can operate. It is an assurance of a minimum of industrial disturbance.

Restrictions in the law upon collective action upon either side are inconsistent with collective bargaining. Complete freedom to combine should be given to both employers and employees. This policy requires no change in the status in law of employers' associations and the weapons they use to combat labor. Some dead-letter statutes are directed against them; but these are of no practical importance. It is otherwise as to the restrictions upon collective action by labor. Moreover, these restrictions are likely to be even more serious in the near future. The damage suit looms up as a new menace to labor. The injunction has lost many of its terrors on account of the frequency of its use. It is now more of an annoyance than a real obstacle to labor; but the damage suit is likely to mean the destruction of unionism in its present form.

(6) Damage Suits

While there were earlier damage suits, and judgments as well, this menace to labor escaped notice until the recent Danbury hatters' case.1 As a result of the decision of the Supreme Court in this case, a judgment of nearly $300,000 (including interest) is outstanding against some 175 members of the hatters' union. It is quite probable that the houses and bank accounts of these union members which have been attached will be sold to meet this judgment. The damages awarded were for losses sustained through a boycott conducted by the union officers. Only a few of the defendants are charged with having had any direct connection with this boycott. They are held liable because they remained members of the union after wide publicity was given to the boy

cott.

The importance of this case cannot be overstated. It establishes the principle that the members of labor unions are responsible without limit for the unlawful actions of the union officers and agents which they have in any manner

1 1 Lawlor v. Loewe, 235 U. S. 522 (1915).

authorized or sanctioned. Such antecedent authorization or subsequent approval of unlawful acts does not require to be expressed, but may be inferred from all the facts in the situation. Membership in the union constitutes approval of unlawful acts of the officers and agents when they have been given wide publicity. The Danbury hatters' case arose under the Sherman antitrust act; but the menace of the damage suit does not depend upon that statute. Damages may be recovered not only for restraint of interstate commerce, but for any wrongful act of a labor union. Under the Sherman act triple damages may be collected, but without that act only single damages, yet even single damages are likely to bankrupt all unions. Nor can damages be secured only for boycotting. Recovery can be had also for losses sustained through lawful strikes, or through picketing, or because of any other wrongful conduct.

Within the next few years there are likely to be many damage suits against labor unions and their members. Several such suits are already pending (1915). The principles established in the Danbury hatters' case render probable that judgments will often be recovered. It may become impossible for a workman with a little property to belong to a labor union. Union funds are likely to be exhausted in court fights and to satisfy judgments. It is not unlikely that the unions will endeavor to offset this menace by greater secrecy. The Danbury hatters' case turned upon the point that so much publicity had been given to the boycott that all the members of the union could reasonably be presumed to have knowledge thereof. Thus, a premium is put upon secrecy and encouragement is given to the slugger. But this means the end of conservative unionism. Collective bargaining cannot be conducted in secret.

The menace of the damage suit is best brought out in the contrast between the position of the members of labor unions and that of stockholders in corporations. It is evident that labor unions are very much looser organizations than are corporations. Unions must entrust their officers with great power; the rank and file of the members know little about what the officers are doing. Even when members disapprove of the actions of the officers, they can ill afford to get out of

the union, as they would lose their insurance benefits and in many industries would find it difficult to get a job. These are reasons why the members of labor unions should not be held to the same accountability for acts done in their behalf as are stockholders in corporations. But in the United States the members of labor unions have the greater liability. For a tort committed in behalf of a corporation, the stockholders can be held only to the extent of their stock subscription, or double the amount, under certain laws regulating banks. The members of labor unions are responsible without limit for tortious acts done in their behalf.

