is able to dictate terms or at least to insure respectful attention to his requests.

9. "STRIKE”—USUAL MEANS OF COMPULSION.

The Strike is the Usual Method of Attack.-The weapon of attack is almost always the same, and this brings us to the consideration of strikes and boycotts,-acts which the courts have sometimes sought to restrain or punish by injunctions and proceedings for contempt of court.

Strike Defined.-A strike is defined as an abstaining from work by a body of workmen to compel an increase in wages or to prevent a reduction, or to require the employer to grant some other form of demand. This means of bringing pressure to bear is so well recognized and legitimatized that unless violence or some ulterior purpose is disclosed, the courts will not interfere in the dispute.

10. RIGHT TO REFUSE TO DEAL.

Right to Refuse to Deal.-The test of liability, as has been well said in Cooke,3 turns on whether the act was the natural incident or outgrowth of some lawful relation. This lawful relation in this connection is the right to refuse to deal. The subject is a broad one and includes general commercial relations quite independent of labor questions or disputes; but both in logic and in law the nature and extent of the duty an employee owes to his employer, when a disagreement as to terms and conditions of service arises, must be measured by the latitude of lawful action that established principles allow.

While there has been a great divergence of opinion in different courts and jurisdictions, and even among individual members of the same judicial body-owing apparently to the personal attitude of the particular judge on labor questions-some uniformity is at last discernible, and general rules may now be deduced. The test of malice or malicious intent is gaining ground as a means of determining the legality of acts of labor organizations, when directed at third parties (Cooke, page 40). The same reasoning is implied to a considerable extent in the restrictive rights granted to the Federal Trade Commission covering "any unfair

3 "Combinations, Monopolies and Labor Unions," p. 15.

method of competition in commerce" (Federal Trade Commission Act, Section 5), for the element of unfairness must consist very largely in the intent of acts which taken together grow into the dignity of a "method"; but it is seen more distinctly in the provisions of Section 3 of the Clayton Law prohibiting "tying" or conditional contracts, leases or sales, and in other sections thereof which are intended to prevent or destroy monopolies and restraints of trade.

The presence of malice, however, should not be presumed merely because workmen individually or collectively exert themselves and assert every lawful right to better the conditions of their employment; nor should courts grant restraining orders intended to compel a continuation of the relationship of employer and employee; and this principle applies with particular force in cases that arise where the dispute is confined to the original parties and no element of general public interest enters in. Judge Harlan, speaking for the court, has well said:

"It would be an invasion of one's natural liberty to compel him to work for or to remain in the personal service of another. One who is placed under such restraint is in a condition of involuntary servitude-a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. * Relief of that character has always been regarded as impracticable.

The provisions of Section 6 of the Clayton Law negatives the judicial attitude that labor is an "article of commerce"; and probably the old line of decisions no longer apply in full measure. In a leading case, the modern rule-which is convincing, and should prevail—is thus set forth:

"The refusal to maintain trade relations with any individual is an inherent right which every person may exercise lawfully, for reasons he deems sufficient or for no reason whatever.

"It is a part of the liberty of action which the Constitutions, State and Federal, guarantee to the citizen."

4 Arthur v. Oakes, 65 Fed. 310, 317, 11 C. C. A. 209, 25 L. R. A. 414. 5 Locker v. American Tobacco Co., 121 N. Y. App. Div. 443, 106 N. Y. Supp. 115 (1907).

Such is the principle as to trade relations in general; and as we have seen, it is applicable wherever the act is the natural incident or outgrowth of any lawful relation, such as that of employer and employee.

A less indulgent attitude by the courts has developed into a different though not very clearly defined rule where sympathetic strikes and boycotts are disclosed as an outgrowth of labor disputes. The extreme in this effort to confine the employment of strike methods to pressure by the employee exerted directly upon and against the employer is found in decisions by the Massachusetts courts. Thus, in 1906, it was declared:

"Organized labor's right of coercion and compulsion is limited to strikes against persons with whom the organization has a trade dispute, or to put it in another way, we are of opinion that a strike against A, with whom the strikers have no trade dispute, to compel A to force B to yield to the strikers' demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best."

In the same year that court held:

"Such a strike would be a strike in the nature of a sympathetic strike, that is to say, it is a strike not to forward the common interests of the strikers, but to forward the interests of an individual employee in respect to a grievance between him and his employer where no contract of employment exists."

