Labor in its relations to law : four lectures delivered at the Plymouth School of Ethics, July 1895

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II Two Public Questions Concerning Labor Prominent To-day

Our last lecture attempted to give a bird's-eye view of the general subject of labor in its relation to law, sufficient to enable us now to pick out what are the important points, the key-positions, in the country we have surveyed ; and I may say at once that they appear to be two in number : First, the general question of the labor contract, and how far the law shall restrain, modify, or amend it ; second, the question of the acts and remedies permissible both to employers and employees in their effort to better their position relative to each other, and how far the State shall restrain, sanction, or enforce these.

The Labor Contract, its History.

I think to-day it will be quite enough if we endeavor to consider the labor contract. Now, first I wish to call your attention to the fact that it is now generally admitted by radicals as well as conservatives, that the great story of the historical development of the labor question has been that from artificial control to freedom of contract. I do not wish to prejudice you with any notion that this freedom of contract is now, or in the future, necessarily, a thing to be preserved ; but it is necessary for us to note this great historical fact.

State Control Asked.

Many labor leaders are again asking for an effectual control of the labor contract or relation, and this not only as it was controlled in old times in the interest of the laborer, by the guilds, that is, not now by trades-unions or combined action alone, but by the direct legislation of the State. That is, they wish to substitute the will of a presumable majority, or at least of a majority of those persons who for any year happen to be members of the State legislature, for the individual judgment of the citizen. They wish to prohibit the right of the employee to make his own contract with the employer, and this not alone separately, but as applied to what we have called collective bargaining; that is, even to the contracts of all employers in a given trade with all the employees in such trade embodied in a labor union. I repeat that I do not now wish to consider whether this is wise or not, whether it is beneficial to the employee or not, whether on the whole it is for the greatest good of the greatest number or not ; but I do wish strongly to point out that this is a distinct change of sides and a surrender of the ground for which labor had been fighting from the earliest historic times down to a very few years ago. On this fact every one is agreed. It is as clearly set forth in the compilation of labor history made under the auspices of Mr. Powderly as it is in Adam Smith, as clearly in the history of Brentano of Leipsic — who represents the later German school, which objects to Adam Smith and the laissez-faire idea — as in Thorold Rogers. Brentano is most emphatic on this point, and his phrase for it is, " the growth of labor from the system of authority to the system of contract." Brentano himself is for the yet newer view, which he terms "association;" but the history of his own subject, as told by himself up to the date of his book, is simply the history of the successful effort of labor to be relieved of compulsion by law or by guild, and its arrival at the stage known to us in the nineteenth century, where — to quote Brentano' s words — "labor is regarded as a commodity to be sold, and the greatest possible liberty, both of individual bargaining and of combination, is given to the laborer in selling it." On August 4, 1789, as Brentano tells us, the abolition of the old guild control in France was welcomed by laborers with the wildest rejoicings of the French Revolution, and " the glorious night of this 4th of August, under the shouts of approval of the nation, made good the demands of the laboring classes for the freedom of individuals as against absolutism, and for the abstinence from every positive encroachment upon the economic life of a positive economic legislation."

Turning again to England, the triumph is there further accentuated as the crowning principle of the Anglo-Saxon Constitution. I say Anglo- Saxon, because as both Blackstone and Benjamin Franklin have pointed out, it was this Constitution that we brought with us into this country as our most priceless heritage ; and Bushrod Washington, one of our first great judges, asserted, that this, with other unwritten constitutional principles, was so deep and so sacred as not to be prejudiced even by its omission from the written constitutions which our States and our national government had at that time adopted. Therefore, in England, and still more in America — for here, by the framework of our government, our legislatures do not have the power of the British parliament — this is not only a hard-won principle of the relations of laborer to employer, but a fundamental principle of the relation of the freeman to the government. You will see, therefore, that while we still say nothing as to the expediency of starting again on the old Elizabethan method of regulating the labor contract by statute — only now avowedly in the interest of labor, while then it was virtually in the interest of capital — we do say a great deal upon the constitutionality and the novelty in our country and in our race of starting on this course.

Meaning of the Constitution.