(7) English Law of Labor Disputes

Very nearly the same situation which has been created in the United States by the Danbury hatters' case existed in England subsequent to the Taff Vale case in 1901. In that case a union of railway workers was assessed damages in excess of $200,000 on account of injury to the company through acts of violence during a strike. The upshot of this case was the enactment of the British trade disputes act of 1906. This act places labor unions upon a position of equality with employers' associations, and distinguishes both from combinations to control prices. It provides that acts done by a combination, either of employers or employees, "in contemplation or furtherance of a trade dispute," shall be lawful unless they would be unlawful if done by one person. It provides further that such acts shall not be deemed unlawful because they interfere with another's free access to the labor and commodity markets, or because they amount to meddling by third parties with contractual rights. Thus, the law of conspiracy, in all its forms of statement, is declared not to be applicable to labor disputes. Moreover, in lieu of vague prohibitions of "violence," "intimidation," and "coercion," England has definite statutory declarations as to the conduct which is unlawful. The dividing line between lawful persuasion and unlawful coercion is fairly definite, so that

170 L. J. K. B., 905 (1901).

all who read may know. Picketing for the purpose of peacefully obtaining or communicating information, or of peacefully persuading another to work or abstain from working, is lawful. On the other hand, it is unlawful to commit acts of violence or sabotage, or persistently to follow another. Nor may any one quit work in violation of a contract when he has reason to know that the consequence of his leaving will be to endanger human life, or to expose valuable property to injury, or to deprive a city of gas or water.

In English law there are no doubts as to the legality of labor unions or of employers' associations. Both the lockout and the strike are legal, as are the boycott and the blacklist. Parallel to the right of employers to get new workmen is the right of the strikers to picket peacefully and to induce them to abstain from working. England's policy is to allow both sides a free hand for a fair fight. It ignores the motives which underlie labor disputes. It does not interfere until the line of intimidation and violence has been crossed. And this is a line definitely established by statute, and not left wholly to the courts. Thus the English law has the merits of certainty and practicality.

The most radical departure in the British trade disputes act must still be noted. It is the exemption of trade unions and employers' associations and their members from all liability in tort for wrongful acts alleged to have been committed in their behalf. This was Parliament's answer to the Taff Vale case. It made it impossible to maintain any damage suit against a trade union or an employers' association. This is a greater privilege than the limited liability of business corporations. The liability is not merely limited, it is removed in toto. Even though a union may be responsible for acts of violence, it cannot be sued for the damage it caused. Our courts hold the members of labor unions to the unlimited liability of partnerships; in England they are not liable at all.

The position given in England to trade unions and employers' associations violates that concept, fundamental in law, that he who is responsible for a wrong must answer therefor. But an overwhelming majority of Parliament believed it sound policy to modify this principle to this extent.

Prior to the Taff Vale case damage suits were never brought in England against trade unions. Whatever may have been the law, they enjoyed exemption, to all practical purposes, from actions in tort. In the United States, also, labor unions until recently occupied much the same position. And this practical exemption of unions from responsibility in damages has led to no dire consequences. Exemption of trade unions and employers' associations from actions in tort does not mean that wrongs they commit are allowed to go unpunished. The union members who are guilty of acts of violence can be held therefor, both criminally and in tort; but the members who have not been direct participants in the wrongdoing cannot be held civilly liable as principals. As a curb upon union violence, it is doubtless much more effective vigorously to prosecute those who commit the violence than to take away the property of entirely innocent union members.

The exceptional position given in English law to trade unions and employers' associations rests upon the proposition that collective bargaining is socially desirable. Trade unions are such loose organizations that a rigid application of the principles of agency law is unjust. Such a doctrine operates to destroy the unions. This is even more true in the United States than in England, since many of the acts of unions that are lawful there are unlawful here.

The law conceives of no responsibility other than financial responsibility, and of no check other than that furnished by the law. But a more satisfactory check upon abuse of power by unions is the like power of employers. The protection of the public lies in the equal strength of both parties to make the wage bargain. To this end restrictions upon collective action upon either side should be removed. Thus can collective bargaining in the voluntary sense be maintained and extended.

2. MEDIATION BY GOVERNMENT

The development of large scale production and the growing complexity and interdependence of the social order have vastly increased the number and disastrousness of strikes and