refuse its doles. I believe further that the effect of these measures will tend toward such lessening of the evil at its sources as to leave us eventually, not without a problem, but one with which our devotion and intelligence may cope with fair promise of success. JOHN GRAHAM BROOKS.

Cambridge, Mass.

PEACEABLE BOYCOTTING.

"Nor is it the province of judges to mould and stretch the law of conspiracy in order to keep pace with the calculation of political economy." (Bowen, L. J., in Mogul S. S. Co. vs. McGregor et als. 23 Q. B. D. 620, 1889.)

"It is difficult to see how, in a case of a conflict of interest, it is possible to separate the objects of benefiting yourself and injuring your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other, and to say it is lawful to combine to protect your own interest but unlawful to combine to injure your antagonist, is taking away with one hand a right given by the other." (Stephen's "History of Criminal Law of England," vol. iii, p. 218.)

The bill in equity brought in March, 1893, in the United States Circuit Court for the Northern District of Ohio by the Toledo, Ann Arbor and North Michigan Railway Company against the Pennsylvania Company, other connecting lines and P. M. Arthur, Chief Executive of the Brotherhood of Locomotive Engineers, was the means of deciding adversely to labor certain propositions of importance in the pending struggle between labor and capital. There being a strike of the engineers on the Ann Arbor, the engineers of eight connecting lines (which lines were joined as defendants in the bill) undertook by concerted action, as members of the Brotherhood of Locomotive Engineers, to which all belonged, to assist the strikers. The chief executive officer of the Brotherhood, P. M. Arthur, being authorized by a by-law of the organization to take this course when circumstances seemed to him to make it advisable, notified the superintendents of the eight connecting lines that the engineers on their lines would quit work if required to handle Ann Arbor freight; the immediate purpose being to compel these lines to reject Ann Arbor freight to the loss of the Ann Arbor, and the ultimate purpose of course being to enable the Ann Arbor strikers to prevail in their contest with the railroads. There was no malice in fact, no violence, no fraud.

This bill was then brought and it was alleged therein that the conduct of the engineers of the connecting lines and of Mr. Arthur was a violation of the Interstate Commerce Act.* By this act all railroads doing an interstate business are required to grant to all connecting lines equal facilities without discrimination, and a penalty is added against railroads, or persons within their employ, who violate any of the provisions of the act. The court was therefore asked to enjoin the employes on the connecting lines from discriminating against the Ann Arbor by refusing to handle its freight, and to enjoin Mr. Arthur from promulgating or keeping in force any order requiring or commanding such discrimination of the employes. The court granted the injunction as prayed for and explained its views at length in two opinions,† that of Judge Taft being especially able and clear. Any intention of compelling an employe to remain in his employment is disclaimed. He may quit if he thinks best, although to do so is a violation of his contract, and the other party must be left to his suit for damages. But so long as the employe remains in his employment, the law can compel him to do his whole duty; and part of his duty, when employed on an interstate line, is to grant equal facilities to connecting lines. By refusing to do this he subjects himself to the penalty mentioned above, and when his refusal is in concert with others in order by this unexpected act to compel the railroad which employs them to discriminate against other lines, he is guilty of a criminal conspiracy, and not only that, but of a conspiracy to violate a law of the United States, which makes him liable to a further and more severe penalty. By promulgating the order to quit, Mr. Arthur aids and abets the criminal discrimination of the men, as well as being similarly engaged with them in a conspiracy to procure the officials of the connecting lines to violate the act. Mr. Arthur and the men are moreover civilly liable to the

•Act of February 4, 1887.

† Fed. Rep., May 9, 1893, PP. 730 and 746.

Ann Arbor for the conspiracy, and for procuring the connecting lines to violate their statutory duty of non-discrimination to the Ann Arbor. Here are ample grounds for an injunction, in the absence of which irreparable damage will be done to railroads and to the public. Such is the reasoning of the

court.

The various brotherhoods of railroad employes are organizations embracing several special forms of railroad service. The Locomotive Engineers' is the oldest and is very powerful, having some 35,000 members distributed over this country and Canada. Its course in labor troubles has been noticeably moderate and conservative. The effect of this decision seems to be to restrict the action of the brotherhoods in cases of strike to the road where the strike occurs. The men there may go out, for they thus cease to be employes of the railroad and to be within the provisions of the act. But their fellow-employes on connecting lines may no longer assist them by giving notice of an intention themselves to strike if required to handle the freight of the offending line; and in a certain important respect, therefore, the brotherhoods are divided into as many bodies as there are interstate railroads. This important conclusion of law, it should be borne in mind, comes not from express legislation, but crept between the lines of a statute which was passed for an entirely different purpose. The Interstate Commerce Act was a measure in the interest of the people against the corporations. Its objects were to prevent strong railroad lines from oppressing weak ones, and large dealers from oppressing small ones-by inequitable discriminations in freight rates, and to prevent traffic from being pooled by the railroads to the injury of the public. Any other effects of the law were unforeseen, not appearing in its language, nor avowed in the discussions prior to its passage. And though its legal implications are strictly as much a part of a statute as what is expressed, yet it is to be regretted that so important a result should have been only implied, with no opportunity for discussion or real

acceptance. It is an illustration of the uncertain results which may follow the passage of a law.

This decision is important because it is another method of suppressing the peaceable boycott, to which our courts have already shown themselves distinctly hostile. To be sure it is not certain that the court in this case might not have reached the same conclusion if the Interstate Commerce Act had not existed. The allegations in the bill must have been different, but the decided cases would have apparently justified the court in reaching much the same conclusion. State vs. Donaldson* decided that for employes to combine and notify their employer that unless he discharged certain fellowworkmen they would quit his employment, was an indictable conspiracy. And Walsby vs. Ansley, an English case decided six years earlier,† is to the same effect-that such conduct is a criminal conspiracy at common law. These are cases almost identical with the one before us. In them the objectionable employes were boycotted; in this the Toledo, Ann Arbor and North Michigan Railway Company was boycotted. Still, the court's interpretation of the Interstate Commerce Act is one more weapon against peaceable boycotts, and the grounds on which the law restrains these are now so various, and it may be said so vague, that a slight historical examination of the subject and an attempted analysis of it from the modern standpoint cannot be out of place. Why a strike is justifiable and a boycott not, what are the legitimate limits of competition and when does it become a restraint of trade? are questions which I venture to think have not been decided by the court on any consistent principles, or at least on principles that will bear the test of modern views on social science.

Views on social science have been an element in decisions on these subjects, and they are an element in this decision. The regulation of public policy to a certain extent is a

32 New Jersey Law, 152 (1867).

+30 L. J. M. C., 121 (1861).