combine with his fellows to maintain a standard of wages and to control the terms of the labor contract in other matters. Even then, is there no real equality of conditions between the employer and the employee. The individual employer, who is prohibited from combining, has through his control of the materials of production and the immediate necessities of the workmen the advantage over the members of the labor organization, from whom he selects his employees. The thorough-going individualist would, of course, condemn any restrictions upon voluntary combinations of either capital or labor, and the constitutional requirements of uniformity of laws for all men and the equality of all men before the law, sustain him in this contention.

Granted, that labor organizations are lawful combinations in restraint of trade, when they are formed for the purpose of controlling the price of labor, there is no illegality in the simple act of striking. A body of workmen, belonging to the same union, and employed in the same industry, have an undoubted right to strike, i. e., to leave the situations which they have held, if the employer refuses to agree to their terms of employment. Where the individual workman does this, his action is unquestionably lawful, if he acts in a thoroughly peaceable manner; and no law could deny him this right, without violating the constitutional principle of liberty of contract, unless he has been engaged to serve for a definite period of time, and he proposes to abandon his work before the expiration of the term of service. In a preceding section1 it has been explained that there is no legal difficulty in the way of enjoining the specific performance of a labor contract, except in those cases in which the work called for by the contract required unusual skill; which, of course, could not be commanded by an injunction. But even in such a case, equity has frequently compelled indirectly the performance of the contract for work, by enjoining the “striking” artist, singer, etc., from fulfilling any other engagement during the period of the broken contract of service. A strike without cause during the period of hiring, where the contract stipulates the period of hiring, is undoubtedly unlawful, whether it is done by an individual workman or by a combination of workmen, acting in unison.

But in its application to most labor disputes and to most strikes of workmen, this distinction between definite and indefinite periods of service is almost an academic question, for the reason that it rarely happens that workmen are employed for a definite period of time. The labor contract is almost invariably a hiring from day to day; and if the contract does not expressly or by provision of law require a notice to quit, either party to it may terminate the contractual relation at the close of any day without any notice whatever. And, whenever labor combinations for regulating the terms of the contract of hiring are held to be lawful and not in contravention of the anti-trust or other prohibitive laws, a strike by a body of workmen in unison would be as lawful as is the same act by an individual workman, as long as the abandonment of the work was made for the purpose of securing better terms, and was not accompanied by acts of lawlessness, disorder or violence.1

But experience has taught the workmen that in the great majority of labor disputes, a peaceable withdrawal from work of even the whole body of workmen, without the use of means to prevent others from taking their places, fails utterly to accomplish the end they have in view, viz.: to force the employer to agree to the terms of employment which are demanded by the labor combination. The strikers, therefore, feel the need of resorting to various methods of consolidating the whole body of workmen against the employer or employers, which unquestionably in most cases obstruct the business of others, including the employers and the would-be employees, who are willing to work on the terms, which are proposed by the employers. Even if the strikers do not resort to acts of violence against the persons and property of employers, and against the workmen who are willing to take the places of the strikers,—and violence is the usual accompaniment of almost every extensive strike—they attempt to persuade others from engaging in work, and threaten them with all sorts of dangers, while they visit contumely upon them by calling them “scabs,” and by the use toward them of other opprobrious epithets. To secure their end, strikers are in the habit of stationing men—picketing or patrolling it is called,—in the neighborhood of the works or places of business of the employers, whose duty is thus to persuade and prevent by these different means other workmen from taking the places which they have themselves abandoned. These acts are so much akin to boycotting, that their legal character will be discussed in the next section in connection with the subject of boycotting.

But this is an appropriate place for the consideration of the law of conspiracy as it bears upon the question of the constitutional rights of workmen in the industrial warfare.

