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*
A L
JUN26 1917
- Al
wº- 55 05"
EAGUE TO ENFORCE INDUSTRIAL c. 47%
PEACE
BY
JULIUS HENRY COHEN
ADVANCE SHEETS FROM
PROCEEDINGS OF THE
ACADEMY OF POLITICAL SCIENCE
Nºw SERIES, No. 1, MARCH, 1917
NEW YORK
PUBLISHED BY THE
ACADEMY OF POLITICAL SCIENCE
1916
A LEAGUE TO ENFORCE INDUSTRIAL
PEACE
BY
JULIUS HENRY COHEN
ADVANCE SHEETS FROM
PROCEEDINGS OF THE
ACADEMY OF POLITICAL SCIENCE
NEw SERIES, No. 1, MARCH, 1917
NEW YORK
PUBLISHED BY THE
ACADEMY OF POLITICAL SCIENCE
1916
=<
“’N,
*
A LEAGUE TO ENFORCE INDUSTRIAL PEACE
JULIUS HENRY COHEN
I
N discussing “War and Human Progress,” Viscount Bryce
brings out the distinction between two schools of philo-
sophical thinkers or historians. One of these schools
lays stress on “the power of reason and of those higher and
gentler altruistic emotions which the development of reason as
the guide of life tends to evoke and foster” and finds in these
tendencies “the chief sources of human progress in the past,
and expects from them its further progress in the future.”
This school regards man “as capable of a continual advance
through the increasing influence of reason and sympathy ’’, and
dwells upon “the ideas of justice and right as the chief factors
in the amelioration of society.” It, therefore, regards “good-
will and peace as the goal of human endeavor in the sphere
both of national and of international life.” The other school,
less sanguine, insists “on the power of selfishness and of pas-
sion, holding these to be elements in human action which can
never be greatly refined or restrained, either by reason or by
sympathy; ” that social order “can be secured only by force,
. right itself is created only by force ", and that “it is past
force that has made what men call right and law and govern-
ment.” The tendency of this second school is “associated
with the less rational elements in man—with passion and the
§ self-regarding impulses which naturally attain their ends by
2 physical violence.”" The conflict between these two philo-
** sophies which Viscount Bryce finds is the fundamental provo-
's cative of the great international war, thoughtful persons find
; also is the fundamental provocative of industrial conflict.
sº Inevitably the rational mind finds resemblances in industrial
c
1 Atlantic Monthly, September, 1916, pp. 301-2.
4.
jº 3
situations illustrating this same conflict of philosophies. In
December 1914, Dr. Felix Adler, discussing “Militarism and
Its Eulogists,” said that while
Self-defense has generally meant standing up for one's own rights.
. anyone who stands up for his rights, who separates in mind his
right from the correlative rights of the other party, will inevitably
glide over from right into might. He will begin by exercising right
and presently change to the exercise of mere might. The only possible
way to defend ourselves from that is to bear in mind that our right
is an organ in the organism of rights. The great ethical error of
the world till now has been that in righteous self-defense men have
become most unrighteous, because in self-defense they have thought
of their right as sundered from the right of others. Yet my right
is but one blade of the shears, and the right of my fellow, even
though he be the aggressor, is the other blade.
Applying this principle applicable to the international conflict,
he finds it involved in the conflicts of laborers and employers.
Laborers protest, [he says, that their employer has been unjust,
oppressive. They combine to defend their rights, and in this they
are justified. But often the movement of protest, which began with a
strike on behalf of right, degenerates into sheer assertion of might.
The labor organization, if sufficiently strong, becomes dictatorial, per-
emptory, formulates demands inconsistent with sound business and
with the self-respect of the employer. Now so long as the present in-
dustrial system continues, so long as there are employers, the employ-
ers have certain rights, because they have certain functions. Unduly
to restrict their functions is to destroy their rights. Conversely, the
employer may begin by resisting the tyranny of labor, and in so far
as he does this we approve of his action. But presently, in defend-
ing his rights, he is apt wholly to forget the rights existing on the
opposite side, in particular the indispensable right of association.
He announces his intention to crush the union of laborers, and thus
in his blind assertion of the fractional right which is his, he destroys
the integral right which is compounded of his and theirs.”
Similarly, Professor John Dewey writes that the neutral coun-
tries find themselves
* The Standard, December, 1914, p. 125.
4
in the position of the public when there is a strike on the part of
street-railway employees. The corporation and the employees fight
it out between themselves and the public suffers and has nothing to
say.” He says that it is “the nations not at war ” who “ have the
superior right in every case" because “in the existing situation they
are the representatives of the normal interests of mankind, and so
are in the right against even the contending party that with respect
to other contenders is most nearly in the right.” Professor Dewey
says that “Our existing human intercourse requires some kind of a
mechanism which it has not got ” and that “instead of setting our-
selves in deliberate consultation to institute the needed laws of the
intercourse of nations” we wait “for new law to be struck out by
the accident of clash and victory.” +
It would seem, therefore, to be no vain prophecy to fore-
cast that if the sentiment now behind the League to Enforce
Peace should prevail and the outcome of the great inter-
national war should be the invention of new mechanism for
making reason triumphant in international relations, we shall
witness a rapid creation of institutions for subordinating in-
dustrial conflict to a reign of law. Viscount Bryce before the
recent election emphasized
the immense importance of the declarations made by Mr. Wilson
and Mr. Hughes as the leaders of the two great American parties.
. . . Both have described in clear and strong terms the interest the
American people have in the prevention of war and the duty which
lies upon it as a peace-loving people to do its utmost for Securing the
safety of the world in future by a permanent combination for the
restraint of aggression and the preservation of a general peace.”
Both candidates during the campaign pledged themselves to
the principle of arbitration in industrial disputes. Chancellor
von Bethmann-Hollweg recently said:
If at and after the end of the war the world will only become fully
conscious of the horrifying destruction of life and property, then
through the whole of humanity there will ring out a cry for peaceful
1 International Journal of Ethics, April, 1916, p. 320.
2 New York Times, October 28, 1916.
5
arrangements and understandings which, as far as they are within
human power, will prevent the return of such a monstrous catastrophe.
This cry will be so powerful and so justified that it must lead to some
result. Germany will honestly coöperate in the examination of every
endeavor to find a practical solution, and will collaborate for its
possible realization.*
In its recent report upon the car strike forwarded to the
governor of the State,” the public service commission of the
first district of New York declared:
The right of men freely to organize is a legal right no longer subject
to question. The right of men freely to select spokesmen or advisers
is a corollary of this right. The right to deal or to decline to deal
collectively with an organization is likewise a legal right. So, too,
the right to employ or to refuse to employ members of a certain
organization is a legal right, justified morally in its exercise, accord-
ing to the circumstances of each case. But the right of the state to
have its public utilities operated safely, efficiently and continuously
is also a legal right. Which of these rights is paramount? The rights
of the people, or the rights of workers or employers? Whatever
the application of these rights may be in private ventures, the right
and the duty of the state in respect to its public utilities are clearly
paramount. It is true that none of these rights of the state, the
worker or the employer—are arbitrable. But the adjustment of
these rights so that each may be respected and properly balanced
involves important considerations. While all of these parties have
clear rights, the manner of exercising them is of the highest impor-
tance. The methods commonly accepted as moral are the methods
of argument and persuasion, and the methods commonly condemned
are those of coercion or oppression. Neither should the men coerce
acceptance of their views, nor the company coerce acceptance of its
views. Even if the company has the legal right to discharge union
men, it is questionable whether it can justify itself on moral grounds.
With public utilities, where the necessities of the people depend
upon their operation, it should not be permitted to any group of men,
be they employees or employers, to inconvenience and bring distress
upon the whole people for the purpose of securing acquiescence with
1 The Sun, November Io, 1916.
* August Io, 1916.
its views. This is to substitute coercion arising out of the necessi-
ties of the public for persuasion as a method for securing recognition
of concededly non-arbitrable rights.
It is a very significant indication of the movement for judi-
cature in industrial conflict that in recent industrial contro-
versy strong and fervent appeals for arbitration come first
from one party and then from the other. In the cloak strike
of 1916 it was the union which, in its appeal to the public,
declared that it had
been consistently opposed to a warfare in the industry” and believed
“that the problems of the industry cannot be satisfactorily solved
either by 'lockouts or strikes, but only through patient resort to the
method of fairminded discussion, adjustment and democracy,” and
that its only demand was “that both sides should submit their "dis-
putes to the arbitrament of an impartial body, whether' that body be
called a board of arbitration or a council of conciliation.