A like tendency is discernable in a Federal decision:

"All the employees had a right to quit their employment, but they had no right to combine to quit in order thereby to compel their employer to withdraw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation thus sought to be broken had no effect whatever on the character or reward of their service."8

6 Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A. N. S. 1067; 116 Am. St. Rep. 272. See a careful discussion of this case and kindred decisions in 42 American Law Review, 1908, page 706.

7 Reynolds v. Davis, 198 Mass. 294 (1908), 84 N. E. 457, 17 L. R. A. N. S. 162.

8 Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 803, 818 (1894).

And in a leading Anti-trust decision in 1893, District Judge Speer took occasion to reflect in severe terms upon an organized body of railroad employees who repudiated their contract of employment, "because of real or alleged grievances, which some other person or corporation, not a party to the contract, inflicts or is alleged to inflict, not upon a party to the contract but upon somebody else."

Cases in large numbers can be found which contain the foregoing doctrine. It was not passed upon directly in the Debs case,10 since the Supreme Court was contented to base its finding therein upon the element of restraint of interstate trade appearing in that situation; and in Loewe v. Lawler," while the doctrine was in the main adopted and applied, it was so quickly overruled by Congress through recent Anti-trust laws that it can hardly be said to have gained a foothold in the law of the land, as acknowledged and declared by that court. The New York Court of Appeals, in a leading case where the decision, however, does not necessarily rest upon this ground, states the proposition contained in the foregoing decision and refutes it. As to the doctrine that "if the motive be unlawful or be not for the good of the organization or some of its members, but prompted wholly by malice and a desire to injure others, then an act that would be otherwise legal becomes unlawful," the court says:

"I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short of absurd to say that the every day acts of the business world, apparently within the domain of competition, may be either lawful or unlawful, according to the motive of the actor."12

The fact that the treatment of this subject reflects the sentiments and no doubt indicates the environment and predelictions of the individual judge, is shown by the expression contained in a Massachusetts case where the right of an individual to pursue his calling without restriction arose:

"Speaking generally, however, competition in business

9 Waterhouse v. Comer, 55 Fed. 157.

10 158 U. S. 564, 15 Sup. Ct. 900, 39 Fed. 1092.

II Danbury Hat Case, 235 U. S. 522.

12 National Protective Assoc. v. Cumming, 170 N. Y. 315, 326, 63 N. E. 369, 371, 58 S. R. A. 135, 140, 88 Am. St. Rep. p. 648 (1902).

is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly."13

This case and doctrine is mentioned, approved and followed by Justice Holmes (now of the United States Supreme Court) in Pickett v. Walsh (192 Mass. 572). The restrictive doctrine, in opposition to that of wide latitude for action by organized labor, is in general found to prevail in the Federal courts, though their decisions are frequently based upon the public rights those tribunals undertook to enforce by way of the Anti-trust laws against restraint of trade and monopoly; and this tendency is particularly apparent where strikes by the employees of railroads are concerned. Some of the earlier of the modern cases turn upon the statutes against the obstruction of the mails; but the tendency to limit the right to refuse to deal, is apparent throughout. At least, such an impression is conveyed by perusal of the cases as a whole.

What attitude Congress assumed, and which side it undertook to defend in this conflict of judicial views upon the respective rights of parties involved in labor disputes, is indicated plainly in House Report No. 612, Sixty-second Congress, where Mr. Clayton, for the Committee on Judiciary, states:

"The necessity for legislation concerning them arises out of the divergent views which the courts have expressed on the subject and the difference between courts in the application of recognized views. It may be proper to notice, in passing, that the State courts furnish precedents frequently for action by the Federal courts, and vice versa, so that a pernicious rule or an error in one jurisdiction is quickly adopted by the other. It is not contended that either the Federal or the State courts have stood alone in any of the precedents which are disapproved."

The provisions suggested to overcome this "pernicious rule" (which term is applied to the doctrine limiting the right of organized labor to "refuse to deal"), are embodied in those sections of the Clayton Law we shall later consider in detail. It will there appear that Congress has spoken in the statute as plainly as the committee has recorded its mind in the report.

13 Martell v. White, 185 Mass. 255, 260, 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. Rep. 341 (1904):