The long established definition of conspiracy, which is illegal and which is actionable civilly or may be punished criminally, is a combination of two or more persons to do an act unlawful in itself, or to do a lawful act by unlawful means. Under the old law of conspiracy, as indicated by this definition, it is not possible for one to conceive of any act of conspiracy, which would not be equally reprehensible, if done by a single individual. An individual cannot do a lawful act by unlawful means, any more than can a combination of two or more persons. But the ever growing disposition of persons, particularly in the prosecution of the modern industrial warfare, to combine their economic forces, in order to restrain another’s liberty of action, by means which were in themselves not unlawful, and to secure the doing of an act, which in itself is likewise lawful, revealed to the juristic mind the possibility of securing by combination an end, which was held to be against public policy, viz.: an undue restraint of trade and competition, without doing an unlawful act, or employing unlawful means in doing a lawful act. It became apparent, therefore, that the definition of conspiracy had to be enlarged, in order to include combinations, to do lawful acts by lawful means, where the motive or intent is unlawful. This enlargement of the scope of criminal conspiracy is not peculiar to labor disputes; but we are in this connection only concerned with its application to the subject under inquiry. It is not a criminal conspiracy, independently of modern statutes, for people, either as employers or employees, to combine their economic forces, in order to gain an economic advantage over their antagonists. That seems to be guaranteed to them, and to workmen in particular by modern statutes, provided they do not do any unlawful act, or a lawful act by unlawful means. But in several cases, the courts seemed to hold that, if the strike, ordered by the union or labor organization, be so conducted as to maliciously cripple the employers’ business, the combination would thereby become a criminal conspiracy, even though no unlawful act be done and no unlawful means be employed.1 In the Nebraska case, certain tailors agreed to strike on a certain day, and to return all work unfinished which had been cut out for them and given to them. The court found that the tailors were actuated by a malicious motive to injure the employer, and he was awarded damages for the malicious conspiracy. The other two cases grew out of the strike of the employees of the Northern Pacific Railroad. The railroad was at the time in the hands of a receiver. The receiver, Oakes, secured an injunction, against Arthur, the chief of the Brotherhood of Locomotive Engineers, and others, restraining them from combining to intimidate or advise employees of the railroad to strike in such a way as to cripple the business of the railroad. In the Circuit Court of Appeals, the injunction was changed so as to permit combinations to strike, and advising others to join with them, but restrained the use of intimidation, as well as the gratification of the malicious desire to cripple the business of the railroad. These railroad cases are complicated by the following facts: (1) That the railroad business is a business “affected with a public interest;” which rather places striking employees in the attitude of attacking the public interests, as well as the interests and property of the railroad, their employer; (2) that the railroad was engaged in interstate commerce, and hence the provisions of the interstate commerce act applied to and controlled the case, and (3) that the railroad was at the time in the hands of a receiver, an officer of the court, who was conducting the business of the railroad under the orders of the court, so that the combinations of strikers might have been treated as conspirators against the mandates of the court. But these facts do not seem to account for the declaration of the court that a combination, formed for the purpose of maliciously seeking to do injury to the business of an employer, is an unlawful conspiracy, even though the means employed were lawful. We must except these and the Nebraska cases, as authorities for this proposition as a general rule of the law of conspiracy.

One can understand how strikers may be guilty of a criminal conspiracy, because they have no satisfactory and just reason for striking, and only strike in order to gratify their malicious feelings towards the employer. But if the employees actually or professedly strike, in order to obtain an increase of wages for themselves or to better the terms and conditions of their employment, which they professedly have a right to do, the combination strike is not converted into an unlawful conspiracy, because in their effort to win their battle the workmen display a venomous or malicious desire, and endeavor, to cripple the employer’s business, as long as they do not do acts and employ means, which are in themselves unlawful. The intent to cripple the employer’s business is necessary to a successful strike. If the employees, who are dissatisfied with the terms of employment, give their employers ample notice of their intention, so that he may secure others to take their places, or select a time for striking when business is slack and the employer’s business will not be seriously incommoded thereby; it would be folly for them to expect success. In no kind of warfare, industrial or otherwise, is a general expected to give the warnings and notices, which the code of honor required in the duel. If the conditions of the antagonists in the economic warfare,—and that labor disputes do constitute acts of war, no one can reasonably deny—were equalized, as the duellists tried to do in the past, there may be some reason for requiring that the strikers show some consideration for the interests and the business of the employer. In view of the gross inequalities of the contestants, it is certainly not equitable to require such altruistic conduct on the part of striking employees. Nor would I consider a law to observe the constitutional guaranty of liberty, which would make in the case of employments of a strictly private character, a criminal or actionable conspiracy out of a combination of workmen to strike—where the motive was a lawful one, for example, to increase their wages, and the means employed were of a lawful character—simply because in conducting the strike they were actuated by a malicious or wilful intent to do injury to the business of the employer. As it was stated in the leading English case:1 “Of the general proposition, that certain kinds of conduct not criminal in any one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which, if it proceeded only from a single person, would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one’s own just rights. In the application of this undoubted principle it is necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public; and it may be observed in passing that as a rule it is the damage wrongfully done and not the conspiracy that is the gist of actions on the case for conspiracy. * * * But what is the definition of an illegal combination? It is an agreement by one or more to do an unlawful act or to do a lawful act by unlawful means. * * * Have the defendants combined to do an unlawful act? Have they combined to do a lawful act by unlawful means? * * * The unlawful act agreed to, if any, by the defendants must have been the intentional doing of some act to the detriment of the plaintiff’s business without just cause and excuse. * * * The truth is that the combination of capital [or labor] for purposes of trade and competition is a very different thing from such a combination of several persons against one, with a view to harm him, as falls under the head of an indictable conspiracy. There is no just cause or excuse in the latter class of cases. There is such a just cause or excuse in the former. There are cases in which the very fact of a combination is evidence of a design to do that which is hurtful without just cause—is evidence—to use a technical expression—of malice. But it is perfectly legitimate, as it seems to me, to combine capital [or labor] for the mere purposes of trade, for which capital [or labor] may, apart from combination, be legitimately used in trade.”1