In the Ig I6 railroad situation it was the national conference
committee of the railways which called upon the public to de-
cide whether or not “this wage problem (should) be settled
by reference to an impartial federal tribunal . . . or by in-
dustrial warfare.” ‘ On the other hand, in the case of the
cloak strike, the manufacturers took the position that “We do
not believe in outside bodies interfering in our affairs.” ” And
in the case of the railway employees, the leaders of the brother-
hood contended that they were
in the grip of a power greater than we [themselves].” Indeed, so
they said, they were in the condition where “the veneer of civiliza-
tion falls off, and you have the primeval man to deal with on both
sides of the question . . . and, like the primeval man, both are pre-
pared to appeal to his club. . . . In other words, they (the rail-
roads) won’t arbitrate where they fear, and there is nothing to ar-
bitrate where there is no fear.”
1 Advertisement, New York Times, June 26, 1916.
* Editorial, New York Times, May 27, 1916.
* Minutes of Hearing before the Committee on Interstate Commerce, U. S.
Senate, pp. 25 and 28.
7
Accordingly, the men refused to arbitrate. These illustrations
suffice to indicate that in our country the demand for arbitra-
tion of industrial disputes is not confined to labor or to capital,
nor is the refusal to arbitrate confined to either. The slightly
deaf gentleman, being asked concerning the points of the com-
pass, replied “You can't tell. It shifts around up here,” be-
lieving that he had been asked concerning the direction of the
wind. If you happen to be in control of the situation, or think
you are in control, you are not for arbitration. If you happen
to be weaker than the other party, or think you are, you are a
sturdy advocate of the principle of arbitration. There is no
monopoly in this country of this shiftiness of position. A
recent study of the experience of arbitration in Australasia
discloses a similar experience there. When there was a large
surplus of labor in Australasia and standards of wages were
beaten down by the competition of the unemployed, the trade
unions sought the establishment of wage boards and compul-
sory arbitration. When there was a shortage of workers and
labor secured the upper hand, it was the employers who fought
for the maintenance of arbitration.” It is significant that in
this country now, when there is a labor shortage, the demand
for industrial arbitration comes most strongly from the em-
ployers' group.” The manager of a large enterprise in St.
Louis, we are told by a trade journal, “struck the nail on the
head in advocating the appointment of a government com-
mission, to adjust differences arising between labor and capital,
just as the interstate commerce commission now adjusts troubles
between the railroads and the shippers.” “
Indeed the Syndicalists seem to be the only industrial advo-
cates who consistently decline arbitration.
Workmen quickly perceive that the labour of conciliation or of
arbitration rests on no economico-judicial basis, and their tactics
1 See Arbitration and Conciliation in Australasia, by M. T. Rankin. Lon-
don, 1916. Ch. vi, Arbitration Court System.
* See Merchants' Association of New York plan to prevent the interruption
of public utilities, Greater New York, September 25, 1916.
8 Daily Trade Record, October 28, 1916.
8
have been conducted—instinctively perhaps—in accordance with this
datum. Since the feelings, and, above all, the vanity of the peace-
makers are in question, a strong appeal must be made to their im-
aginations, and they must be given the idea that they have to accom-
plish a titanic task; demands are piled up, therefore, figures fixed in
a rather haphazard way, and there are no Scruples about exagger-
ating them; often the success of the strike depends on the cleverness
with which a syndicalist (who thoroughly understands the spirit of
social diplomacy) has been able to introduce claims, in themselves
very minor, but capable of giving the impression that the employers
are not fulfilling their social duty. It often happens that writers who
concern themselves with these questions are astonished that several
days pass before the strikers have settled what exactly they have to
demand, and that in the end demands are put forward which had not
been mentioned in the course of the preceding negotiations. This is
easily understood when we consider the bizarre conditions under
which the discussion between the interested parties is carried on.
I am surprised that there are no strike professionals who would
undertake to draw up lists of the workers’ claims; they would obtain
all the more success in conciliation councils as they would not let
themselves be dazzled by fine words so easily as the workers' dele-
gates.
When the strike is finished the workmen do not forget that the
employers at first declared that no concession was possible; they are
led thus to the belief that the employers are either ignorant or liars.
This result is not conducive to the development of social peace | *
One of the things which appear to me to have most astonished
the workers during the last few years has been the timidity of the
forces of law and order in the presence of a riot; magistrates who
have the right to demand the services of soldiers dare not use their
power to the utmost, and officers allow themselves to be abused and
struck with a patience hitherto unknown in them. It is becoming
more and more evident every day that working-class violence pos-
sesses an extraordinary efficacy in strikes: prefects, fearing that
they may be obliged to use force against insurrectionary violence,
bring pressure to bear on employers in order to compel them to give
way; the safety of factories is now looked upon as a favor which the
prefect may dispense as he pleases; consequently he arranges the use
* Reflections on Violence, by Georges Sorel. Translated by T. E. Hulme,
pp. 64, 65.
9
of his police so as to intimidate the two parties, and skilfully brings
them to an agreement.
Trade-union leaders have not been long in grasping the full bear-
ing of this situation, and it must be admitted that they have used
the weapon that has been put into their hands with great skill.
They endeavor to intimidate the prefects by popular demonstrations
which might lead to serious conflicts with the police, and they com-
mend violence as the most efficacious means of obtaining concessions.
At the end of a certain time the obsessed and frightened administra-
tion nearly always intervenes with the masters and forces an agree-
ment upon them, which becomes an encouragement to the propa-
gandists of violence.” t
Sorel says:
We cannot censure too severely those who teach the people that they
ought to carry out the highly idealistic decrees of a progressive
justice.”
There is not much difference between this philosophy of Sorel's
and the point of view of many—Praise be the Lord! not all—
successful employers and successful leaders of labor. The
writer in the financial columns of a daily paper in New York
appeals to business men to realize what it means to find the
attitude of labor “like that of capital. Both take what they
can get in the present, intent only upon the highest profit; both
refuse to be responsible for the sequel, and neither one can
spare the time to attend to the future.” “ Goethe saw this
struggle for power, the unwillingness to surrender power and
the unwillingness to be bound by power. The thirst for power
would not let the ghost be laid:
How often has it risen Yes, and it will rise
Ever and evermorel No man yields sovereignty
Unto his fellow: none will yield to him
Who won the power by force, and by force keeps his hold.
For man, who cannot rule his own unruly heart,
Is hot to rule his neighbor, bind him to his will.
1 Sorel, Reflections on Violence, pp. 69-70.
* Idem., p. 122.
8 Garet Garrett, Finance-Economics, New York Tribune, October 23, 1916.
IO
II
But the “neutral ” in industrial warfare, like the “neutral ”
in international warfare, is securing a standing in court. He is
becoming an amicus curiae. In the recent milk strike in New
York—a strike, be it observed, called not by the proletariat, but
by capitalists, i. e., farmers, owners of real estate—an attempt
by capitalists to fix the price of milk by collective bargaining,
upon the ground, indeed, that the farmer (a capitalist) was
not earning a “living wage ’’—at the very moment that these
capitalists were practising sabotage, overturning and emptying
milk cans in the up-state highways, the babe in its mother's
arms, dependent for its life upon this wasted milk, cried out
its neutral protest. Wherefore the editors pass comment that
The interests of no group in the community are more important than
the public interest. The well-being of all should never be permitted
to suffer because some special portion of the whole is seeking its own
well-being in its own way. The public should never be put in the
position of the “innocent bystander ’’ at a street fight, who often
receives the severest injuries."
And they prophesy that:
The next great public problem is to work out the means by which
organized groups of individuals, whether they represent labor and
capital, or production and distribution, or merely rival interests in a
single field, shall be compelled to settle their differences peaceably,
to accord justice to each other, and to observe the rights of the
people.
The “neutral ” is more and more securing a hearing for his
claims, not merely because of the disturbance of his immediate
comfort, not merely because his breakfast bottle of milk is
absent from his door-step, or his coal supply is shortened, or
the street cars are delayed in running. There is cordial accept-
ance of the thought that there can be no interruption in the
arterial service of the social organism without disturbing the
whole system. Sometimes it is the lungs who try to make us
1 Independent, October 23, 1916.
I I
believe that they are the most important member, but more
often quiet little members of the family, less vocal than the
lungs, remind us with twinges of pain that it is not the noisiest
member who can make the most trouble. In certain fields of
industrial activity for a long time there has been clear accept-
ance of the principle that the rights of the parties involved are
ever subordinate to the public interest. Notwithstanding the
vast grant of power to the interstate commerce commission,
enlightened railway executives appeal for grant of more power.
No student of the decisions of the commission can fail to be
impressed with the maze of discrimination, rebating and un-
fair practices left utterly without control on the part of the
state or nation until this latent power was institutionalized.
In the Express Rates case, Commissioner (now Secretary)
Lane said:
It is to be borne in mind that these carriers (meaning the express
companies) remained for twenty years entirely without regulation
as to interstate traffic after the railroads had become subject to this
act, and that various efforts to remedy existing conditions made by
individual carriers had failed because of lack of harmonious action
and the inability of the government to compel them to adopt prac-
tices that were just and non-discriminatory."
