a dispute between one set of employers and a particular union was adjusted in accordance with the demands of the combination;1 and, finally, they have condemned a combination "aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes."2 These are the limitations which the courts of the United States, interpreting the Sherman act, have imposed upon the activities of workmen in combination. Which of these prohibitions is novel? Which of them has not been applied to every form of combination under principles of law recognized and approved by English-speaking people since the memory of man runneth not to the contrary? Which of these prohibitions could now be removed without irreparable injury to private rights and public interest? Which of them could be withdrawn without encouraging the possibility of disorder and, on occasion, producing far-reaching public distress? What right which any organization may exercise with benefit to its members and without prejudice to the essential necessity of maintaining uninterrupted communication between the states and without impairing the constitutional freedom of employer and employee is denied or menaced by any decision under the act? What, in last analysis, do these decisions forbid but the effort of the many, by unlawful means or for an unlawful purpose, to compel the one to do their bidding, "a proceeding outside of the law, in defiance of the law, and in spirit and effect an attempt to strip from one that has that which of right belongs to him-the full and undisturbed use and enjoyment of his own" ?3 But it is finally urged that by their very nature and methods, by the fact that they are not conducted for profit, and because they dispose of physical energy or skill and not completed commodities, labor organizations ought to be excluded from inhibitions against restraints of trade. Surely the theory that such combinations of labor cannot be * U.S. v. Workingmen's Amalgamated Council, 54 Fed. 994, 57 Fed. 85. a Loewe v. Lawler, 208 U.S. 300. 3 Mr. Justice Brewer to the American Bar Association, "The Movement of Coercion." restraints of trade is destroyed by the fact that they frequently have been and are found physically obstructing as well as economically restraining and even preventing the movement of trade and aggressively trespassing upon the liberty of the trader. Nor is the possession of capital stock or the conduct of an organization for profit any standard by which to determine the capacity of a combination to stop the movement of commerce. From the Debs strike to the McNamara conspiracy, it has again and again been practically demonstrated that the most potent force to disrupt communication between cities and states, essential not only to the continued employment of labor but to the transmission and diffusion of the necessities of life, is a voluntary combination of men absolutely devoted to a single purpose the interruption of commercial intercourse by any means their ingenuity devises or their courage risks until the demands of the combination are conceded. What possession of man has ever been privileged to be the instrument of illegal action, whether he use his land or his chattel, his tongue or his hand, the skill of his body, the cunning of his thought, his physical energy, or his material possessions, to evade the law or to violate it? No possession of the lawless is or should be beyond the condemnation of the law or the reach of its executors. The giving or withholding of the physical energy of man to work unlawful injury to others is and must be condemned as strongly as the giving or withholding of any external possession for the same purpose. Let it be granted that the combination of labor is an association of human energy lawfully to protect the conditions of its disposal by concerted action: so long as it possesses and exercises the power to work harm, public and private interest demands protection against its possible action. 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 Aikens v. Wisconsin, 195 U.S. 194, Mr. Justice Holmes. Whether you approve or disapprove of the Sherman act in its present form, you must recognize that its purpose, and more than that, the very object of the constitutional power from which it springs, is effectually to protect trade and transportation between the states, and the persons engaged therein, with a shield of national power. To attain this end, the law must provide against every source of attack and every kind of an assailant. It must meet all comers at every point. To preserve the freedom of interstate commerce, it must regulate every form of combination possessing the power or intention to trespass upon it. It makes no difference whether it be threatened with obstructions physical or economic, a mob, a monopoly, or a sandbank, an association of individuals or the solemn enactments of a sovereign state, against every subterfuge the wit of man can devise, against every force the power of man can employ, it is no less the right than the duty of Congress to protect intercourse between the states. WASHINGTON, D.C. JAMES A. EMERY THE CONSERVATION OF BUSINESS OPPORTUNITY' Mr. George W. Perkins has pithily put the case for large business and industrial combination in the form of the following questions: First: Has labor been benefited? Has labor been given steadier employment and higher wages? Second: Has the consumer been benefited? Has the consumer been given a better article, and at a lower price? Third: Have ways and means been devised and capital provided for saving and utilizing waste products which could not have been done by similar concerns? Fourth: Has our financial fabric been strengthened? Has more stability been given to business and better security to the investments in which the people have placed their money? Fifth: Have our foreign trade balances been expanded? Have we put our nation in the way of having stronger weapons for use in our struggle for our full share of the commerce of the world? To each of Mr. Perkins' questions, the answer, of course, is pretty generally "Yes." Notwithstanding Mr. Perkins' catechism, however, that tangle of economic, political, and social questions, which, for lack of a better name, we loosely call the trust problem, still vexes us, unsolved. Plainly, the important factor in the trust problem today is something that Mr. Perkins' catechism leaves untouched. At this juncture, the process of elimination may help us. As the answers to Mr. Perkins' questions show, the ultimate consumer, the employee, and the investor in the securities of the so-called trusts have, by and large, greatly benefited. The trust problem today, therefore, must depend for its solution upon some element lying outside these three classes, and engaged in what, for convenience, may be called "independent business." In Mr. Perkins' own fashion, this factor may be brought into view by putting the following questions: Has combination unreasonably narrowed the field of "independent business"? Has it made it harder for men of enterprise and ability to engage in business on their own account? 1 A paper read before the Western Economic Society, at Chicago, March 2, 1912. The conservation of business opportunity is today the avowed object of our national policy in respect to large business. "The real purpose of the Sherman law," says Mr. Wickersham, the attorney-general of the United States, "is to compel fair trade, to protect the average business man from injury due to unfair methods of competition. It is meant to keep the highways of commerce open to all, big and little, rich and poor, on the same terms. Therein lies its greatest ethical value.” How shall business opportunity be conserved? How shall trade be kept "fair"? How shall "the average business man be protected from injury due to unfair methods of competition"? How shall the "highways of commerce be kept open to all, big and little, rich and poor, on the same terms"? As Mr. Wickersham well says, these questions touch the "greatest ethical value.” They lie at the heart of the present industrial situation. Minor evils such as imperfect corporation laws, indefiniteness in the interpretation of the Sherman Anti-Trust act, and improper secrecy in corporate acts affecting investors and the state-may conceivably be relieved by federal incorporation acts, federal licenses for corporations, greater publicity for corporate transactions, and federal commissions for regulating corporations. But not until these ethical questions are answered can the trust problem ever be solved. The law cannot answer these questions. Even the word "unfair," as applied to trade or competition, is outside the vocabulary and beyond the conception of the law. So Lord Justice Bowen, giving judgment in the Court of Appeals of Great Britain,2 says: We were told that competition ceases to be the lawful exercise of trade, and so to be the lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been "unfair." This seems to assume that, apart from fraud, intimidation, molestation, or obstruction of some other personal right in rem or in personam, there is some natural standard of "fairness" or "reasonableness"-to be determined by the internal consciousness of "The Enforcement of the Anti-Trust Law," Century Magazine, February, 1912. 2 Mogul Steamship Company v. McGregor, Gow & Company (1889), 23 Q.B.D. 598, Court of Appeals. |