A conspiracy is indictable to deter a man from retaining and employing an attorney to prosecute or defend his cause, under penalty of being published as a "scab," and having his name held up to public ridicule and contempt, because the attorney did not belong to a particular bar association; or to deter employers in their selection and employment of particular workmen by violence, threats, coercion or intimidation; or for journeymen to combine to prevent the employment of apprentices through intimidating their employers is indictable.'

§ 74. Development of the Doctrine of Conspiracy in Trade Combinations. In England the matter is now regulated largely by statute. In this country, in 1806, there was a trial of certain boot and shoe makers of Philadelphia, before the mayor of that city, for conspiring to increase the rates of wages, and to prevent others from working at less wages, but no general principle was distinctly asserted, unless it was, that what each individual might lawfully do became criminal when each became "bound down by their agreements, and pledged by mutual engagements, to persist in it, however contrary to their own judgment." And it was said "the continuance in improper conduct may therefore well be attributed to the combination." In 1809, in the Journeymen Cordwainers of New York, the mayor expressly omitted to decide whether an agreement not to work except for certain wages would be indictable per se.1

In a habeas corpus case, Com. v. Carlisle, Brightly (Pa.) 36, in 1821, before Judge Gibson of the Supreme Court, he held that while the mere act of combining to change the price of labor is, perhaps, evidence of impropriety of intention, it is not conclusive, for if the accused can show that the object was not to undervalue labor but to foil their antagonists in an attempt to assign to it, by surreptitious means, a value which it would not otherwise have, they will make out a good defense. Accordingly a combination of employers to depress the wages of journeymen below what they should be, if there was no recurrence to artificial means by either

'State v. Stewart, 59 Vt. 273; People v. Fisher, 14 Wend. 9; Rex v. Ferguson, 2 Starke, 489; Reg. v. Hewitt, 5 Cox, C. C. 162; Walsby v. Anley, 3 L. T. N. S. 666.

$1 Select Cases New York, p. 111; People v. Melvin, 2 Wheeler, Crim. Cas.

side, is criminal. The motive may be as important to induce as to avoid an inference of criminality. After the Court for the Correction of Errors, of New York, had reversed, by the casting vote of the President, the judgment of the Supreme Court in Lambert v. People, 7 Cow. 166, 9 Cow. 578, declaring by such reversal that in a conspiracy to commit a criminal act, the means need not be stated, but if the act is not illegal in itself, the means must appear to be so, and leaving doubtful the law as to what constituted a conspiracy to inflict mere private injury, not affecting the public, the Legislature having defined criminal conspiracy, and among other things declared it covered a combination to commit an act injurious to trade or commerce, it was held in People v. Fisher, 14 Wend. 9, that a body of journeymen shoemakers violated the statute by combining for the purpose of preventing any other workmen, whether belonging to their organization or not, from working below prices fixed by them. Here the conspiracy reached others outside the society and indeed it prevented the master, under penalty of being deserted by the associated workmen, from employing anyone at less wages, and it excluded other workmen from accepting work at less prices.

A combination producing such a result was thus characterized in Com. v. Carlisle, Brightly (Pa.) 36. Whenever the act, agreed among several to be done, must necessarily injure the public or oppress individuals, by enabling those confederating to exercise an unlawful power, such action taking effect either in extortion or mischief upon such individuals or the public, constitutes a conspiracy.'

It is the duty of the state to protect the individual citizen against the combined power of numbers to injure him in his legitimate business pursuits.

In Com. v. Hunt, 4 Met. 111, Chief Justice Shaw did not regard the union of workmen, under an agreement not to accept employment from one who would take into his service others than

1Rex v. Kenrick, 5 Q. B. 49; State v. Stewart, 4 New Eng. Rep. 378, 59 Vt. 273; Com. v. Carlisle, Brightly (Pa.) 36; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; State v. Donaldson, 32 N. J. L. 151; State v. Cole, 39 N. J. L. 324; State v. Hinckling, 41 N. J. L. 208; Reg. v. Warburton, L. R. 1 C. C. 274; Johnson v. State, 26 N. J. L. 313; Johnson v. State, 29 N. J. L. 453; State v. Burnham, 15 N. H. 396; State v. Parker, 43 N. H. 83. State v. Rowley, 12 Conn. 112; Reg. v. Duffield, 5 Cox, C. C. 432.

members of the association, or retain them after notice of the agreement, as in itself illegal, unless improper purposes were contemplated by the union. Such an agreement he held might be legal or illegal as its purpose was either to secure an advancement in the social or business life of its members, or to secure power for purposes of injustice or oppression. It was stated that if a large number of men, engaged for a fixed time, should combine together to violate their contracts, and quit their employment together, it would be a conspiracy to do an unlawful act, which if done by one person, would give a civil action. It was considered that an association may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another; that is, to diminish his gains and profits, and yet so far from being criminal or unlawful, the object may be highly meritorious and public spirited. The legality of such an association was therefore held to depend upon the means to be used for its accomplishment. If it is carried into effect by fair and honorable or lawful means, it is to say the least, innocent; if by falsehood or force it may be stamped with the character of conspiracy. The question of criminality will be determined by the means, and they must be stated in the indictment. In Hartford Carpet Weavers Case (Super. Ct. Conn. 1836), and in Master Stevedores Asso. v. Walsh, 2 Daly, 5, 1867, the right to regulate the price at which members of the union should work was recognized, and the same right was recognized on the part of employers to fix the wages they would pay. In the latter case the penalty was enforced against a member of the association.