It is a similar “ lack of harmonious action ” between employers
and employees and a similar “inability of the government to
compel them to adopt practices that were just and non-discrim-
inatory " that leaves us still in a condition of mitigated syndi-
calism. The railroad enterprises of the country were obliged
under the pressure of government to work out the intricate
problems of popular control in relation to technical adminis-
tration. Walter Lippmann points out that “on the capacity
of labor to develop an efficient government for itself hangs
the decision as to how much responsibility the unions can af-
ford to assume. It is the development of a citizenship in in-
dustry that the labor movement has before it. It will have
1. In re Express Rates, Practices, Accounts, and Revenues. 24 I. C. C. 381,
at 389.
I 2
to work out the intricate problem of popular control in relation
to technical administration.” Business is under the control
of government. Do the business men of the country realize
that the federal trade commission will ultimately determine
what constitutes the ethics of competition; and thus limit and
determine the daily life of all trade? True, the act contains
in itself but a very simple mandate, namely, “That unfair
methods of competition in commerce are hereby declared un-
lawful.” ” Yet the commission is given the broadest powers
to determine what constitutes “unfair methods of competition
in commerce ’’ and to restrain by order those acts which it de-
termines to be unfair. The commission is not controlled by
legal precedents in its determination of what constitutes un-
fair practices. It can establish entirely new precedents or
itself follow more modern precedents. It can follow the recent
Massachusetts case, in which the court adopted the principle
that, since all property rights proceed from the state, they must
be used for the common good of all the subjects of the state.
In that case the definite question arose whether an association
of granite workers could, by a system of fines, preclude any of
its members from trading with one who was not a member and
so destroy his business of quarrying granite. The court held
that it could not, saying:
To what extent combination may be allowed in competition is a mat-
ter about which there is as yet much conflict, but it is possible that,
in a more advanced stage of the discussion, the day may come when
it will be more clearly seen and will more distinctly appear in the
adjudication of the courts than as yet has been the case; that the
proposition that what one man lawfully can do, what any number of
men acting together by combined agreement may do, is to be received
with newly disclosed qualifications arising out of the changed con-
ditions of civilized life and of the increased facility and power of
organized combination, and that the difference between the power
of individuals, acting each according to his preference, and that of
an organized extensive combination may be so great in its effect upon
1 Drift and Mastery, p. 97.
* Federal Trade Commission Act, Sec. 5.
I3
private and public interests as to cease to be simply one of degree
and to reach the dignity of a difference in kind.”
A writer upon “The Morals of Monopoly and Competition ”
says that in this decision
we have a clear grasp of the modern situation and a clear recognition
that changes in the conditions of civilized life call for equal changes
in business methods and principles applicable to these changed condi-
tions, that although it may be logically inferred that what one man
may do singly he may also do jointly with others, results may prove
this an invalid conclusion, and the difference in conditions may be
so important as to make the inference impossible.”
Railroad men have already realized what public regulation
means. Electric light companies now know what it means to
be regulated by public service commissions. Express com-
panies now know that they must make rates subject always to
revision by the interstate commerce commission. Business men
generally will realize soon that, under the broad powers con-
ferred upon the federal trade commission, they are subject
to the same kind of governmental control. Business conduct
which a decade ago would have been regarded as “good busi-
ness '' is now condemned not only as morally unsound, but as
illegal and subject to criminal penalties. This not merely as
to cut-throat and predatory competition and the methods of
the old-fashioned “octopus,” but to more modern practices,
such as the misuse of trade names and the misrepresentation
of the quality of an article. We have traveled a long distance
from the philosophy of the decision in the great Mogul steam-
ship case, wherein Lord Chief Justice Coleridge permitted him-
self to say:
It must be remembered that all trade is and must be in a sense selfish ;
trade not being infinite, nay the trade of a particular place or
district being possibly very limited, what one man gains another
loses. In the hand-to-hand war of commerce . . . men fight on
1 Martell v. White, 185 Mass. 255, 259, 260.
2 Homer Blosser Reed, International Journal of Ethics, January, I916, p.
273.
I4.
without much thought of others, except a desire to excel or defeat
them. Very lofty minds, like Sir Philip Sidney with his cup of
water, will not stoop to take an advantage, if they think another wants
it more. Our age, in spite of high authority to the contrary, is not
without its Sir Philip Sidneys; but these are counsels of perfection
which it would be silly indeed to make the measure of the rough
business of the world as pursued by ordinary men of business.”
In the same case Lord Justice Fry said:
I know no limits to the right of competition in the defendants—
I mean, no limits in law. I am not speaking of morals and good
manners. To draw the line between fair and unfair competition,
between what is reasonable and unreasonable, passes the power of the
courts. Competition exists when two or more persons seek to possess
or enjoy the same thing; it follows that the success of one must be
the failure of another—and no principle of law enables us to inter-
fere with or to moderate that success or that failure so long as it is
due to mere competition.”
Lord Justice Bowen said:
To say that a man is to trade freely but that he is to stop short at
any act which is calculated to harm other tradesmen, and which
is designed to attract business to his own shop, would be a strange
and impossible counsel of perfection ” and that “To attempt to limit
English competition in this way would probably be as hopeless an
endeavor as the experiment of King Canute.”
The abuses of railroad management, then, the evils of un-
regulated monopoly and competition, are not beyond the arm
of the state. The capitalistic employer is in the grip of the
law. In the interest of the “neutral,” the weak needing the
protection of the state is given help. Instead of the philo-
sophy of “To him that hath shall be given,” the more modern
philosophy of “giving to each according to his needs " con-
trols. Behind the workmen's compensation acts and the na-
tional child-labor law is the same great purpose. The arm of
* 21 L. R. Q. B. D. 544, at 553-4.
* 23 L. R. Q. B. D. 598, at 625-6.
* 23 L. R. Q. B. D. 598, at 615-16.
I5
the state is stretched out to guard the worker and the little
child. Conditions of public service and of private service are
regulated in the interest of the worker and of the consumer.
The new justice involves simply a subtler and more far-reaching
analysis of the human situation. It involves a recognition of the
wholly inescapable social interrelations. . . . The new theory of
rights assumes that men together create their destinies, that rights
grow as needs increase, and that these rights are not simply to be
protected but to be nurtured and developed.*
When labor is the dominant power, is the weak to be left
without protection of the law P
In short, [as another writer puts it] during the last few years in
America we have been developing with all our energy the highest
art of all arts—the art of living together. I believe this to be “the
one idea more powerful than any other ” that is shaping the events
of our time.”
III
Why are business men resorting to commercial arbitration?
The “art of living together ” in business necessarily involves
the elimination of human friction and the elimination of waste.
Our judicial machinery is too cumbersome, too expensive and
too provocative of hatred. According to modern understand-
ing, it is not efficient. The national movement for efficiency in
commerce and industry must soon bring us to a point where we
shall look with shame and mortification upon our antiquated
machinery for disposing of commercial controversy and upon
our medieval methods for disposing of industrial controversy.
Does it not concern the “neutral ” that in three months upon a
street-railway line there is a net deficit of $372,471 compared
with earnings of $326,015 in the same period of the year
previous—due to a street-car strike?” I have received from
* Harry Allen Overstreet, Philosophy and the New Justice, International
Journal of Ethics, April, 1915, p. 289.
* Ray Stannard Baker, The New Republic, December 5, 1914, p. 21.
* The Sun, October 27, 1916, reporting deficit on the Third Avenue system.
In one month the revenue of another line dropped $608,065. New York Times,
November 13, 1916.
I6
L. W. Hatch, chief statistician of the New York state indus-
trial commission, the following table of working time lost in
strikes and lockouts in New York state for the ten years 1906-
1915 inclusive: -
WORKING TIME LOST IN STRIKES AND LOCKOUTS IN NEw York STATE
Year Ended Number of Aggregate days
September 30 strikes and lockouts of working time lost
1906 . . . . . . . . . . . . . . . . 245 I,668,281
I907 . . . . . . . . . . . . . . . . 282 I,724,260
1908 . . . . . . . . . . . . . . . . I6O 396,725
1909 . . . . . . . . . . . . . . . . 176 I,061,094
I910 . . . . . . . . . . . . . . . . 250 5,783,394
I9 II . . . . . . . . . . . . . . . . 2I5 - 2,360,092
I912 . . . . . . . . . . . . . . . . 184 I,5I2,234
1913 . . . . . . . . . . . . . . . . 268 7,741,247
1914 . . . . . . . . . . . . . . . . I23 I,426,118
1915 . . . . . . . . . . . . . . . . IO4 868,838
This shows a total number of aggregate days of working time
lost amounting to 24,542,283. If we assume an average of
but $2 a day, this means a loss in this period in the state of
New York in wages alone of $49,084,566. The recent cloak
strike in New York is estimated to have cost the union $750,000
for strike benefits and other expenses and the manufacturers'
association a like amount, if not more, while the loss in wages
to the cloakmakers amounted to $3,000,000, and business and
profits to the manufacturers far exceeded this sum."