Now I am very well aware of the savor of dryness and musty precedent which in every mind not a lawyer's hangs about the phrase " constitutionality or unconstitutionality." It is within a very few months that a friend with whom I was engaged in drafting some legislation in the interest of labor, a learned professor and a publicist as well, used the phrase, " but bother the Constitution ! " more than half-a-dozen times in connection with one brief statute that we were trying to draw. He said " every time you try to do something for labor or humanity you run up against the Constitution." Nevertheless, I would beg all people who are considering this question in the interest of labor ; in the interest of humanity; at least, in the interest of a free humanity, to get a full understanding of what this dry phrase, "unconstitutional," may really mean. There is a notion lately prevalent, particularly among certain newspapers and a minor order of politicians, that the will of the majority is in all things paramount ; that the object of a free government is simply to ascertain, register, and enforce the will of any majority at any time. Now, we must most earnestly deny this; deny it to the length of saying that such a government, far from being a free government, would only differ from a mob government in a certain possible avoidance of blows and bloodshed ; and we would go so far as to assert the paradoxical opposite, namely, that the object of all free government, certainly of all constitutional free government, is not to enforce the will of the majority, but to protect the liberties of the minority ; the majority, except in a tyranny, enforce their will fast enough under any government — with their fists without a government. Such is the object of a constitution ; and that is what the phrase " constitutional " may mean. There is one greater interest than even labor or property ; a higher idea than daily meat and bread, and that is, freedom ; and the seemingly dry phrase " unconstitutional " can in most cases be translated into a synonym more easy of comprehension to all Americans, and that is, " destructive of liberty."

" We live in a world of ideas," and if through the Hebrew race came a greater idea still, no one will contest that through our race has come the idea, liberty. Since the time of King John we have been fighting for this, and we have got it ;

and this liberty includes, even by the dry intendment of law, the right of a man, first, to be free in his person ; second, the right to be free in his thoughts j and third, the right to be free in his actions. I have stated this somewhat in the order of its historical accomplishment. As we all know, first an Englishman's body became free ; then came religious liberty, and last of all, and peculiarly through the labor question, his freedom to work or not to work; his freedom to work for whom he would, and when and at what, and for what pay he would.

Personal Liberty Includes Property.

But one thing remains to be added to this before we can come to a concrete treatment of our subject, and that is, that it very soon and very early became a part of a man's personal liberty that he could acquire, possess, and freely enjoy material possessions. Now, again, I am not taking here an ethical ground in defence. For the moment, I am not defending the question of private property at all ; but I am merely pointing out that as a man's freedom of person only would be like that of the beast of the field, without a roof to creep to at night and protect his wife and children, and a store of food and fuel to feed and warm them with until he could acquire the next supply, this institution of property was at once the necessary instrument, as it were, of personal freedom itself. It is perfectly possible, of course, that these things can be provided by the State ; but property — appropriation by somebody to each person of certain commodities — is a necessary part of the liberty of a human being. The maxim, that an " Englishman's house is his castle," is but one expression ot this truth. Now we are still living under the institution of private, as distinguished from common, property, and private property is expressly made a corner-stone of every one of our State constitutions and of that of the National government itself. And, in theory, all constitutional liberties are equally important, for the reason that if you can destroy one, even though by a law, you can destroy them all. This is why I say that the object of a constitutional government is to protect minorities; that is, to protect a minority, or even a single individual, in the enjoyment of any constitutional thing it was specified by his forefathers he should have when they entered into the compact which makes him a member of the government. Thus, while democratic government has, as one function, the registering of the will of the majority, constitutional government has as its special function the seeing to it that the majority does not transcend certain cardinal principles of freedom or policy which were specially excepted out of its powers by the will of the people itself. Should the will of the people be really and permanently changed by such a decided majority as to guarantee that the change will be permanent and not a mere chance vote in a moment of excitement, the Constitution itself provides a method for registering such change. Therefore we approach this subject with the most distinct statement that the freedom of the individual, and freedom in dealing with his possessions, of which his own right to labor is as much one as his horse or his cow, is our greatest birthright, and one which has received the sanction of what is called the Constitution.

