Popular Law-making. Frederic Jesup Stimson
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of the definition. Or where they combine to get a lawful end by unlawful means, as, for instance, when laborers combine to get their employer to raise their wages by the process of knocking on the head all men that come to take their places, that is gaining a lawful end by unlawful means, by intimidation—and is a conspiracy. But now the whole doctrine in discussion comes in: If you have a combination to bring about by lawful means the injury of a third person in his lawful rights—not amounting to crime—is that an unlawful conspiracy? Yes—for it is a "malicious enterprise." So is our law, and the common law of England, yes. And you can easily see the common-sense of it. The danger to any individual is so tremendous if he is to be conspired against by thousands, hundreds of thousands, not by one neighbor, but by all the people of the town, that it early got established as a principle of the common law, and of these early English statutes, that, although one man alone might do an act which, otherwise lawful, was to the injury of a third person, and be neither restrained nor punished for it, he could not combine with others for that purpose by the very same acts. For instance, I don't like the butcher with whom I have been doing business; I take away my trade. That, of course, I have a perfect right to do. But going a step farther, I tell my friends I don't like Smith and don't want to trade with him—probably I have a right to do that; but when I get every citizen of that town together at a meeting and say: "Let us all agree to ruin Smith, we will none of us trade with him"—Smith is bound to be ruined. The common law early recognized this importance of the principle of combination, and therefore it was part of the English common law and is still, barring one recent statute, that a combination to injure a person, although by an act which if done by one individual would be lawful, is nevertheless an unlawful combination; that is, a conspiracy under the law; for all "conspiracies" are unlawful, under the law; the meaning of the word conspiracy in the law is, not an innocent combination, but a guilty one, and anything which is a conspiracy at law can be punished criminally, or will give rise to civil suits for damages by the parties injured, or usually entitle one to the protection of an injunction. A conspiracy, therefore, is not only a guilty combination, of two or more persons, for an unlawful end by any means, or for a lawful end by unlawful means, but also one for an immoral end, a malicious end, as, let us say, the ruin of a third person, or the injury of the public. All the dispute about the law of conspiracy and the statutes and what laborers can do and what employers can do to-day really hinges about that last clause. The labor leaders, the radicals, want to say that nothing shall be a conspiracy where the end is not unlawful and where the acts done are such as, if done by an individual, would not be wrong. In other words, they want statutes to provide that nothing is a conspiracy where the acts done are in themselves lawful if done by one individual. But this English conspiracy law was of the most immense sociological value, in that it did recognize the tremendous power of combination. It said, although you don't have to trade with Smith alone, yet a combination of a great many individuals for the purpose of ruining Smith, by all simultaneously refusing to trade with him, is such a tremendous injury to Smith that the law will take cognizance of it and hold that kind of a combination to be unlawful.
This definition should be further extended, perhaps, to remind you that the courts hold that there are certain kinds of combinations, contemplating ends which will necessarily result in the use of unlawful means; the most familiar example is picketing. The courts mostly hold that although in theory a labor union can march up and down the highway and peacefully advise non-union men or other laborers not to take their jobs, in practice such action usually, if not necessarily, goes to the point of intimidation; and intimidation is nearly always made unlawful by statute. Now I should only add that it is very important to remember—and even the courts do not always remember it—that the thing being punished as a conspiracy is not the end, but the combining; the conspiracy itself is the criminal act. Suppose in Pennsylvania one thousand men meet and say: "John Smith has taken a job and is a scab, and we will go around and maul him to-night," and they do, or they don't; if they are tried, the fact whether they did maul him or not has nothing to do with the matter of the conspiracy. They might, of course, be tried for assault and battery, or for an attempt to commit murder; but if they are being tried for the conspiracy the criminal act is the combining and meeting, not what they do afterward. Therefore it is of no importance whatever what the result of the matter is. The thing that is criminal is the combining; and this leads to a very curious consequence: All conspiracies are criminal; but the object aimed at may be very slightly so. So that it is perfectly possible to have a conspiracy which shall result to its members in five or ten years in the state-prison, whereas the object itself, the act aimed at, may have been comparatively slight, a mere misdemeanor. Take the case of mere intimidation without assault or battery; one man goes to another and says: "If you take that work I shall smash your head," that is intimidation. Thirty of our States have made that unlawful, but it is only a misdemeanor. But if one thousand men get together and say: "We will go around to tell him we will smash his head," that is conspiracy; and conspiracy may subject them to penalty of years in prison. It has been found in the experience of the English people to be such a dangerous power, this power of combination, that to use it for an unlawful or wrongful end may be more of an offence than the end itself.
A combination to injure a man's trade is, therefore, an unlawful conspiracy; well shown in a recent Ohio case where a combination of several persons to draw their money out of a bank simultaneously for the purpose of making it fail, was held criminal. It gives a claim for damages in a civil suit and may be enjoined against. But is it necessarily criminal? It is possible that the offence to the public is so slight that the criminal courts would hardly take cognizance of it in minor cases where there is not some statute expressly providing for a criminal remedy. The Sherman Act, our Anti-trust Act, does so where even two persons conspire together to restrain interstate commerce. It is a crime at common law, however slight, for even two to combine to injure any person's trade. But, independent of statutes, suppose only two persons agree not to buy of a certain butcher in Cambridge: in theory, he might have a civil remedy; but it may be doubted that it would amount to a criminal offence. Lex non curat de minimis. So, it is an offence under most State anti-trust laws, as it was at the common law, to fix the price of an article—that is restraint of trade—or to limit the output. Two grocers going to the city in the morning train agree that they will charge seven dollars a barrel for flour during the ensuing week; two icemen, to harvest only a thousand tons of ice. The contract between them could not be enforced; it is undoubtedly unlawful; but it would hardly be a criminal offence at the common law. There is, at least at the common law, some middle ground between those contracts which are merely unenforceable, and those which subject the co-makers to a criminal liability; although under the cast-iron wording of a statute it may be that no such distinction can be made.
Independent of combination, there is probably no legal wrong in merely wishing ill to a man, withdrawing one's custom from him, competing with him, or even, possibly, in injuring his trade. There is an ancient case where the captain of an English ship engaged in a certain trade, to wit, the slave trade, arrived off a beach on the coast of Africa and was collecting his living cargo, when a second ship, arriving too late to get a load itself, fired a cannon over the heads of the negroes, and they, with the chief who was selling them, fled in terror to the forest. The captain of the first ship went back to London and brought suit against the captain of the second ship for injuring his trade and was allowed to recover damages; but it may be doubted if that is good law; although in 1909 a Minnesota court decided that a barber could sue an enemy if he maintained an opposition barbershop solely for the purpose of injuring his business; and a few years ago in Louisiana a street railway foreman was held liable in damages for instructing his men not to frequent the plaintiff's store.[1] I say to you: "Do not trade with Smith, he is not a good person to deal with," or, "Do not take employment with him, he will treat you cruelly"; and in either case, unless I can be convicted of slander, he has no remedy against me if I am acting alone.
[Footnote 1: Tarleton v. McGawley, Peak, N.P.C. 270; Tuttle v. Buck, 110 N.W. 946; Graham v. St. Charles St. Ry. Co., 47 La. Ann. 214.]
Now, this great law of conspiracy applies equally and always to combinations of capital or of employers, to trusts, contracts in restraint of trade and blacklists, as well as to unlawful labor combinations, unlawful union rules, and boycotts. The statutes directed against both originated about the same time and have run historically on all-fours together. The old offences