HITH

ITHERTO we have been considering the primâ facie liability of a single individual, not acting in concert with others. How as to the primâ facie liability of defendants who are members of a combination?

Of course, wherever a single defendant would be primâ facie liable, members of a combination should be equally so.

If

The dispute is as to whether the members of a combination incur a greater prima facie liability than a single individual. an independent individual intentionally bringing about a certain result by a certain method is not liable, are members of a combination intentionally accomplishing the same result by the same method liable? Upon this question opinions differ. There is a dispute as to the interpretation and effect of certain decisions.1 There is also a controversy as to the result in case the question is considered solely upon principle. All that is proposed here is: first, to give briefly some of the leading arguments which have been brought forward in discussing the matter upon principle; and then, secondly, to call attention to certain practical considerations, growing out of modern changes, which seem decisive.

If the foregoing question is answered in the affirmative, it must be on the ground that a combination, quâ combination, necessarily involves some feature or features intrinsically objectionable.

1 See Mr. Cohen's “Memorandum on the Civil Action of Conspiracy,” concurred in by three of his colleagues. Report of the Royal Commission on Trade Disputes, etc., 20-23; also Report, art. 61, p. 15. A majority of the Commission answer the question in the negative. Cf. 22 L. Quar. Rev. 117, and Pollock, Torts, 7 ed., 318.

There is, we think, only one feature common to all efficient combinations; namely, members agree to act (on certain subjects or within certain limits) according to the vote of a majority, or agree to obey the orders of some union official. Is this feature so objectionable as to impose upon members a civil liability for acts which would not be tortious if done by a single person acting independently?

We give Professor Dicey's statement of the question (in different phraseology), and his admirable summary of the difficulties in the way of a satisfactory solution: 1

"How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens or the power of the government?"

"May X, Y, and Z lawfully bind themselves by agreement to act together for every purpose which it would be lawful for X, Y, or Z to pursue if he were acting without concert with others?"

"If this question be answered in the affirmative, then contractual freedom, and therefore individual liberty of action, receives what appears to be a legitimate extension, but thereupon, from the very nature of things, two results immediately ensue. The free action of X, Y, and Z is, in virtue of the agreement into which they have entered, placed for the future under strict limits, and their concerted action may grievously interfere with the liberty of some third party, T. . . . A body . . . created by combination... by its mere existence limits the freedom of its members, and constantly tends to limit the freedom of outsiders."

"If, on the other hand, the question before us be answered in the negative, and, in the interest of individual freedom, the law forbids X, Y, and Z to combine for purposes which they might each lawfully pursue if acting without concert, then the contractual power of X, Y, and Z, or, in other words, their liberty of action, suffers a serious curtailment."

The same questions and arguments may be presented in other forms.

The objection to a labor combination is twofold:

(1) It tends to limit the liberty of the insiders (the members).

(2) It tends to increase the probability of damage to outsiders; including non-union workmen, employers, and the general public.

As to the first objection. On the one side it is said:

"Free

1 In quoting these detached passages, the order in the book has not been followed. 2 Dicey, Law and Public Opinion, 466, 154, 153, 155.

dom of contract means freedom not to contract and freedom to agree with others not to contract." 1

To this it is answered: Any one may exercise a choice as to whom he will sell his goods, but he cannot enter into a contract whereby he binds himself not to sell, for in such instance he barters away his right of choice, and destroys the very right he claims the privilege of exercising. After entering upon such agreement he is no longer a free agent."2

a state.

To this it is replied, that the argument carries too far; that it would prevent the organization of a partnership, a corporation, or "It is an argument that would be pertinent against the organization of society into government. The will of the individual must consent to yield to the will of the majority, or no organization either of society into government, capital into combination, or labor into coalition, can ever be effected. The individual must yield in order that the many may receive a greater benefit." 3

As to the second objection to a labor combination; namely, the probability of greater damage to outsiders.

On the one hand it is urged that what one man may do singly a number of men may lawfully do together; that what several men, each acting independently, may lawfully seek to accomplish, the same persons, acting in concert, may lawfully seek to accomplish.

66

In other words, "the element of combination to do an act does not make that act wrongful if the act, if done by one, would not be wrongful... ."4 Again, what one trader may do in respect of competition, a body or set of traders can lawfully do; otherwise a large capitalist could do what a number of small capitalists, combining together, could not do. . . .

"5

On the other hand it is said: "The force acquired by combination is incalculably greater than the sum of the powers so transferred to the union by each individual. . . ." In the words of Mr. Mitchell: "Six million trade unionists in the United States would not be twice, but four or five times as powerful as three millions." 6 There is "multiplication of force by combining..

1 The Nation, vol. 79, p. 47.

.

"7

2 Ellison, J., in Ford Heim Brewing Co. v. Belinder, 97 Mo. App. 64, 69. Of course

the same argument would apply to a contract not to labor.