Now, in considering these labor questions, particularly in their relation to this principle, there are always two questions to be determined. First, is it expedient to do this thing by a law ? second, is it constitutional? If both, there can be no question ; but if expedient, and not constitutional, the clear answer we should give is that it should then be brought about by voluntary action, by united demand, by public sentiment, so that we may get the benefit of the change proposed without paying for it the dear price of losing, once and for all, all our constitutional liberties. I wish to make it clear that I believe our phrase, "constitutional," to embody one of the very highest ethical principles ; certainly so in relation to our people and our race. I deny most strenuously that it is a dry phrase or a legal figment. I say that whenever the word " constitutional " can fairly come in, we are treating with the deepest principles and the most ethical motives. And one word more before we go into practical affairs. The difficulty in this question is based almost entirely on another and a peculiar point. There is, of course, the general difficulty that a concise expression of great human import necessarily cannot define its application ; when, for instance, we say that a man's property cannot be taken away without due process of law, there is at once the question whether the property of a man in his own labor comes under the general expression of property.

Written or Unwritten Constitution.

But I mean further than this. The constitution of England is avowedly unwritten, and if Webster and Judge Washington — who rendered almost the first decision on the subject — were right, we have not lost it by adopting our written constitutions. If, on the other hand, the view is correct that more recently has been expressed by the Supreme Court of Massachusetts, that we have no unwritten or implied constitution, but that each man is protected and restrained only (1) by the exact words of his own State constitution, and (2; by the express provisions of the United 4

States Constitution, the uncertainty is still not quite removed, because there can hardly be a doubt that the concise expressions and general phrases employed in our brief State and National Constitution were written with conscious reference to all that body of unwritten constitutional law which they had brought with them from England and under which our citizens then lived ; and, therefore, the expressed restrictions and guarantees of our written Constitution, wherever the phrase fairly permits it or indicates it, are to be extended to include by implication the whole body of constitutional law which then fell naturally into the same subject matter. This is the sole cause of the apparent diversity of our courts on constitutional matters. There is never any doubt when a law or an act in question falls under the express written phrases ; but when the express written phrase is a general one, the question is whether it includes the particular. Whether the right to property includes property in a man's own labor is precisely an example of what I mean ; and examples of cases which, though clearly constitutional principles, are not embodied in our written Constitution, are not hard to find. Parliament in England is said to be supreme, but there is a very early case, which has been referred to in a thousand cases since, to the effect that even Parliament cannot make a man a judge in his own case ; so even Parliament cannot arbitrarily take the property of one man and give it to another. Now, I will say frankly that I have very great doubt whether the omission of our State or National Constitution to express such principles as this has taken them out of our birthright as Anglo-American freemen.

So in the case of monopolies. In the leading case on this question, that of the Norwich Gas Light Company, arising in Connecticut in the year 1856, the court expressly says that " although we have no direct constitutional provision against a monopoly, yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Rights, providing that no man or set of men are entitled to exclusive public emoluments or privileges from the community, to render them void."

Present Entire Freedom of Labor Contract.

Coming now to a practical consideration of the labor contract, I hope I have shown that we start upon a simple and intelligible proposition that to-day the labor contract is perfectly free ; either side may make whatever contract he can get the other side to sign. Not only this, but either side may freely combine to demand any form of contract from the other side, as mere combinations alone are now made perfectly legal.

This is the condition of affairs we now are in, and this is the condition of affairs for which laborers have always for five hundred years contended for. It has been so fully and completely realized that it hardly appears in any of our laws or constitutions ; for, subject only to certain laws against combinations, against collective bargaining, which will be peculiarly the subject of my next lecture, this state of affairs had practically come about before the adoption of our written constitutions. The men who formed our constitutions thought it no more necessary to provide that a man might make a legal contract about his own labor than they did about his property, and no more necessary to say it about both than they did to say, in terms, that there should be no taxation without representation. Only in view of late attempts to interfere with this contract have certain States very recently affirmed the principle. Thus, the statute of Louisiana of 1890 provides that the violation of labor contracts and wilful interference with such contracts by persons not parties thereto is forbidden. You will note that this important statute falls into two branches — one which asserts the legality of labor contracts specially and forbids their violation, and one which forbids wilful interference with such contracts by persons not parties to them ; that is, intimidation. The first branch alone concerns the contract itself.