Professor Wigmore says:
Few laymen, and fewer lawyers, stop to reflect that the system of
legal justice keeps changing slowly, from epoch to epoch, in its con-
tents, the subjects of its rules and dispensations.
Professor Wigmore sees in the wings a new body of American
law developing in the field of industrial controversy; “spon-
taneously, in our own country, work in the same field has be-
gun. . . . Lawyers should awaken to this coming enlargement
of the field of systematic justice. . . . The significant thing
is that general principles are beginning to be formulated. And
* Report of Morris Hillquit to Mayor Mitchel, Daily Trade Record, August
5, 1916.
17
the moment you have general principles, used for deciding
particular cases, you have justice in the form of law, as dis-
tinguished from the arbitrary justice of a Turkish Caliph, or
from private struggle decided by private force.” "
When the balance sheet of the great war is made up, and we
shall all have to foot the bill, the inefficiency, the wastefulness
of our medieval methods for settling industrial controversy will
become intolerable. We shall soberly come to the reflection
that in each instance the root of the evil is a fundamentally
wrong philosophy. When we are stirred up, when public
opinion is screwed up to the sticking point, we shall demand
new law and new institutions.
When we arrive at this point, we shall find much to learn
from a study of the evolution of our present legal institutions.
Sir Frederick Pollock has graphically described the general
impotence of the English state in the administration of justice
during the Anglo-Saxon period.
Rigid and cumbrous as Anglo-Saxon justice was in the things it did
provide for, it was, to modern eyes, strangely defective in its lack
of executive power. Among the most important functions of courts
as we know them is compelling the attendance of parties and enforc-
ing the fulfilment both of final judgments and of interlocutory orders
dealing with the conduct of proceedings and the like. Such things
are done as of course under the ordinary authority of the court,
and with the means constantly at its disposal; open resistance to
judicial orders is so plainly useless it is seldom attempted, and ob-
stinate preference of penalties to submission, a thing which now
and then happens, is counted a mark of eccentricity bordering on
unsoundness of mind. Exceptional difficulties, when they occur,
indicate an abnormal state of the commonwealth or some of its mem-
bers. But this reign of law did not come by nature; it has been
slowly and laboriously won. Jurisdiction began, it seems, with being
merely voluntary, derived not from the authority of the state but
1 A New Field for Systematic Justice, Io Illinois Law Review, No. 8, March,
1916. Editorial Notes, pp. 592, 593, 594, 595. See also The Development of
Government in Industry, by Earl Dean Howard, Io Illinois Law Review, No. 8;
The Need for Industrial Jurisprudence, by Walston Chubb, The Standard,
March, 1916; A New Province for Law and Order, by Henry Bournes Hig-
gins, Harvard Law Review, Vol. XXIX No. 1.
I8
from the consent of the parties. People might come to the court for
a decision if they agreed to do so. They were bound in honor to
accept the result; they might forfeit pledges deposited with the
court; but the Court could not compel their obedience any more than
a tribunal of arbitration appointed at this day under a treaty between
sovereign states can compel the rulers of those states to fulfil its
award. Anglo-Saxon courts had got beyond this most early stage,
but not very far beyond it. -
The only way to bring an unwilling adversary before the court
was to take something of his as security till he would attend to the
demand ; and practically the only things that could be taken without
personal violence were cattle. Distress in this form was practised
and also regulated from a very early time. It was forbidden to
distrain until right had been formally demanded—in Cnut's time to
the extent of three summonings — and refused. Thus leave of the
court was required, but the party had to act for himself as best he
could. If distress failed to make the defendant appear, the only
resource left was to deny the law's protection to the stiff-necked man
who would not come to be judged by law. He might be outlawed,
and this must have been enough to coerce most men who had anything
to lose and were not strong enough to live in rebellion; but still no
right could be done to the complainant without his submission. The
device of a judgment by default, which is familiar enough to us, was
unknown, and probably would not have been understood.
Final judgment, when obtained, could in like manner not be di-
rectly enforced. The successful party had to see to gathering the
“fruits of judgment,” as we say, for himself. In case of continued
refusal to do right according to the sentence of the court, he might
take the law into his own hands, in fact wage war on his obstinate
opponent.*
Is this not an accurate photograph of the existing condition of
the law of our present dealing with industrial controversy P
No power by which parties can be compelled to arbitrate their
differences. No power, even after they have submitted, to
compel them to observe the awards. The parties left to volun-
tary agreement or to fighting it out amongst themselves. Like
the Anglo-Saxon litigant, no one can bring any other one into
court. Violence in both cases the outcome. In the absence
* Expansion of the Common Law, pp. 145-6.
I9
of law, resort to force. The public service commission of the
first district, reporting upon the recent car-strike in the city
of New York, brings sharply to the attention of the public
this weakness in the existing law. In the case of each side,
it finds voluntary agreements to arbitrate violated without
remedy.
There is no doubt that men have the right to refrain from working
and any rule that requires a man to work against his will is in the
nature of slavery. On the other hand, there are positions of public
service that require the performance of instant duty; for example,
the policeman or the fireman may not throw up his job while on duty,
though he may resign his position.
It may very well be considered at this time whether or not the
principle should be extended to the extent of saying that it is against
the public interest that men employed on railroad or other public
utilities may, without notice, exercise their right to quit their jobs
in a group, thus Crippling if not totally arresting the operations of
public utilities, to the great damage of the public. We are not un-
dertaking now to suggest what remedy, if any, may be just and prac-
ticable, but it is already the law that the matter of the operation of
public utilities is a matter of state regulation. Is the quitting of the
service a matter for state regulation?
IV
So far as public utilities are concerned, we cannot escape
the logic that the regulation of rates and of service carries with
it the duty to regulate conditions and rewards of employment.
It is no longer open to dispute that Congress, in so far as re-
lates to matters of interstate commerce, and the states, in so far
as relates to matters of intrastate commerce, have the power.
Mr. Justice Hughes, writing the opinion of the United States
Supreme Court, in 1910 said: “By virtue of its power to regu-
late interstate and foreign commerce, Congress may enact laws
for the safeguarding of the persons and property that are
transported in that commerce, and of those who are employed
in transporting them. Johnson v. Southern P. Co., 196 U. S.
I, 49 L. ed. 363, 25 Sup. Ct. Rep. I58; Adair v. United States,
208 U. S. pp. 177, 178, 52 L. ed. 443, 444, 28 Sup. Ct. Rep.
2O
2 I 7, I 3 A. & E. Ann. Cas. 764; St. Louis I. M. & S. R. Co. v.
Taylor, 2 IO U. S. 281, 52 L. ed. IO61, 28 Sup. Ct. Rep. 616;
Chicago, B. & Q. R. Co. v. United States, decided May 15, 1911
(22O U. S. 559, ante, 582, 3 I Sup. Ct. Rep. 612). The funda-
mental question here is whether a restriction upon the hours of
labor of employees who are connected with the movement of
trains in interstate transportation is comprehended within this
sphere of authorized legislation. This question admits of but
one answer. The length of hours of service has direct relation
to the efficiency of the human agencies upon which protection
to life and property necessarily depends. This has been re-
peatedly emphasized in official reports of the Interstate Com-
merce Commission, and is a matter so plain as to require no
elaboration. In its power suitably to provide for the safety of
employees and travelers, Congress was not limited to the en-
actment of laws relating to mechanical appliances, but it was
also competent to consider, and to endeavor to reduce, the
dangers incident to the strain of excessive hours of duty on the
part of engineers, conductors, train despatchers, telegraphers,
and other persons embraced within the class defined by the act.
And in imposing restrictions having reasonable relation to this
end there is no interference with liberty of contract as guaran-
teed by the constitution. Chicago, B. & Q. R. Co. v. McGuire,
219 U. S. 549, ante, 328, 3 I Sup. Ct. Rep. 259.” “ Indeed,
the Adamson Eight Hour Bill is based upon the theory that
Congress, having the power to regulate the service, has power
to fix the hours of labor or the compensation. In accepting
the Adamson Bill, the railway brotherhoods bowed before the
power of the State. This phase of the incident has not been
emphasized. The brotherhoods have not always been ready to
go to Congress for legislative regulation of hours of labor. In
one sense what they accomplished may be regarded as a victory,
but in another may be regarded as a setback. There was clear
recognition that, in the development of public opinion, the time
had arrived when the public's rights were paramount. Under
* Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U. S.
612, at 618-619, 55 L. ed. 878, at 882-3.