But I think a sound and reasonable distinction can and should be made in this connection between the strikes, which occur in businesses of a strictly private character, and those which occur among the employees of a railroad, or of any other employer, whose business is “affected with a public interest.” If the cloak-makers of New York should go out on a strike against their employers, in order to secure better wages or shorter hours, even though the strike should be willfully begun at a time when the long continuance of the strike would work the greatest injury to the business of the employers, there is no consequent disturbance in general of the business and commerce of the city, so as to work injury to any one but the parties who are immediately concerned in the labor dispute. The general business of the city is in no way obstructed by the strike. But if the employees of an extensive railroad system, or of the street railways of a city, should strike, and they select the time of the year, when they could do irreparable injury, not only to the railroad companies, but likewise to the great public who rely upon these railroads or street railways for transportation of themselves or their goods, in the prosecution of business and commerce; a new element of injury has entered into the case, which is not to be found in the case of a strike of workmen engaged in a strictly private business. The widespread interests of the public in general are jeopardized by the persistence of a general strike of the railroad employees. If the railroad business is so far a business affected with a public interest, as that the State may interfere with the liberty of contract of the railroad, and establish a maximum charge for its services to its patrons—and of this proposition there can now be no doubt1 —then the contractual relation of the railroad or street railway with its employees, is sufficiently affected with a public interest to justify State regulation of the terms of service of such employees; and in the absence of such a regulation, to treat the employees as quasi-public officials, and to compel them, in their disputes with the railroads, to observe a reasonable regard for the public interests.

[1]These statutes have been repealed and labor organizations are now in England lawful combinations.

[2]Boot and shoe makers of Philadelphia (1806) and journeyman cord-wainers of Pittsburg (1811), both printed in pamphlet.

[1]People v. Melvin, 2 Wheeler Crim. Cas. 262; People v. Fisher, 14 Wend. 1.

[2]Com. v. Carlisle, Brightley, 36, 40; Com. v. Hunt, 4 Met. 111; Boston Glass Mfg. Co. v. Binney, 4 Pick. 425; Bowen v. Matheson, 14 Allen, 499; Master Stevedores v. Walsh, 2 Daly, 1; Carew v. Rutherford, 106 Mass. I, 13; Snow v. Wheeler, 113 Mass. 179.

[3]In the case of Master Stevedores v. Walsh, supra, the reader will find a most thorough exposition of the English cases and statutes, bearing on this subject. This case, however, only holds that it is not criminal for workmen to combine to control the terms of their own hiring, and expressly distinguishes such a combination from one in which the purpose is to control the business of the employer in other matters, not affecting the terms of their own hiring; as, for example, the prevention of the employment of non-union men.

