remedies which are based upon similar "probable expectancies." It will probably be found in the end, I think, that the natural expectancy of employers in relation to the labor market, and the natural expectancies of merchants in respect to the merchandise market, must be recognized to the same extent by courts of law and courts of equity, and protected by substantially the same rules. It is freedom in the market, freedom in the purchase and sale of all things, including both goods and labor, that our modern law is endeavoring to insure to every dealer on either side of the market. The valuable

thing to merchant and to customer, to employer and to employee, manifestly, is freedom on both sides of the market. . . . It is, however, the right of the employer and employee to a free labor market that is the particular thing under consideration in this case. . . . Our law in its recent development undertakes to insure to him (an employer), not only that he may employ whom he pleases, but that all who wish to be employed by him may enter into and remain in such employment freely, without threats of harm, without unreasonable molestation and annoyance from the words, actions, or other conduct of any other persons acting in combination. What is the measure or test by which the conduct of a combination of persons must be judged in order to determine whether or not it is an unlawful interference with freedom of employment in the labor market, and as such injurious to an employer of labor in respect of his "probable expectancies," has not as yet been clearly defined. Perhaps no better definition could be suggested than that which may be framed by conveniently using that important legal fictitious person who has taken such a large part in the development of our law during the last 50 years, the reasonably prudent, reasonably courageous, and not unreasonably sensitive man. . . . A man may not be liable to an action for slander for calling a workman a "scab" in the street, but if 100 men combine to have this workman denounced as a "scab" in the street, or followed in the streets to and from his home, so as to attract public attention to him, and place him in an annoyingly conspicuous

position, such conduct-the result of such combination-is held to be an invasion of the "probable expectancy " of his employer or contemplated employer, an invasion of this employer's right to have labor flow freely to him. Without any regard to the rights and remedies which the molested workman may have, the injunction goes, at the suit of the employer, to protect his "probable expectancy,"-to secure freedom in the labor market to employ and to be employed, upon which the continuance of his entire industry may depend.

I think it is safe to say that, all through this development of strike law during the last decade, no principle becomes established which does not operate equally upon both employer and employee. The rights of both classes are absolutely equal in respect of all these "probable expectancies." An operator upon printing machines has a right to offer his labor freely to any of the printing shops in Jersey City. These shops may all combine to refuse to employ him on account of his race, or membership in a labor union, or for any other reason, or for no reason, precisely as 20 employees in one printing shop may combine, and arbitrarily refuse to be further employed unless the business is conducted in accordance with their views. But, in the case of the operative seeking employment, he has a right to have the action of the masters of the printing shops in reference to employing him left absolutely free. If, after obtaining or seeking to obtain employment in a shop, the master of that shop should be subjected to annoyances and molestation instigated by the proprietors of other printing shops, who combine to compel, by such molestation and annoyance, this one master printer, against his will and wish, to exclude the operative from employment, this operative, in my judgment, would have a right to an action at law for damages, and would have a right to an injunction if his case presented the other ordinary conditions upon which injunctions issue. But the common-law courts have not had time to speak distinctly on this subject as yet, and it is necessary to be cautious in dealing with a subject in which both courts of law and courts of equity as

yet are feeling their way. I think that the leading principle enforced in the restraining order in this case is not inconsistent with any authorities which control this court. This principle is that a combination of employers or a combination of employees, the object of which is to interfere with the freedom of the employer to employ, or of the employee to be employed (in either of which cases there is an interference with the enjoyment of a "probable expectancy," which the law recognizes as something in the nature of property), by means of such molestation or personal annoyance as would be liable to coerce the person upon whom it was inflicted, assuming that he is reasonably courageous and not unreasonably sensitive, to refrain from employing or being employed, is illegal, and founds an action for damages on the part of any person knowingly injured in respect of his "probable expectancy" by such interference, and also, when the other necessary conditions exist, affords the basis of an injunction from a court of equity.

Four years later in Booth v. Burgess, Vice Chancellor Stevenson refers to this opinion, saying: "My opinion in that case, though hurriedly formulated, was the result of a very careful examination and consideration of the authorities." The right to a free market is characterized as a primary legal right belonging to the complainant, and is one of three rights in the case. The three rights are (1) "the right in a contract," (2) "the right to contract,” (3) “the righ to a free market," that is "the right of every dealer, in the full enjoyment of his right to contract, to have all other possible dealers with him left free to deal or not as they may voluntarily elect. Thus recognition is accorded to the interest which one man has in the freedom of another.'"

The idea is referred to by Judge Hammond in the Willcutt case, already fully reviewed. That the opinion is influenced by the statement of Vice Chancellor Stevenson appears in the reference made to the rights of the plaintiff. Says Judge Hammond:

It is to be premised, that the right which the plaintiff seeks to have protected against the acts of the defendants arises from no contract or statute, but out of the nature of things. It is one of the large body of rights which have their foundation in the fitting necessities of civilized society. It is the common law right to a reasonably free labor market. Vice Chancellor Stevenson, in speaking of it, says it has been called a "probable expectancy " and describes it as "the right which every man has to earn his living or pursue his trade without undue interference."

What is to be the future of this idea, it is of course not possible to state. The references to it since its first appearance eight years ago have been very few, the ones just referred to being the leading ones. Yet it is of significance in its possibilities. Its importance will depend upon the particular direction that is given to its development in its practical applications.

CHAPTER XII

SPECIAL TOPICS

In addition to the foregoing general topics there are others that are of no small importance, though they come in for discussion in the opinions only incidentally.

I

INTIMIDATION

What constitutes intimidation is always a perplexing question for the court to answer. Much depends upon the point of view taken by the judge and much also upon his individuality. This latter difference is emphasized in the opinion in State v. Van Pelt.

To a timid, conservative judicial mind trained to regard even the slightest disturbance of such forces as portending danger to the peace of the state, "intimidation would doubtless include many acts that would not come within its meaning " to a different type of judicial mind believing that the safety and highest interest of the state are promoted by the freest possible play of mind and action in trade competition.

Some instances cited from various opinions will illustrate the different views. Justice Brewer in United States v. Kane said:

I have no doubt that some men, who are excessively bold, might have laughed at [the demonstration] and waited, believing that no personal violence would be used; but men are not all equally bold and courageous; the average man has a