The California code says that the contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of another or a third person. You will observe that this is mere definition. The statute clearly does not consider it necessary to say in terms that such a contract is legal. Of course it is. Now, this fact that only one State — and that by a most recent statute — says anything about the general question of the labor contract, is the very fact which shows how completely such a contract had become, not only legal, but guaranteed by the Constitution. It did not require the support of any statute. The Louisiana statute was doubtless passed by the Legislature in a moment of apprehension about first principles, caused by the general strike and disorder of the city of New Orleans in 1S89. The California statute is not so significant, because it is merely a part of Mr. David Dudley Field's code, and Mr. Field put everything in his code, almost to the alphabet and the tables of arithmetic. Our law-making, therefore, bears out my statement that the right of contract in labor matters is recognized in this country as needing not the sanction of any statute. If it be not involved in our written constitutions, it is, at least, a part of that unwritten •.itutional law of which I j-.st spoke. From the point of view of history, of law, and of ethics, this general principle is clearly right. The contract of labor should be free to both sides.

Thus, in People v. Gillson (109 N. Y., 339), the court says: The term " liberty " as used in the Constitution is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways ; to live and work where he will ; to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.

In Braceville Coal Company v. The People (147 111., 71), the court says:

" Property, in its broader sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession, and power of disposition which may be acquired over it ; and the right of property, preserved by the Constitution, is the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any lawful industrial pursuit which the citizen, in the exercise of the liberty guaranteed, may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage, and, as an incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such way as the laborer shall deem most beneficial, and of others to employ such labor, is necessarily included in the constitutional guaranty." In the Frorer case we said : " The privilege of contracting is both a liberty and a property right, and if A is denied the right to contract and acquire property in the manner which he has hitherto enjoyed under the law, and which B, C, and D are still allowed by the law to enjoy, it is clear that he is deprived of both liberty and property to the extent that he is thus denied the right to contract, and quoted with approval : ' The man or the class forbidden the acquisition or enjoyment of property in the manner permitted the community at large, would be deprived of liberty in particulars of primary importance to his or their pursuit of happiness. ' ; (Copley's Const. Lim.\ 393.)

Intimidation.

Asa direct corollary to this, the other branch of the Louisiana statute should also go without saying, as the law is thus in all our States. The contract being free to the parties, no third person should interfere with them, at least by any other influence than persuasion. This, I think, we will also take as axiomatic. But, unhappily, laborers, often uninstructed, and suffering perhaps under past oppression or present unfair treatment, have so often broken this principle, that here we find that States have found it necessary to legislate ; and so every New England State, New York, Indiana, Illinois, Wisconsin, Minnesota, Missouri, Oregon, the Dakotas, Montana, Georgia, Alabama, and Texas, have thought proper to legislate that it shall be a criminal offence for any person to prevent, or to seek to prevent, by means of threats, intimidation, or force, alone or in combination with others, any person from entering into or continuing in the employment of any other person. Illinois, Oregon, the Dakotas, Montana, and Georgia have also extended this principle to the employer ; that is, it is criminal to intimidate or coerce any employer not to employ any other person whom he might otherwise be willing to employ. The other States have probably not covered the point because they did not deem the employer likely to be intimated in so doing.

"Molesting."

I will here pause to note that in England the same legislation has run its course, and the phrase in their present statute now is, < k anyone who uses violence to, or intimidates, such person ; " and it is very significant that the majority of the Labor Commission of 1893 recommend an amendment to this wording, which is found in a statute of 1875, to read to follows : " any person who uses or threatens to use violence to such other person." You see that there is a most important distinction here. The word "intimidate" may well cover moral intimidation. The labor leaders are now contending to be permitted this, and to limit the prohibition to violence or the threat of violence ; that is, physical violence alone. I presume, however, this physical violence would apply to destruction of property as well as injury to person. This is a very significant change, because it has arisen out of the great strikes in England and the law cases to which they gave rise. I shall have to go into this matter in some detail when we speak of boycotts, merely noting here that one of our leading decisions in the State of New York recognizes that there may be a moral intimidation — ridicule, for instance, or disorderly shouting, or objectionable epithets — which will be criminal, even when practised by one person alone. In a boycott, which is necessarily the act of more than one person, the law is much stricter.