[1]In Massachusetts, the statute reads “for the purpose of improving in any lawful manner the condition of any employees in any lawful trades or employments, either in respect to their employment,” etc. In Maryland, “to promote the well-being of their every-day life, and for mutual assistance in securing the most favorable conditions for the labor of their members,” etc. In Iowa, “for the regulation, by lawful means, of prices of labor, of hours’ work, and other matters, pertaining to industrial pursuits,” etc. In Michigan, “for the improvement of their several social and material interests, the regulation of their wages, the laws and conditions of their employment, the protection of their joint and individual rights in the prosecution of their trades or industrial avocations,” etc. In all of the statutes, provisions are made for aid to the sick and unemployed, and for death benefits, and other benevolent purposes, which in nowise concern us in the present connection.

[2]Acts of 1886, ch. 567.

[1]Master Stevedores v. Walsh, 2 Daly, 1; People ex rel. Baker v. Coachmen’s Union Ben. Assn., 24 N. Y. S. 114; s. c. 4 Misc. Rep. 424; Merschiem v. Musical Mut. Protective Union, 8 N. Y. S. 702; s. c. 24 Abb. N. C. 252; People ex rel. Deverell v. Musical Mut. Protective Union, 118 N. Y. 101.

[2]Perkins v. Heert, 39 N. Y. S. 223; 5 App. Div. 335; 158 N. Y. 306.

[3]§ 112.

[1]United States v. Debs, 62 Fed. 832; 64 Fed. Rep. 724; 65 Fed. 210; In re Debs, 158 U. S. 564.

[2]Moore v. Bennett, 140 Ill. 69.

[3]Milwaukee Masons & Builders’ Assn. v. Niezerowski, 95 Wis. 129. See, also, Mapstick v. Range, 9 Neb. 390.

[1]Longshore Printing & Pub. Co. v. Howell, 26 Oreg. 527.

[2]The Pennsylvania statute authorizes workmen who are members of a union to strike in combination, whenever the employer fails to come to the terms upon which the members are alone allowed by the rules of the union to work. The New Jersey statute declares it to be lawful “for any two or more persons to unite, combine, or bind by oath, covenant,” etc., “to persuade, advise, or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person or persons or corporations.” The Colorado legislature copied the New Jersey statute, and added a declaration that it shall be lawful for workmen to combine to secure increase of wages, shorter hours of labor, and to promote their welfare as workmen in any other way, provided they do not employ unlawful means, such as threats, boycott, violence, etc., to accomplish the purpose of the combination.

[3]Mayer v. Journeymen Stone Cutters Assn., 47 N. J. Eq. 519.

[1]But see Farmer’s Loan & Trust Co. v. Northern Pac. Ry. Co., 60 Fed. 803, in which it was held there was nothing in the Congressional authority (act of 1886) for the incorporation of national trades-union to authorize combinations and conspiracies of interstate railroad employees to quit in a body the service of the railroad, with the intent to embarrass the business of the railroad, and the ulterior purpose of enforcing their demands agaimst the employers. But see contra, Arthur v. Oakes, 63 Fed. 310; 11 C. C. A. 209.

[2]See to this effect, Cote v. Murphy, 159 Pa. St. 420.

[1]§ 104.

[1]See Longshore Printing & Pub. Co. v. Howell, 26 Oreg. 527; Arthur v. Oakes, 63 Fed. 310; 11 C. C. A. 209; Perkins v. Rogg, 28 Weekly Law Bul. 32; Rogers v. Evarts, 17 N. Y. Sup. 264. And in the last case, it is expressly held to be lawful for the union to sustain the strike, by providing out of its funds for the payment of the expenses of the strikers.

[1]Arthur v. Oakes, 63 Fed. 310, 317, 321; s. c. 11 C. C. A. 209; Farmers’ Trust Co, v. N. P. R. R., 60 Fed. 803; Mapstrick v. Range, 9 Neb. 390 (2 N. W. 739).

[1]Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. D. 598.

[1]I have in these quotations from the English case, interpolated, in brackets, the words “or labor,” in order to emphasize the soundness of this judicial explanation of conspiracy in its application to combinations of workmen in their contest with their employers. This case is more fully presented and discussed in a preceding section, § 110, p. 372, et seq. As an authority in England, this definition of conspiracy has been very materially modified by the more recent case of Allen v. Flood, (1898) A. C. 1, which is very fully set forth in the next section.

[1]See ante, §§ 96, 97.