liar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Further in indicating this conformity to a public opinion there is the recent utterance of Chief Justice Cullen of New York:

I fear that the many outrages of labor organizations, or of some of their members, have not only excited just indignation, but at times have frightened courts into plain legal inconsistencies, and into the enunciation of doctrines, which, if asserted in litigations arising under any other subject than labor legislation, would meet scant courtesy or consideration.

Judge Holmes, when sitting on the Massachusetts bench, spoke of "judicial reasonings" as seeming to him “often to be inadequate."

The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely if ever are capable of unanswerable proof. They require a special training to enable anyone even to form an intelligent opinion about them.

To bring this chapter to a close and also to come back to the point of starting, perhaps the whole matter of difficulty has been expressed best by Chief Justice Parker of New York. After stating the view already quoted in this chapter to the effect that the court is bound to consider favorably the opinions of legislatures, he refers to the courts in more general terms.

In the early history of this country eminent writers gave expression to the fear that the power of the courts to set aside the enactments of the representatives chosen to legislate

for the people would in the end prove a weak point in our governmental system, because of the difficulty of keeping the exercise of such great power within its legitimate bounds. So far in our judicial history it must be said that the courts have, in the main, been conservative in passing upon legislation attacked as unconstitutional; but occasionally, and especially when a case is one on the border line, it is quite possible that the judgment of the court that the legislation is unwise may operate to carry the decision to the wrong side of that border line. Certain it is that the courts have greatly extended their jurisdiction over many administrative acts that were originally supposed not to present cases for the court to pass upon, and in that way the courts have come to play a very important part in state and municipal administration.

Confronted with the varied expressions quoted in the preceding pages, one is justified in concluding that the courts are not sure of themselves and that there is lack of unanimity in their views. This must not be attributed to the inefficiency of the courts. The courts are feeling their way into new fields. The whirl and eddy of reform confuse judges as they confuse all of us. It is difficult to distinguish the real current that embodies the forward movement. Naturally the responsibility that goes with the heavy duty of deciding these weighty questions tends to conservatism. It is natural as it is right that courts should adopt for a motto: "It is better that a thing should be done rightly than that it should be done quickly." In an effort to refute the "criticism of the law's obsolete and archaic features" the critics are reminded that "the law in altering its wonted usage or in deviating from its fixed policies resembles time somewhat which, as Bacon says, 'innovateth greatly but slowly and by degrees scarce to be perceived.'"

1

1 Mahon, "The Law an Expansive Science," American Law Rev., vol. xli, p. 685, Sept.-Oct., 1907.

It is doubtless true that many judges, as well as other citizens, view the courts as the bulwark against extremes of radicalism, paternalism, or even socialism. Insofar as the courts serve this purpose they are of inestimable value. When judges, however, go so far as to insist on the necessity of a literal preservation of the ideas of the past unchanged, there immediately arises grave danger that the bulwark of defense may become an engine of obstruction. Much of the past is of value, but the present loudly demands changes in the direction of a greater degree of socialization and an acceptance of newer ideas of justice and equality. Yet a conserving force in the midst of these changes is necessary. Things social must be held together while they are progressing. The social unity so far as it has been attained must be preserved. Considering how difficult it is to strike a balance between preserving the good that has been achieved in the past and keeping the way open for greater good in the future, we must recognize the valuable service which our courts are performing. The responsibility which rests upon them is enormous, and it is only in the light of this responsibility that their decisions can fairly be judged. It is with full recognition of these considerations that the work of the following chapters is now entered upon.

CHAPTER III

EARLY CASES-1800-1850

LABOR trials are now so frequent that they often fail to receive the attention they deserve. It was not so in the beginning of our national history. During the half-century between 1800 and 1850 less than two score trials occurred of which record has been preserved. In variety too the contrast is striking. Every possible phase of difficulty comes finally to the courts in these days. The early cases dealt with but one problem, conspiracy.1

The circumstances of most of these early cases were similar. The workingmen had formed an association. They had refused to work except for the wages that they demanded or for any master who employed a non-member of their association. One case, however, presented novel features. The masters had joined together and undertaken to restore wages to the level prevailing before they had been advanced by a successful strike. Since the same arguments were advanced in this case as in the others, it was no exception so far as the application of the law was concerned. These cases were not decided in elaborate opinions written by the court. Most of them were jury trials and in its charge to the jury the court usually explained its interpretation of the law. In the arguments by the counsel for

1 A complete record of these cases is available in volumes iii and iv of A Documentary History of American Industrial Society. The Arthur H. Clark Company. In these volumes may be found either the record of or the reference to every known labor case that occurred prior to 1842.

each side elaborate statements of the conflicting claims were often given, however, and some of these have been preserved.

The organizations that were particularly aggressive in these early days were among boot and shoe workers, hat makers, spinners and weavers. Eight cases were against cordwainers, or boot and shoe makers, and were tried in various cities in Pennsylvania, New York, Maryland and Massachusetts.

In the very first of these cases, 1806, involving some cordwainers in Philadelphia-the first known trial of wage earners for conspiracy in this country-opposing views of counsel appear in the following statements. The prosecution contended

that no man is at liberty to combine, conspire, confederate, and unlawfully agree to regulate the whole body of workmen in the city. The defendants are not indicted for regulating their own individual wages, but for undertaking by a combination to regulate the price of the labor of others as well as their own.1

The defense asserted that the refusal of the workmen to labor for any master employing a journeyman who infringed the rules of the society to which they belonged was no offense.

There is no crime in my refusing to work with a man who is not of the same association with myself. Supposing the ground of my refusal to be ever so unreasonable or ridiculous, . . . to be in reality, mere caprice or whim, . . . still it is no crime. The motive for my refusal may be illiberal, but it furnishes no legal foundation for a prosecution: I cannot be indicted for it. Every man may choose his company, or re

1 Doc. Hist., vol. iii, p. 68.