CHAPTER XII

COMBINATIONS IN LABOR MATTERS

We have now gone over the history of modern legislation in the two great fields of property and personal liberty, and we have generally found that the same principles of jurisprudence govern both.  So shall we now find when we come to combinations that there is no difference or distinction in the law between combinations of capital and combinations of individual faculties.  In both fields a “combine” is obnoxious, as the untutored mind instinctively feels.  Combinations may, of course, be lawful; but the fact that no actually criminal purpose or act can be found against them is not conclusive of their legality.  At the risk of wearying the reader I would reiterate my belief that this was one of the greatest juristic achievements of the English common law; and that the question whether it shall be all done away with or retained is the most momentous public question now before us in industrial and social matters.[1] Whether, on the one hand, Standard Oil combinations shall be permitted to the point of universal monopoly of trade and opportunity; or, on the other, close unions built up, even by legislation itself, to an equally impregnable position of monopoly of opportunity, or so as to become a universal privileged guild—­are questions to be determined by the same principles; and equally momentous to the future of our republic and of human society as now constituted.  And before passing to a review of the legislation itself, I would lay down the principle which I believe to be the one which will ultimately be found to be the controlling test:  that of intent.  The effect (often proposed as the test) is really immaterial as determining the illegality of the combination, except so far as it may be evidence of the probable intention of the participators at its inception.

[Footnote 1:  Professor Dicey, I find, in his recent book, “Law and Opinion in England,” opens this subject with a statement equally strong (Appendix, note 1, pp. 465-6).]

For the early English conspiracies were by no means necessarily or usually aimed at the commission of some definite crime; they were rather described to be the conspiracies of great lords for the general “oppression” of a weaker neighbor, for which he sought refuge or protection in the court of chancery.  Now, general oppression or wrongdoing, the exclusion from land or labor or property or trade, by a powerful combination, is precisely the moral injury suffered in modern boycotts when there is no actual crime committed.  Indeed, one of the earliest kinds of conspiracy expressly mentioned and described in the English statutes is a conspiracy for the maintenance of lawsuits, which by the very definition of the thing must be a combination for an end not in itself unlawful.  The American courts have been curiously obscure or vacillating on this point.  With their too general