The young and struggling trade unions of the early eighties saw only the good side of incorporation without its pitfalls; their subsequent experience with courts converted them from exponents into ardent opponents of incorporation and of what Foster termed “legalized arbitration.”

During the eighties there was much legislation applicable to labor disputes.  The first laws against boycotting and blacklisting and the first laws which prohibited discrimination against members who belonged to a union were passed during this decade.  At this time also were passed the first laws to promote voluntary arbitration and most of the laws which allowed unions to incorporate.  Only in New York and Maryland were the conspiracy laws repealed.  Four States enacted such laws and many States passed laws against intimidation.  Statutes, however, played at that time, as they do now, but a secondary role.  The only statute which proved of much importance was the Sherman Anti-Trust Act.  When Congress passed this act in 1890, few people thought it had application to labor unions.  In 1893-1894, as we shall see, however, this act was successfully invoked in several labor controversies, notably in the Debs case.

The bitterness of the industrial struggle during the eighties made it inevitable that the labor movement should acquire an extensive police and court record.  It was during that decade that charges like “inciting to riot,” “obstructing the streets,” “intimidation,” and “trespass” were first extensively used in connection with labor disputes.  Convictions were frequent and penalties often severe.  What attitude the courts at that time took toward labor violence was shown most strikingly, even if in too extreme a form to be entirely typical, in the case of the Chicago anarchists.[30]

But the significance of the eighties in the development of relations of the courts to organized labor came not from these cases which were, after all, nothing but ordinary police cases magnified to an unusual degree by the intensity of the industrial struggle and by the excited state of public opinion, but in the new lease of life to the doctrine of conspiracy as affecting labor disputes.  During the eighties and nineties there seemed to have been more conspiracy cases than during all the rest of the century.  It was especially in 1886 and 1887 that organized labor found court interference a factor.  At this time, as we saw, there was also passed voluminous state legislation strengthening the application of the common law doctrine of conspiracy to labor disputes.  The conviction of the New York boycotters in 1886 and many similar convictions, though less widely known, of participants in strikes and boycotts were obtained upon this ground.