In State v. Donaldson, 32 N. J. L. 151, 1867, notice was given to the employer by the confederated workman that they would quit his service unless two designated workmen were discharged. And the threat was carried into effect. This was held an unlawful combination, as attempting to dictate to the employer whom he should employ and whom discharge. It was declared to be an attempt to control the business of the employer. The case of Com. v. Hunt, 4 Met. 111, is in the course of the opinion in State v. Donaldson approved, as in that case no purpose was shown to exercise such control over the employer, but simply to control its own members. The ruling in Com. v. Curren, 3 Pittsb. 143, in 1869,

also denied the right of combined employés to dictate who shall be employed or discharged.

§ 75. Statutes in England and the United States Regarding Combinations among Workmen.-In England, the Act of 1875, Concerning Conspiracy and for the Protection of Private Property, declares that "an agreement or combination of two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen, shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime." § 3.

The law is now well settled that workmen have a right to combine for their own protection, and to obtain such wages as they may themselves, after consideration, agree to insist upon receiving for their work;' and while they are perfectly free from engagement, and at liberty to exercise the option of entering into employ or not, they have a right to agree among themselves not to accept any employ unless they can secure a certain rate of wages.'

Associations of workingmen for mutual protection and improvement under the names of "Friendly Societies" are made quasi corporate bodies, and their regulations and rules are often the test of the legality of their organization and existence.

In Farrer v. Close, L. R. 4 Q. B. 612, Cockburn, Ch. J., and Mellor, J., held that the evidence in this case showed that the rules in practice are applied so as to render the funds of the society in question available for the purpose of supporting strikes, by allowing sums of money to workmen in order to prevent them from seeking work in districts where men are on a strike, and also by giving assistance to other branch associations in whose districts strikes are going on; that these purposes are not of a friendly society, but of a trade's union, and as such, are illegal as being in restraint of trade, according to Hornby v. Close, L. R. 2 Q. B. 153, and that the justices trying the case were right in so ruling.

'Reg. v. Rowlands, 5 Cox, C. C. 436, 460.

Reg. v. Duffield, 5 Cox, C. C. 404, 431; Reg. v. Hibbert, 13 Cox, C. C. 82; Com. v. Hunt, 4 Met. 111, 130; State v. Donaldson, 32 N. J. L. 151; Carey v. Rutherford, 106 Mass. 1; Master Stevedores Asso. v. Walsh, 2 Daly, 1.

Cockburn, J., said: "The only question in the case was whether a certain society called the Amalgamated Society of Carpenters and Joiners, is essentially a 'friendly society' so called, so as to be within the protection of 18 and 19 Vict. chap. 63, §§ 24 and 44, and that the question turns on the construction to be placed on certain rules of the society, especially § 7 of Rule 18, that any free or non-free member or members leaving his or their employment, under circumstances satisfactory to the branch, or executive council, shall be entitled to the sum of 158. per week.' The society must be treated, not according to what it professes to be, but according to what it practically is; otherwise the society might be framing its rules ambiguously, so as to be capable of being applied to carry out the purposes of a friendly society, or those of a trade's union, and while carrying on its operations as a trade's union evade the law and obtain advantages secured by statute to a friendly society, which would be refused to it if its true character were known."

Hannen, J., said: "Strikes are not necessarily illegal. A strike is properly defined as 'a simultaneous cessation of work on the part of the workmen,' and its legality or illegality must depend upon the means by which it is enforced and on its objects. No doubt the trade of the employer is restrained when workmen decline to take the wages which he is willing to give; but it must be remembered that the men are contractors as well as the employers, and it would be an odd way of promoting the freedom of trade to hold it an illegal purpose on their part to endeavor, out of their own savings, to put themselves in a better position to get what they think is a fair price for their labor. The question whether a society has been established for illegal purposes or not ought, with rare exceptions, to be decided by the rules themselves which declare the objects of the society and speak the voices of all its members. To explain and interpret these rules by vague general evidence of what may be sometimes done, is objectionable on principle as explaining written documents by loose parol evidence as to the construction put upon them by different officers, and as such construction might vary from time to time, the result would be to throw the proper meaning and effect of the rules into the utmost uncertainty and confusion.