2 I
the title, “The Public Welfare Supreme,” The Independent
says that labor organizations had been
repeating the blunder that far more powerful organizations have
made from time to time since the Christian era began, and for which
they have severely suffered.” This blunder, it says, is that “of
asserting the alleged right of any organization whatever to exist on
its own terms, irrespective of the welfare of the general public as
interpreted by the sovereign people.” This blunder, it says, was
made by the Roman Catholic Church, by the Mormon Church, and
by the great Corporate business interests, the latter “to be brought
under more and more strict control by state legislatures and courts,
the national Congress and the United States Supreme Court.” But
“The right of the public to enjoy civilized order, as Chairman Straus
of the Public Service Commission admirably put it the other day, is
the Supreme right. At all costs it must be maintained; by over-
whelming force if necessary." &
The fundamental principle that the rights of employees, like
the rights of stockholders, are subordinate to the rights of the
public, in the operation of public utilities, is already imbedded
in the law of the state of New York. By section 26 of the
Public Service Commissions Law every railroad corporation,
person or common carrier is required to furnish “such ser-
vice and facilities as shall be safe and adequate and in all re-
spects just and reasonable,” and is required to furnish such
services at charges that “shall be just and reasonable and not
more than allowed by law or by order of the commission
having jurisdiction and made as authorized by this chapter.”
Section 49, authorizing the commission to fix rates and service,
says that if the commission finds that the maximum rates, fares
or charges
are insufficient to yield reasonable compensation for the service ren-
dered, and are unjust and unreasonable, the commission shall with
due regard among other things to a reasonable average return upon
the value of the property actually used in the public service and to
the necessity of making reservation out of income for surplus and
contingencies, determine the just and reasonable rates, fares and
1 Vol. 88, no. 3539, October 2, 1916, p. 6.
22
charges to be thereafter observed and in force as the maximum to be
charged for the service to be performed, notwithstanding that a
higher rate, fare or charge has been heretofore authorized by statute,
and shall fix the same by order.
Under section 55, for the purpose of approving issues of stock,
bonds and other forms of indebtedness, the commission must
be satisfied that
the money, property or labor to be procured or paid for by the issue
of such stock, bonds, notes or other evidence of indebtedness is or has
been reasonably required for the purposes specified in the order, and
that except as otherwise permitted in the order in the case of bonds,
notes, and other evidence of indebtedness, such purposes are not, in
whole or in part, reasonably chargeable to operating expenses or to
income.
(Throughout the act will be found provisions covering other
public utilities.) It is true that heretofore it has been as-
sumed that, in determining the reasonableness of rates or the
reasonableness of stock or bond issues, the public service com-
mission was not required to take into account standards of
wages or hours of labor, or the manner in which employees
in the service were required to perform the service. There
is, however, no escape from the logic that if a commission is
to regulate the safety of the service, the reasonableness of the
rate and the justifiability of stock or bond issues, it must, of
necessity, consider the wages and hours of those who perform
the service quite as much as it must consider the interest, the
dividends and the adequacy of the purely mechanical parts of
the utility. In the United States Senate on August 3Oth last,
in the discussion of the various existing statutory methods for
compulsory or voluntary arbitration of industrial disputes, tak-
ing the position that it is not within the power of Congress to
compel a man to work against his will, Senator Cummins says:
I have little doubt that it is within our power to make unlawful a
combination of employees looking to a strike in concert. We could
not simply make it unlawful to strike. All that we could possibly
23
make unlawful would be the combination or the conspiracy to strike.”
And “It is apparent that these disputes which so vitally affect the
whole body of the people should be settled, if possible, by an impar-
tial tribunal, and I do not think of it as an arbitration; I think of it
as a court, composed of men of the highest character and greatest
attainments; a court composed wholly of members who have no pos-
sible interest in the controversy, and who have the same sense of high
responsibility which we expect of men chosen to exercise the judicial
office. It must be composed of men in whom the entire country has
confidence, of humanitarians who are looking constantly for the true
pathway to a better civilization. If we can secure such a court, the
strike, in concert or combination, may, for a time and in a degree, be
subordinated to its judgments.” ” Coming directly to the matter of
disputes upon the railroads of the country, Senator Cummins said:
“Undoubtedly Congress could prescribe maximum hours of work
upon railways engaged in interstate commerce.” ”
Asked specifically by Senator Norris if he thought that Con-
gress would have the constitutional right to fix the compensa-
tion as well as the hours, he said:
Unquestionably Congress has authority to prescribe both minimum
and maximum wages to be paid by such railway companies. It is
true that regulation of this character might sometimes be overthrown
in the courts if challenged as unreasonable or arbitrary, because there
is no well-established standard for compensation in the various occu-
pations of life.”
In coming to the opinion that the power of the government,
national and state, to regulate public utilities in the matter of
service and rates includes the power to determine the wages
which shall be paid and the hours within which the work may
be performed, the conservative senators do not hesitate to ac-
cept the conclusion that this would necessarily involve the
regulation of the salary of officers. Senator Cummins, recog-
nizing fully the power of Congress to regulate wages and
hours upon the railroads, questions only the power of Congress
1 Congressional Record, August 30, 1916, p. 15677.
2 Idem., p. 15679.
8 Congressional Record, August 30, 1916, p. 15679.
24
to delegate this power to a commission.” But certainly when
Congress can delegate to a trade commission the determina-
tion of what in each case constitutes “unfair methods of com-
1 The following discussion between Senators Norris and Cummins is instruc-
tive :
MR. Norris. Does the Senator think there is any greater constitutional
authority conferred upon such a tribunal as he has been describing to fix, mot
necessarily the maximum and minimum, but the absolute compensation of var-
ious kinds of employees than there is conferred upon the same tribunal the
right to fix a rate that shall be charged, of which the salaries of all the
employees and officials must be one of the component parts?
MR. CUMMINS. There is a little difference in the constitutional authority.
From time immemorial the standard which is applied to test the validity of a
rate imposed by a common carrier has been known theoretically at least. When
we created the interstate commerce commission we gave to this commission the
standard which had been for centuries the law with regard to the transporta-
tion of persons and property by common carriers, and the courts have held that
that is a sufficiently definite standard to warrant the delegation of power which
the interstate commerce law involves.
Now, mark you, I am not speaking of Congress; but when Congress would
attempt to delegate the power to fix wages, what is the standard, what is the
rule? What is to determine whether a man ought to be paid $2 a day or $5
a day or $10 a day ? I do not know of any standard at all.
MR. BoRAH. Would the phrase “a fair and reasonable wage ’’ be any more
definite or less definite than “unfair competition ” or “a reasonable rate ’P
MR. CUMMINs. I think it would be very much less definite. Both unfair
competition and reasonable rates for the carriage of persons or property have
become fairly well established. But it is not necessary for me to argue the
matter. If the power exists, it is to be exercised through regulation and is not
involved in the subject I am discussing. You cannot compel a man to work
for any wage that the commission may fix.
xk >k >k >k Sk >k >k ::
MR. Norris. I concede the point the Senator has made. It was not the
object of my question to contest that, but I was wondering if the board or
tribunal, or whatever it is the Senator has been describing, has the authority
to fix a rate and a part of that rate is made up of the salaries that the president
of a road draws and the brakemen draw, that being a part of the rate that it
is considered they have the constitutional right to fix, and we have the consti-
tutional right to provide, if we define it as we did in the power to fix the rate,
that the salaries of all the employees and officials should be reasonable, that
being a part of the rate, why could they not fix those rates; and when they
were fixed would they not partake much of the same as a governmental posi-
tion, and a strike would probably be unknown in regard to it if they controlled
the entire situation ?
(Congressional Record, Aug. 30, 1916, p. 15680.)
25
petition,” it can delegate to a commission the power to deter-
mine what is “a fair and reasonable wage" or what is “a fair
and reasonable working day.” Every lawyer knows that a
contract of hiring which contains no definite sum for com-
pensation is a contract for quantum meruit, and the jury deter-
mines according to the circumstances of the case, and, possibly,
upon the evidence of experts, what is “fair and reasonable
compensation.” I do not believe the point made by Senator
Cummins is sound. If Congress has the power, there is no
difficulty in delegating that power to a commission. There
is, as I see it, no constitutional difficulty in the way of regu-
lating conditions of employment upon public utilities. We
should not forget that there was a time when there was a pub-
lic policy supporting yet broader and restrictive regulation of
wages and conditions of employment. Beale and Wyman, go-
ing back to a review of governmental regulation of business
during the late Middle Ages, say:
Not only did the law regulate business indirectly through the courts,
Parliament itself frequently regulated prices of the necessaries of life
by direct legislation. The great staples like wool and food were
habitually regulated in this way, and the employment and price of
labor was a subject of statutory provision. Thus, in 1366, Henry III,
after reciting former statutes to the same effect, regulated the price
of bread and ale according to the price of wheat and barley, and for-
bade forestalling, that is, cornering the market. In 1344 the ordi-
nances fixing the export price of wool were repealed after some years
of trial. In 1349 all laborers were obliged to serve for the customary
wages; and “butchers, fishmongers, regrators, hostelors (i. e., inn-
keepers), brewers, bakers, poulterers, and all other sellers of all man-
ner of victuals’’ were bound to sell for a reasonable price. These
statutes continued in force throughout the middle ages, and until the
settlement of America.”
