or not to do that which otherwise he would have done or left undone,” declared Vice Chancellor Green.1 The Massachusetts,2 Pennsylvania, and other courts take a similar view. Actual threats are not necessary, in the view of some. Judge Andrews declares on this: It should be remembered . . . that to constitute intimidation it is not necessary that there should be any direct threat, still less any actual act of violence. It is enough that the mere attitude assumed by the defendants is intimidating. And this may be shown by all the circumstances in the case, by the methods of the defendants, their circulars, their numbers, their devices.1 That the imposition of fines on members of the labor organizations who refuse to boycott third parties constitutes coercion is held by some of the courts in Vermont,5 Indiana, and elsewhere. Not only the actual coercive or intimidating measures, but threats to adopt such measures, are considered as illegal means by the majority of the judges, and "threats" also cover a multitude of deeds. The Cyclopædia of Law and Procedure concludes, citing Boutwell case: It is clear that every one has a right to withdraw patronage when he pleases, but equally clear that he has no right to employ threats or intimidation to divert the patronage of another.7 A Michigan Court thus summarizes: The boycott condemned by law is not alone that accompanied by violence and threats of violence, but that where the means used are threatening in their nature, and intended and naturally tend to overcome by fear of loss of property the will of others, and compel them to do things they could not otherwise do.8 The use of the word "boycott" is in itself a threat wrote the judge in an early Pennsylvania case (Brace vs. Evans, Pa., 1888). "In popular acceptation it is an organized effort to exclude a person from business relations with others by persuasion, intimidation and other acts which tend to violence, and thereby coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs." 9 1 Barr us. Essex, N.J., 1891, 30 Atl. 881, 889. 2 Plant vs. Woods, Mass., 1900. Purvis vs. United Brotherhood, Pa., 1906. Foster vs. Retail Clerks' etc., N.Y., 1902, 78 N.Y. Supp. 860, 863. Italics are the author's. Boutwell vs. Marr, Vt., 1899. Jackson vs. Stanfield, Ind., 1893. 7 Italics are the author's. Beck vs. Teamsters' Union, Mich., 1898, 77 N.W. 13, 24. Italics are the author's. 9 5 Pa. Co. Ct. 163, 171. Italics are the author's. Threats will often be read into language which in form is mere persuasion. The kind of threat it is necessary to make in order to render the act illegal is not stated in many of the decisions. Some contend that the threat must be to do an unlawful act. A Tennessee Court concludes: In law a threat is a declaration of an intention or determination to injure another by the commission of some unlawful act. . . . If the act intended to be done is not lawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense.1 Many of the courts, indeed, have shown great skill in reading into mere requests this illegal deed of threatening. In Plant vs. Woods, for instance (Mass., 1900), the workers on a strike visited the employers of other union men to inquire whether the former would use their good services in having the men reinstated. During the conversation, the workers were asked whether it would mean trouble, if the request was not granted, and the men replied that it might. This was a threat, in the eyes of the court. Violence, of course, is considered an illegal means. "The labor and skill of the workmen; the equipment of the farmer; the investment of commerce are all, in equal sense, commerce. If men, by overt acts of violence, destroy either, they are guilty of crime." 2 FREEDOM OF SPEECH AND PRESS Boycotters have often contended that to prevent them from publishing notices of the boycotts, and otherwise announcing them in print, is an infringement of the freedom of the press, granted by the Constitution. The courts, however, have for the most part held that when such publication is one of the means employed in carrying out an illegal purpose that of boycotting the free-speech argument is without merit. It is also contended that no right is absolute, and that, when its unbridled exercise infringes on the equal rights of others, and deprives them of such rights as that of acquiring, possessing and protecting property, the law can and should interfere. In granting the injunction against Mr. Gompers, Judge Gouly examined the contention of the defendants that, if plaintiff had any redress for such publication, it was for action for the libel, and that equity will not enjoin a libel. He added: All this would have merit if the act of the defendants in making such publication stood alone, unconnected with other conduct both preceding and following it. But it is not an isolated fact; according to the allegations of the bill and the supporting affidavits, it is an act in a conspiracy to destroy 1 Payne vs. R.R., Tenn., 1884, 49 Am. Rep. 666, 674. plaintiff's business, an act which has a definite meaning and instruction to those associated with defendants and an act which is the basis of conduct on the part of defendant's associates which unlawfully interferes with plaintiff's right of freedom to trade with those whom he pleases. The argument of counsel is fully answered by the language of Mr. Justice Holmes in the case of Aikens vs. Wisconsin, 195 U.S. 194: "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and, if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." 