New York, Minnesota, Georgia, and Montana have been a shade more specific, and expressed that this intimidation shall not be either by interfering with tools or property or the use thereof.

But we have not yet got to the end of this interesting legislation. In Connecticut, New York, and Montana the prohibition of the statute extends to the preventing, by threats or force, any person from doing or not doing any act which such person has a legal right to do. Here, you will see, you have the broad human principle laid down, that I have a right as an individual to do an act not otherwise unlawful, and any other person shall be regarded as a criminal who attempts to prevent me. It sounds almost like a passage from Herbert Spencer ; but who, after this, can say there are no ethics in the law world ?

Oregon and North Dakota, following the last English statute, specify more particularly against the compelling another " to alter his mode of carrying on business, or to limit or increase the number of persons employed by him, or their rate of wages or term of service." Michigan has a similar statute, and, finally, the brandnew constitution of North Dakota embodies this corner-stone as follows : " Every citizen of this State shall be free to obtain employment wherever possible, and every person maliciously interfering or hindering in any way any citizen from obtaining or enjoying employment from any other person, shall be deemed guilty of a misdemean or." There you have the property right in labor laid down in an express constitution.

No Limitation of Wages.

So much for the general principle of the contract and its safeguards. Now for particulars and restrictions. In the first place as to wages : No Anglo-Saxon community, so far as I can find, in modern times, has prescribed or restricted the rate of wages paid. And by a decision of the Supreme Court of Massachusetts the ancient law regulating wages and apprentices is expressly declared to be no part of our common law. The constitution of Louisiana expressly says that the Legislature shall never fix the rate of wages.

Perhaps the nearest effort to regulating wages was that law of the State of Massachusetts, passed in 1S92, which prohibited the deduction of wages of weavers when any special piece of work was imperfect, even to the point of worthlessness, and for the employer to impose a fine therefor. This being an attempt to make a man pay for what he had not got, the Supreme Court of Massachusetts itself (which perhaps goes as far as any court of the Union to-day in sustaining new laws, and most narrowly interprets old constitutional principles) declared this law unconstitutional. As a consequence of this, the next Legislature passed a law contenting themselves with ordering that where a deduction was made for imperfect work, the imperfection should be pointed out to the workmen at the time ; which is certainly a reasonable provision, so that no one has thought worth while to question it.

There is one other statute somewhat similar to this, that in Ohio, passed in the same year, which prohibits any reduction or retaining of wages for materials, tools, or machinery destroyed or damaged. It may not, perhaps, be clear to others than lawyers why I think that this statute is perfectly valid and the Massachusetts one not. But the reason is, that the Massachusetts statute definitely took away a property right, while this one of Ohio merely provides that a separate and independent claim for damage to property cannot 1 e fixed by one party to the contract, and set off against a claim of the other party of a wholly different nature, that is, a claim for or against a contract claim for wages.

Anti-Truck Acts.

There have been, however, many statutes copying the precedent of the English Truck Act, passed about fifty years ago, requiring employees to be paid only in lawful money, or at least in checks which were expressly redeemable in lawful money. You are all aware how this act was passed, that it was levelled at the abuse which existed in keeping company stores and forcing employees both to buy their own goods at possibly exorbitant prices of the employer and to remain in his debt permanently, so that they were practically under his control. Now, this is a very interesting question to debate on constitutional grounds, for it is surely a very good example of a law that we all believe in. It is clearly both wise and expedient, and one which removes great abuses we all know to have existed. Nevertheless I must point out that the courts of Pennsylvania and West Virginia, in most vigorous opinions, since approved in many of the Western States, have declared this law unconstitutional on the ground that a full-grown American citizen has a right voluntarily to make a contract to accept groceries instead of money if he chooses. The West Virginia judge thought that the right to contract in respect of property, including contracts for labor, was property protected by the Constitution ; while the decision in Missouri went more particularly on the ground that this statute, which there applied only to mining laborers, was unconstitutional under that provision of the Missouri constitution which forbids _ islation.