LAW AND LIBERTY: THE RIGHTS OF COLLECTIVE LABOR
I. Introduction: Individual vs. Collective Rights--how can workers best protect themselves in a marketplace society dominated by the kinds of work relationships and laws that began to prevail as the 19th century progressed?
II. Workers and Collective Action
1. Early craft unions the Emerging Jacksonian Labor Movement: explain and summarize the origins of the early trade unions and labor movement.
2. Trade union collective tactics: Prices lists and closed shops.
III. The Common Law and Collective Action
1. English Precedents: illegal restraints of trade at the common law; parliamentary restrictions on actions by trade guilds that harm the commonwealth or realm; late 18th century anti-combination acts.
2. The U.S. Common Law in an Emerging Marketplace Society: people are free to combine but not to restrain trade to the harm or detriment of the community--combination or monopoly not itself a crime or breach of law; lacking an aggrieved party or interest, no legal or criminal sanction against restraint of trade even by a monopoly.
3. Collective Action and the Common Law in Practice: Collective action taken by employers or employees could fall afoul of the law, as judges understood it, in one of three ways: restraining trade in the market and causing higher prices to the detriment of the community; higher prices or wages that cause general economic harm or loss; infringements on liberty of contract that deny individuals their equal and full rights as citizens.
IV. The Famous Conspiracy Cases (1806-1842): What is a conspiracy and why is it a convenient device to check collective action by working people?
1. The Philadelphia Cordwainers' Case (1806): Commonwealth vs. Pullis--the issues involved in the case and how and why the court rules as it does: two issues, alleged negative impact on the community and also workers taking law into their hands, as expressed in following language by judge:
We live under a government composed of a constitution and laws...and every man is obliged to obey the constitution, and the laws made under it....Shall these, or any other, men associate for the purpose of making new laws, laws not made under the constitutional authority, and compel their fellow citizens to obey them, under the penalty of their existence?...If private associations and clubs can make constitutions and laws for us...if they can associate and make bye-laws paramount, or inconsistent with the state laws; what, I ask, becomes of the liberty of the people, about which so much is prated, about which the opening counsel made such a flourish?
Hence the decision against the cordwainers as follows:
We cannot and we must not forget that the law of the land is the supreme, and only rule. We live in a country where the will of no individual ought to be, or is admitted, to be the rule of action....There is but one place to determine whether violations or abuses of law have been committed. It is in our courts of justice; and there only after proof to the fact: and consideration of principles of law connected with it.
In 1809 a New York court in Auburn reached a similar conclusion in the case of People v. Melvin, another cordwainers' action.
2. The New York Tailors' Conspiracy (1836): the second wave of conspiracy trials in the wake of the rise of the Jacksonian labor movement---People v. Fisher: conviction, but jury, community sentiment, and light sentence or penalty--a higher court and worsening the penalty and popular protest--yet judges use same language as they had 30 years earlier, to wit:
It is a sentiment deeply engrafted into the bosom of every American, that he ought and must submit to the laws, and that to its mandate all stubborn necks must yield. Self-created societies are unknown to the constitution and the laws, and will not be permitted to rear their crest and extend their baneful influence over any portion of the community.
These sentiments were echoed in all the states in which the economy was growing, wage relationships were becoming more usual, and trade unions were emerging. For example, in Massachusetts, a jurist and treatise writer expressed it this way:
Our government was constituted for the good of all....In declaring combinations of this character criminal, the law but utters the voice of reason and good sense. All such acts infringe upon the freedom of the market, which it is one main object of policy in every well-regulated state to secure. They violate the freedom of the citizen...and the right...to do as one pleases in all matters not commanded or forbidden by law. They essentially interfere with the rights of the government. Whenever individuals array themselves against the law, they should be promptly met, before combination manifests itself in mobs, insurrections, and other civil commotions, which the strong arm of government only can repress.
3. Commonwealth v. Hunt (1842): Why is the case considered so important? What was the great new legal principle enunciated by Judge Shaw that conflicted with precedents in the area of labor conspiracy and the common law? A brief note on the facts in the case: not really a dispute between the union and employers (masters) but between the union and one of its own, or former, members--in theory legalizes unions and collective action by workers, but to what practical extent? Only so long as such collective action is deemed to be legal--and who decides as to legality? No surprise that in 1853 a standard guide to the law in Massachusetts cited Commonwealth v. Hunt as authority for the statement that combinations "to prevent another, by indirect or sinister means, from exercising his trade or to raise the rate of labor were indictable at common law."
V. Conclusion: How Free Are Workers?