1 The same general principle, though not so stringent an application thereof, was held by Judge Robb of the Court of Appeals, in affirming a portion of the injunction.2 "While the right of free speech is guaranteed to all citizens by the Constitution," holds a California judge (Jordahl vs. Hayda, Cal., 1905), "there is also guaranteed to them by the same Constitution the right 'of acquiring, possessing and protecting property and obtaining safety and happiness' (see Art. 1, Sect. I); . . . and it is a maxim of jurisprudence prescribed by the statute law of this State that one must use his rights so as not to infringe upon the rights of another. (Civil Code, Sect. 3514.)" "It would be strange indeed," wrote Judge Taft, "if that right (to assemble and free speech) could be used to sustain the carrying out of such an unlawful and criminal conspiracy as we have seen this to be. . . . If the obstruction to the operation of the road by the receiver was unlawful and malicious, it is not less contemptible because the instrument which he used to effect it was his tongue rather than his hand." "3 1 Buck's Stove and Range Co. vs. A. F. of L., Sup. Ct., D. of C., 1907, 70 Al. L. J. 8, 10. Italics are the author's. 2 A. F. of L. vs. Buck's Stove and Range Co., Ct. of Ap., D. of C. 1909. Italics are the author's. Thomas vs. Cinn., N. O. and T. P. Ry. Co., U. S. Circ. Ct., Ohio, 1894, 62 Fed. 803, 822. VII TENDENCIES TOWARD FEDERAL CONTROL OF COMMERCE AND INDUSTRY CONSTITUTIONAL ASPECTS OF FEDERAL REGULATION OF BUSINESS 1 BY JAMES PARKER HALL, DEAN OF THE COLLEGE OF LAW, CHICAGO UNIVERSITY (From the Journal of Political Economy, May, 1912) It is a consequence of American theories of constitutional government that all important legislation affecting property rights and economic opportunity must at some stage run the gauntlet of professional legal opinion in the courts. It, of course, does not follow that such opinion will necessarily or properly be adverse to such proposals merely because they are novel, nor that the process of obtaining this opinion should be unduly beset by delay and uncertainty. Nor is it meant to arrogate to courts any more than to legislatures, nor to lawyers any more than to sociologists, any permanent or authoritative control over the course of social evolution. Courts and constitutions yield and should yield to the pressure of actual economic and social conditions, just as do the other organs of any government properly responsible to the movements of deliberate public opinion. For the purposes of the present discussion, however, I shall assume the validity of the construction now placed upon the federal Constitution by the courts, and shall briefly inquire what warrant this would give for such regulation of business by the federal government as has been proposed in recent discussion. At the risk of repeating what is doubtless already well understood, let me first recall that the Constitution divides all powers of government between the states and the United States, save a few which it prohibits altogether, like that of taxing exports. It accomplishes this by granting to the United States certain enumerated powers, 1 A paper read before the Western Economic Society at Chicago, March 1, 1912. which, with those fairly to be implied from them, mark the limits within which the federal government may act. All of the non-granted powers of government are reserved to the states. Now if Congress wishes effectively to regulate an industry like the steel business, or a corporation like the International Harvester Company, it must bring its legislation, in principle and in details, within the scope of the powers granted to it by the Constitution, and must not trespass upon regulative powers reserved to the states. This is one of the embarrassments inherent in a federal form of government like ours, which must be met as best it may. The powers upon which the United States must chiefly depend, should it undertake such a regulation of business, are the power to regulate commerce among the states and with foreign nations, the power of taxation, and perhaps the power over the postal service. The power to regulate commerce among the states, it will be observed, falls considerably short of the power to regulate business in general. In the first place it is confined to "commerce," and in the second place to commerce "among the states." In colloquial speech "commerce" is frequently used as synonymous with business, but in the Constitution it is well settled that " commerce" is confined to those forms of business that involve intercourse or are fairly incidental thereto. Thus defined, it includes all activities substantially affecting the transportation of any kind of property or property symbol, the transmission of intelligence in any form, and all modes of personal travel. Doubtless the transmission of any form of energy will also be included when the case arises. The phrases "among the states" and "with foreign nations" still further confine the action of Congress to such intercourse as crosses state lines. Intercourse between places in the same state, which does not at any point pass outside, is not interstate or foreign commerce. The courts have been fairly liberal in including within the notion of "intercourse" activities that are incidental to the actual intercourse or transmission itself. Thus, the sale or the solicitation of the sale of commodities for the purpose of transmission between the states, or their sale for the first time in the original packages after transmission, have been held to be part of interstate commerce itself. But the production of commodities, whether by manufacturing, agriculture, mining, or fishing, has repeatedly been said to be no part of such commerce. The interstate transportation or marketing of goods may thus be controlled by Congress (the Sherman Anti-Trust law being an instance of such control), but is there any method by which it might indirectly also control capitalization and production? I venture to suggest that there are several ways in which, if desired by Congress, this could be done. In the first place the power to regulate interstate commerce is |