It is true that Section 6 of the Clayton Act reads as follows:
That the labor of a human being is not a commodity or article of
commerce. Nothing contained in the anti-trust laws shall be con-
strued to forbid the existence and operation of labor, agricultural, or
1 Railroad Rates Regulation, p. 7.
26
horticultural organizations instituted for the purposes of mutual help
and not having capital stock or conducted for profit, or to forbid or
restrain individual members of such organizations from lawfully
carrying out the legitimate objects thereof, nor shall such organiza-
tions, or the members thereof, be held or construed to be illegal com-
binations or Conspiracies in restraint of trade under anti-trust laws.
In discussing this amendment in the light of the decisions al-
ready rendered, Ex-President Taft, addressing the American
Bar Association in 1914, said that this provision “was not in-
tended to make members of such associations (i. e., labor,
agricultural, etc.) a privileged class and free from the oper-
ation of general laws" and that in all probability “when the
statute is construed by the courts it will keep the promise of the
labor leaders to the ear and break it to the hope of the ranks
of labor.”
Since Professor Taft delivered this legal opinion, the courts
have been called upon to pass upon this section, and the recent
decision of Dowd v. United Mine Workers of America, 235
Fed. Rep. I, indicates that Mr. Taft was not far wrong in his
conclusions. In that case the court held that the United Mine
Workers of America, though unincorporated, were not only
subject to the provisions of the Anti-Trust Act, but that they
could be sued as parties for treble damages. And that, if by
conspiracy and combination they injured the business and
property of the coal companies, the fact that their unlawful
acts did not relate directly to interstate commerce is not a
defense. This decision, taken in connection with the decision
of the supreme court of Massachusetts holding unconstitutional
a similar provision of the state law of Massachusetts * to the
* Bogni v. Perotti, 224 Mass. I52, II2 N. E. 853. The provisions in St. 1914,
C. 778, Sec. 2, declaring that “in construing this act’ the right to labor and
to make and modify contracts to work “shall be held and construed to be a
personal and not a property right" and prohibiting the granting of an in-
junction to enforce such a right “where no irreparable damage is about to be
committed upon the property or property right of either ” employee or em-
ployer, are unconstitutional and void, for the reason that it deprives those
employed in labor of “the equal protection of the laws’ guaranteed by the
federal constitution and by the equivalent provision in the Massachusetts bill
of rights. “. . . the power of courts to afford injunctive relief cannot be im-
27 *.
effect that labor is not a commodity, must bring the enlight-
ened and intelligent labor leaders of the country to the reali-
zation that by no legislative process can they escape the conse-
quences of any restraint of trade which, if committed by a busi-
ness association, would be in violation of the law. Under the
law, as the Attorney General of the United States said in the
Northern Securities case, “whether it is a mob, a monopoly,
or a sand bank,” whatever interferes unlawfully with trade or
commerce is subject to the law. Interpreting the Trade Com-
mission Act in the light of the Dowd case and Loewe v.
Lawler," there would seem to be no reason why employers
should not apply to the trade commission in cases of boycotts
or strikes for relief of the same character that competitors
now secure against unfair competition.
V
Our law is not impotent. On the contrary, it is all-power-
ful. Students of judicial precedents have repeatedly pointed
out the recent change in judicial opinion. “Only twenty-five
paired by the legislature in such a way as to prevent its use in favor of one
property owner, when it is preserved for the benefit of other property owners.”
In that case, Bogni and others, as members of the General Laborers' Industrial
Union No. 324 of the Industrial Workers of the World, brought suit against
the Hod Carriers Building and Common Laborers’ Union, Local 209, affiliated
with the American Federation of Labor. The contest was between two labor
unions seeking similar employment for their members as laborers in the
building trades. The court said: (p. 156) “The right to make contracts to
earn money by labor is at least as essential to the laborer as is any property
right to other members of society. If as much protection is not given by the
laws to this property, which often may be the owner’s only substantial asset,
as is given other kinds of property, the laborer stands on a plane inferior to
that of other property owners. Absolute equality before the law is a funda-
mental principle of our own constitution. To the extent that the laborer is not
given the same security to his property by the law that is granted to the land
owner or capitalist, to that extent discrimination is exercised against him.”
These two principles—that the right to make a contract is a property right and
that equal resort to the courts must be accorded to all men—have been com-
pletely ignored in the formulation of its legislative program by the American
Federation of Labor. Like the employers spending energy in an effort to de-
stroy trades unionism, this effort to destroy fundamental principles of Amer-
ican law is futile. The energy should be otherwise utilized—in both instances.
1208 U. S. 274.
28
years ago (19 II) the general feeling as to every sort of in-
dustrial relation was that it was better to leave all alone, that
it was better to leave people to work out their own salvation.” "
Today we apply the rule of salus populi suprema est lear to all
property clothed “with a public interest" and “Property be-
comes clothed with a public interest when it is used in a man-
ner to make it of public consequence and to affect the com-
munity at large.” “
The famous Peel Splint opinion * is like a blinding headlight
in the darkness of a new highway. It may dazzle, but it
lights the way.
We base the decision in this case: First, upon the ground that the
defendant is a corporation in the enjoyment of unusual and extra-
ordinary privileges which enable it and other similar associations to
surround themselves with a vast retinue of laborers, who need to be
protected against the fraudulent or suspicious devices in the weighing
of coal or payment of wages for labor. Secondly, the defendant is a
licensee, pursuing a vocation which the state has taken under its gen-
eral Supervision for the purpose of securing the safety of employes,
by ventilation, inspection and government report, and the defendant,
therefore, must submit to such regulations as the sovereign thinks
conducive to public health, public morals and public security. We
do not base this decision So much upon the ground that the business
is affected by the public use, but upon still higher ground, that the
public tranquillity, the good and safety of society, demand, where the
number of employes is such that specific contracts with such laborers
would be improbable, if not impossible, that in general contracts jus-
tice shall prevail as between operator and miner; and, in a company's
dealings with a multitude of miners with which the state has by
special legislation enabled the owners and operators to surround
themselves, that all opportunities for fraud shall be removed. The
state is frequently called upon to suppress strikes; to discountenance
1 Wyman on State Control of Public Utilities, Harvard Law Review, June,
1911. Also in Orth's Readings on the Relation of Government to Property
and Industry, p. 286.
* Munn v. Illinois, 94 U. S. II.3.
* Peel Splint Co. v. State, 36 W. Va. 802. Reasoning of the case affirmed
and language quoted with approval by the U. S. Supreme Court in Knoxville
Iron Co. v. Harbison, 183 U. S. I3, 22 Sup. Ct. I.
29
labor conspiracies; to denounce boycotting as injurious to trade and
commerce; and it cannot be possible that the same police power may
not be invoked to protect the laborer from being made the victim of
the compulsory power of that artificial combination of capital which
special state legislation has originated and rendered possible. It is a
fact worthy of consideration and one of such historical notoriety that
the court may recognize it judicially, that every disturbance of the
peace of any magnitude in this state since the civil war has been
evolved from the disturbed relations between powerful corporations
and their servants and employes. It cannot be possible that the state
has no police power adequate to the protection of society against the
re-occurrence of these disturbances, which threaten to shake civil
order to its very foundations. Collisions between the capitalist and
the working man endanger the safety of the state, stay the wheels of
commerce, discourage manufacturing enterprises, destroy public con-
fidence and at times throw an idle population upon the bosom of the
community.
The law is ready. It is public opinion that dallies. The
state has power to take action “when the contestants are not
able to settle their controversies between themselves, and the
public peace and welfare are being jeopardized, in stepping
in and prescribing the rules and regulations under which the
industries shall be conducted.” “ The field of governmental
interference is being constantly extended. Business and oc-
cupations formerly unknown or of little importance are now
being regulated and their charges and actions controlled.
When any industry secures sufficient control to disturb the
public peace or its owners are constantly requiring the aid
of the state for protection, the business to that extent becomes
affected with a public interest.” The right of regulation now
legally covers electric light companies operating upon the
public streets, railroad bridge companies, telephone and tele-
graph companies, water companies, sewerage companies, irri-
1 Judge Alexander A. Bruce of the Supreme Court of North Dakota,
Michigan Law. Review, June, 1909. Also in Orth’s Readings on the Relation
of Government to Property and Industry, p. 307.
* Idem, pp. 300, 301 (Orth).
3O
gation and canal companies, grain elevators, warehouses, mines,
insurance and banking. Is milk or coal a property “clothed
with a public interest?” "
VI
Labor recognizes its subjection to the law. Before the
Senate committee on interstate commerce, Mr. Gompers
testified: *
SENATOR CUMMINs. I take it you do not object to responsibility
under the law for an unlawful act in Some form or other?