3 Adams, J., in Wabash Ry. Co. v. Hannahan, 121 Fed. Rep. 563, 571.

4 See 42 Am. L. Reg. (N. S.) 133, n. 19.

5 Lord Morris, in Mogul, etc., Co. v. McGregor, [1892] A. C. 25, 50. Cf. Judge

Holmes, in 8 HARV. L. REV. 8.

6 Mitchell, Organized Labor, 407.

7 See Erle, Trade Unions, 2.

The increase of power by combination is "in geometrical proportion to the number concerned.” 1 ... a grain of gunpowder is harmless, but a pound may be highly destructive. . . ."2 A combination" is something more than the mere sum of individualities that compose it; . . . its power is something quite different from the mere aggregate of the powers of the parties to the combination. . . . " 3

The commission of certain acts "by the concerted action of a number of persons materially alters their character, in this respect at least, that they thereby become more formidable, more oppressive, and more difficult to resist, and consequently more generally dangerous. . . .”4

It is possible that it will hereafter be more clearly seen that the difference between the power of individuals acting each according to his own preference and that of an organized and extensive combination may be so great in its effect upon public and private interests as to cease to be simply one of degree and to reach the dignity of a difference in kind." 5

It is not material to consider which of these conflicting views would have prevailed in the eighteenth century. At this day the foregoing arguments against labor combinations cannot be allowed controlling force. The changes in the modes of business, brought about by the inventions coming into common use in the nineteenth century, present practical considerations which are decisive in favor of sustaining the right of laborers to combine. The law, if it were formerly otherwise, must change with alterations in the circumstances of society. These alterations have been forcibly stated by Mr. Brooks Adams.

"In the nineteenth century our society broke with its past by the introduction of steam. . . . I suppose within seventy-five years social condi

1 Gibson, C. J., in Com. v. Carlisle, Brightly N. P. (Pa.) 36, 41.

2 Lord Brampton, in Quinn v. Leathem, [1901] A. C. 495, 530.

1 Eddy, Combinations, § 475.

Andrews, J., in Leathem v. Craig, Ireland [1899] 2 Q. B. & Ex. D. 667, 676. And see Prof. Wyman, in 17 Green Bag 22, 23.

5 Hammond, J., in Martell v. White, 185 Mass. 255, 260. It would seem that legislation restraining or regulating the action of combinations is at least as likely to be held constitutional as legislation restricting the liberty or regulating the conduct of a single man. See Holmes, J., in Carroll v. Greenwich Ins. Co., 199 U. S. 401, 409, 410; also in Aikens v. Wisconsin, 195 U. S. 194, 205. ⚫

• See Erle, Trade Unions, 26, n. 1; 9, 38, 39, 47, 48, 49.

tions have changed more profoundly than they had done before since civilization emerged from barbarism, and apparently we are only at the beginning.... A new civilization has arisen, based on scientific discoveries and undreamed of mechanical processes, which, beside generating the trade union, develop the monopoly...."1

Combinations of capital are now a necessity. Modern business, in many of its most important forms, cannot be carried on without them.2

A very large proportion of laborers are no longer employed singly, or in small groups, by individual masters. They are now working in large masses in the employ of persons representing aggregations of capital. If, then, capital can combine, labor must equally be allowed to combine. The inevitable tendency of both classes to combine can neither be ignored nor repressed by the courts. Judge Holmes has said: ". . . the organization of the world, now going on so fast, means an ever increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundamental conditions of life, are to be changed." To permit combination to capital and deny it to labor, or vice versâ, would result in revolution, and ought to so result.1 . . . the law of capitalist combination cannot permanently remain different from that of labor combination." "The law of combination, as laid down for capital, must end as affecting the law as laid down for labor, or vice versa. They cannot be kept in separate compartments." 5

It is plain that workmen, if each negotiates singly with a combination of capitalists, will not attain as favorable terms, either as to wages or hours, as could be obtained by collective bargaining on

1 Centralization and the Law, 46, 47, 48.

2 Aggregations of capital usually exist under the form of a corporation. Some technical lawyer may, perhaps, set up a claim that a corporation is, in the eye of the law, a single legal person, and hence cannot be regarded as a combination. But the fictitious legal entity is composed of natural persons, and the courts will go behind the legal entity and look at the natural persons wherever justice requires.

8 Holmes, J., in the dissenting opinion in Vegelahn v. Guntner, 167 Mass. 92, 108. 4 See dissenting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 83 Fed. Rep. 912, 932, 933, 938, 939.

5 Prof. Ashley, in Nat. Rev. for March, 1906, pp. 65, 66. These sentences, though apparently written with special reference to the methods allowable to combinations, seem also applicable to the primary question of permitting the existence of combinations.