MR. GoMPERS. Certainly not.
SENATOR CUMMINs. That is, every man, whether alone or whether
in association with others, if he commits a wrong, ought to respond
for that act either to the public in a criminal prosecution or to the
person who was injured by his unlawful act?
MR. GoMPERs. Unquestionably.
SENATOR CUMMINs. That is fundamental, and that leads me to
a little further inquiry of you upon a subject a little more funda-
mental even than the antitrust law. You are familiar with what is
known as the Debs case?
1 See the Donnelly Act, Sec, 340, General Business Law, New York. “Every
contract, agreement, arrangement or combination whereby a monopoly in the
manufacture, production or sale in this state of any article or commodity of
common use is or may be created, established or maintained, or whereby com-
petition in this state in the supply or price of any such article or commodity
is or may be restrained or prevented, or whereby for the purpose of creating,
establishing or maintaining a monopoly within this state of the manufacture,
production or sale of any such article or commodity, the free pursuit in this
state of any lawful business, trade or occupation is or may be restricted or
prevented, is hereby declared to be against public policy, illegal and void.”
The New York Times reports that on November 5th the Attorney-General
authorized the following statement of his department's activities: “The De-
partment of Justice is investigating the recent abnormal and suspicious in-
creases in the prices of various necessaries of life, especially coal. Wherever
any such increase is found to have been due to conspiracy or other unlawful
action the department will invoke against the offenders the severest penalties
which the law prescribes.” See also article headed, Suspect Conspiracy in
High Coal Prices, p. 20 of same issue of Times, November 6, 1916.
* Report of Hearings before the Committee on Interstate Commerce, U. S.
Senate. Sixty-second Congress, 1911-12. Pursuant to Senate Resolution 98.
Pp. 1727-1765. Also in Orth’s Readings on the Relation of Government to
Property and Industry, pp. 610-611. * g
31.
MR. GoMPERS. Fairly well, sir.
SENATOR CUMMINs. There the complaint was, as I remember,
that certain persons had forcibly, physically restrained the instru-
mentalities of commerce; that is, prevented commerce from being
carried on. Now, entirely apart from the law through which it
would be worked out, do you think that there ought to be a prohibi-
tion against acts of that sort?
MR. GOMPERS. There are, without the Sherman anti-trust law.
SENATOR CUMMINs. Of course you think there ought to be pro-
hibitions against such acts? f
MR. GOMPERS. Unquestionably; any acts which in themselves
are unlawful.
Capital recognizes the clear right of labor to organize. Mr.
Emery, speaking for the National Association of Manufac-
turers and approximately three hundred organizations of em-
ployers, said at the same hearing : *
I, and all I represent, are firm believers in the right of men to organ-
ize for the protection of their hours, labor, and working conditions.
Many thousands of men employed by my clients are members of labor
organizations of all kinds, and we do not and never have questioned
their right to form unions and by legitimate action enforce their de-
mands. We ask for no other restrictions for them than the same law
places on all other citizens.
In theory, both sides agree. Shall they be permitted to
escape from this harmony of thought in their practice?
In those industries where the costliness to the worker of
the strike and lockout has been graven upon the memories of
the workers by hard and bitter suffering, there is clear appre-
ciation of the value of stable and uniform administration of the
law of the industry.
The most recent report of the government (U. S. Department
of Labor, Bureau of Labor Statistics, Bulletin 198) reviewing
Collective Agreements in the Men's Clothing Industry, con-
tains the following:
* Report of Hearings before the Committee on Interstate Commerce, U. S.
Senate. Sixty-second Congress, 1911-12. Pursuant to Senate Resolution 98.
Pp. 2072-2Io4. Also in Orth's Readings on the Relation of Government to:
Property and Industry, p. 618.
32
Under these agreements a due process of law has been substituted
for the arbitrary and irresponsible rule of the foreman in the adjust-
ment of all differences, and with the institution of this due process
of law there has developed among the workers a feeling of security
under the law, in place of the feeling, formerly prevalent among
them, of uncertainty, of fear, and of absolute helplessness."
1 One of the union representatives writes:
“To fully appreciate, and to be able to explain in what ways the people
have benefited by the agreement, I must refer back to the time when no
agreement was in existence.
“I used to work in shop No. 3, and I must say that the foreman of said
shop is a kind person. My work during the seven years was very seldom
criticized, if at all, but I was considered a ‘Smart man,’ consequently kept re-
sponsible for some little trouble that happened in the sections near me. Once
a section of men picked enough courage to stand up and ask the foreman for
an increase; for such action their leader, who was revealed by one of the men,
was immediately discharged and even denied the privilege to come for his
hat and coat in the shop, which were brought to him outside. He was such
a very nice, quiet, sociable fellow that it broke my heart to see him go in such
a fashion, but the only thing I could do was to feel sorry for him. A few
hours later I was called by the foreman and accused of being the instigator
of those people; when I protested that I did not know anything about it, and
that I could not have been the instigator as I couldn’t speak their language
(Lithuanian), I was told that I was a “smart man,’ that I knew everything,
and that at least I should have notified him. Finally, I was asked to resign
my position; I was a plain workingman and I expected the same treatment
that the other fellow had received a few hours before. While I was getting
ready very reluctantly to go home, reluctantly, not for the job, though I
needed it, but because I thought my staying in the shop was necessary, the
foreman had a conversation with the informer and had been told that I was
not mixed up in the matter at all, so the foreman changed his mind and asked
me to remain, told me that I was a good man and that he believed every word
I had said.
“To-day when a section is dissatisfied a complaint is filed with the shop
chairman, who tries first to adjust it with the foreman or manager. If he can
not succeed, he reports to the deputies of the workers and a joint investigation
is made with the deputy of the company. In the event the deputies fail to
reach a settlement, the case is reported to the trade board, and finally, if
necessary to the board of arbitration. The chairmen of the shops may now
speak for any of the workers without being told to mind their own business.
The fear of being wrongfully discharged has disappeared, because of the
right to demand redress. Wages or prices can not be reduced; if attempted
to, the price committee, a creation of the trade board, will be there and inves-
tigate the case.”
Compare this with the conditions in the New York cloak industry, after
33
We may well follow today the example of Cavour, who, in
the time of Italy's greatest crisis,
rises and compresses the needs of Piedmont and Italy into a single
sentence. Casting aside all petty demands for changes in detail, he
insists that the king be asked “to transfer the discussion from the
perilous arena of irregular commotions to the arena of legal, pacific,
Solemn deliberation.” "
VII
The desideratum is the least possible regulation by the gov-
ernment and the utmost freedom to the parties to come together.
We should encourage the interested parties to negotiate and
agree, subject only to the right of the third party—the public
—to intervene at such points as the public interest may be en-
dangered. Collective bargaining under the sanction of the
law furnishes this free opportunity for negotiation. Joined
with clear right of review in case of injury to the public, and
opportunity for appeal in case of deadlock, it opens up a hope-
ful avenue of escape from our present chaos.”
Employers generally are recognizing that the human rela-
tions between them and the workers in their plants are a vital
factor in the efficiency of the plant. A recent advertisement
says: “The quality of every manufactured product depends
upon the workmanship. Satisfied labor insures high quality
the “protocol’” system of arbitration was recently abrogated. The workers
now complain:
“This agreement may be a model as far as the manufacturers are concerned,
because there are practically no provisions for enforcement of same, but the
workers having promises on paper but knowing full well that the right to hire
and discharge is practically absolute under the new agreement, that equal
division of work is not even mentioned therein, and that the manufacturer if
he wants to discriminate against an active union man could do so with im-
munity, cannot do anything else but express their dissatisfaction with it.
“We expect to take up this subject from time to time, but let us hope that
this model agreement will be of short duration unless properly amended so as
to make it a real contract instead of a one-sided affair.” Editorial Note,
The Ladies’ Garment Cutter, October 28, 1916.
1 White, Seven Great Statesmen, Cavour, p. 350.
* See chapter XXI, Law and Order in Industry, by the author.
34
in the output of any plant.” And this concern is pleased to
advertise the fact that four hundred satisfied workers say:
As employes, we feel that the . . . . . . . . Company has en-
deavored to make our working conditions and wages as satisfactory
as their business has warranted. We acknowledge and appreciate the
eight-hour day that has been voluntarily granted, and we will do our
best to increase the quantity and quality of the factory output.”
Another concern advertises:
Satisfied labor is the one big key to industrial success. The .
Terminal conduces to success because the conditions under which the
operatives in its many prominent factories perform their tasks make
for perfect sanitation, incomparable light, air, health and safety, and
because the location is accessible, at a five-cent fare, from all parts
of the city. Modern housing facilities are keeping pace with the in-
dustrial development.”
Obviously, there is no condition of satisfied labor if the de-
sire to organize is thwarted by the employer. Obviously,
there is no condition of satisfied labor if the employer's aim
for efficiency and discipline is thwarted by syndicalized work-
ers. There are two blades to the shears, as Dr. Adler observed.
The way out is for each to recognize that his right is right only
in relation to the other's right.
Each side must yield a bit in its antagonism to the other's
position. We cannot permit society to remain in a condition
of armed industrial truce. Business efficiency and industrial
justice are coadjutors in the task of developing a new in-
dustrial law.
VIII
There are, of course, certain fundamental principles appli-
cable to all industrial controversy. Without attempting to
state even the main points, it may help the argument if I
roughly formulate a few :
* Literary Digest, Nov. 4, 1916.
* New York Times, Nov. 7, 1916.
35
I. The principle of the recognition of the human rights of
workers, including
(a) The right to organize;
(b) The right to living conditions;
(c) The right to be respected in one's personality.
II. The principle that, in the present order of society, the
employer must maintain discipline and efficiency in the plant.
I and II were excellently stated by the Mayor's council of
conciliation in the cloak industry:
That the principle of industrial efficiency and that of respect for the
essential human rights of the workers should always be applied
jointly, priority being assigned to neither. Industrial efficiency may
not be sacrificed to the interests of the workers, for how can it be to
their interest to destroy the business on which they depend for a
living, nor may efficiency be declared paramount to the human rights
of the workers; for how in the long run can the industrial efficiency
of a country be maintained if the human values of its workers are
diminished or destroyed? The delicate adjustment required to recon-
cile the two principles named must be made. Peace and progress
depend upon complete loyalty in the effort to reconcile them.”
III. The principle that coercion of neutrals or third parties
(destruction of the milk supply, interrupting the public service
—the mails, the telegraph, the trains) must not be permitted.
In the application of these principles, we have seen that,
in the case of railroads, telegraphs, electric light, steamboats,
etc., the power of the states to regulate public utilities and
the power of Congress to regulate commerce furnish a legal
basis for the establishment of institutions or tribunals or the
grant of power to existing bodies. The transmission of the
public mails justifies federal intervention.” On the other hand,
we must, for the present at all events, formulate our legislative
program in the matter of so-called “private industries" upon
the legal principle of conserving the public health. How far
this domain will extend remains still to be developed from
1 Law and Order in Industry, by the author, p. 281.
2 See In re Debs, 158 U. S. 564.
36
the interpretations we shall receive from the U. S. Supreme
Court in such cases as the national child-labor law.
With this in mind, the proposal which I submitted to the
Federal Industrial Relations Commission in 1914 and which
is discussed in another place " is here added as an appendix, to
furnish a basis for further criticism and discussion.
IX
In general, the proposal is a League to Enforce Industrial
Peace made up of all the elements of society—the consumer,
the neutral, the worker and the employer (i. e. the state itself),
founded upon the following propositions:
I. The clear recognition of the moral and legal right of men
to organize.
II. The establishment of tribunals sanctioned by law, whose
membership shall be representative of all three parties (em-
ployees, employers and the public).
III. The creation of fact-gathering machinery to enable
such tribunals to determine what is in any given case a “fair
and reasonable wage '' and what are “fair and reasonable
working conditions.”
IV. The clear recognition of the necessity for efficiency and
discipline in all industrial organizations.
V. Opportunity to every worker to secure just redress from
arbitrary or oppressive exercise of the employer's functions.
VI. Opportunity to every employer to secure just redress
from arbitrary or oppressive exercise of power by the men.
VII. The right to appear by his chosen organization or
spokesman before all sanctioned tribunals and in all dealings
between employers and employees.
VIII. The registration of all collective agreements.
IX. A national council, without whose sanction there shall
be no concerted cessation of work or closing-down of plants,
to which any interested party may apply for relief, as it may
in public service matters to the interstate commerce commission
1 See chapter XXI, A Federal Industrial Council, Law and Order in In-
dustry, by the author.
37
or the public service commissions, or, in trade matters, to the
federal trade commission.
X. Such national council to be constituted of members elected
from groups of employers and groups of workers and repre-
sentatives of the public.
XI. In public utilities, clear recognition of the function of
the state, as part of the regulation of the service and the rates,
to determine what is a reasonable wage and what are reason-
able working conditions.
XII. Clear acceptance of the proposition that, adequate mo-
chinery being established for the redress of all just grievances,
the right to coerce by concerted stoppage of work in all ser-
vice affecting the public health, safety or convenience shall
be made as obsolete as the duel or as illegal as lynching.
(This principle to be applied if and when 'such machinery is
established.)
X
The basis of the great industrial compromise is here. The
trade-unionist must yield in his opposition to governmental
regulation of his organization; the employer must yield in his
opposition to the organization of trade unions; the public must
yield in its indifference to the conditions under which human
work is done; the business man must yield in his opposition to
“social uplift " in industry; and the social reformer must yield
in his indifference to efficiency and discipline in modern pro-
duction. Upon such a compromise can be founded a program
of preparedness for peace. Without it, we shall have neither
industrial efficiency nor industrial justice. Without legal
sanctions, there can be no real progress. But the legal sanc-
tions must be of a kind to which a modern democratic society
founded upon a philosophy of reason—not of force—is ready
and willing to give whole-hearted and devoted support. The
lawyer's duty is big—the educator's duty is bigger—more im-
mediate and more pressing.
38
APPENDIX
SKELETON OUTLINE OF PROVISIONS OF A BILL
I. Create a “National Industrial Board ” with powers analogous
to those of the English Industrial Council under the English “Trade
Disputes Act.”
II. Equal representation to organized labor, organized employers,
and the public, appointed by the President for long terms.
III. Adequate Salary paid to the Chairman (to be a man of the
type of Sir George Askwith).
IV. In addition to the powers included in the English “Trade
Disputes Act,” give power:
(a) To consider and investigate all matters concerning sanitation
and safety.
(b) To revise trade agreements upon the appeal of the parties.
(c) To hear appeals from boards of conciliation or arbitration
established under trade agreements.
(d) To gather statistics upon all matters involving wage increase.
V. All trade agreements to be validated by registration with the
“National Industrial Board.”
VI. Whenever it shall appear that the agreement covers a sub-
stantial portion of the industry, the parties to the agreement may
apply for its extension to the entire industry. Upon proper hearings,
to those not yet affected, the Industrial Board may make an order
extending the agreement to cover the entire industry.
VII. Trade agreements to be authorized which may provide for
the preferential employment of members of the trades-union party to
the agreement, and for wage-scale boards, boards of conciliation and
arbitration, grievance boards, boards of sanitary control, boards of
apprentices, etc.
VIII. The National Industrial Board, before registering any trade
agreement, to make careful investigation of the surrounding facts,
and if it finds that the agreement is made in good faith, and is for
the best interests of the working people and the employers in the in-
dustry, it may certify to the fact, and its certificate shall raise an
irrebuttable presumption in any court of law or equity that such
agreement was in fact entered into in good faith, and not in restraint
of trade.
IX. Where agreements create methods of arbitration by boards of
arbitration, conciliation, grievances, or the like, the decision in writ-
ing of such board may be filed in the office of the clerk of any fed-
39
eral court, and a motion may be made to confirm the report on notice
to the party against whom the decision has been rendered, and when
such decision shall be confirmed, a copy of the decree may be en-
tered in the clerk’s Office.
X. An appeal may be taken from any award by a board of arbi-
tration to the National Industrial Board.
XI. Where any agreement voluntarily entered into provides
methods of arbitration or conciliation, it shall be lawful for either
party to terminate the same, upon three months' notice, but if not
terminated, it shall not be lawful for either party to engage in any
strike, walk-out, or lock-out before the controversy is submitted to
such tribunal. -
4O
tºº.
THE ACADEMY OF POLITICAL SCIENCE
IN THE CITY OF NEW YORK
BOARD OF TRUSTEES
President
SAMUEL MCCUNE LINDSAY
Vice-Presidents
ALBERT SHAw THOMAS W. LAMONT
Secretary Treasurer
HENRY RAYMOND MUSSEY GEORGE A. PLIMPTON
Directors
IRVING T. BUSH WILLIAM R. SHEPHERD
A. BARTON HEPBURN MUNROE SMITH
WILLIAM L. RANSOM HENRY L. STIMSON
EDWIN R. A. SELIGMAN FRANK A. VANDERLIP
AEa'itor of the Political Science Quarterly
THOMAS REED POWELL
The Academy of Political Science, founded in 1880, is com-
posed of men and women interested in political, economic and
social questions. The annual dues are $5. Members re-
ceive without further payment the current issues of the Political
Science Quarterly and the Proceedings, and are entitled to admis-
sion to all meetings, lectures and receptions under the auspices
of the Academy.
Communications regarding the Academy should be
addressed to the Secretary of the Academy of Political
Science, Kent Hall, Columbia University, or to Miss Emma
S. Lake, Assistant to the President of the Academy, Kent Hall,
Columbia University.
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