adopted by certain States of our Union as applicable to their conditions when born into Statehood.1

But the first enunciation of the broad rule that an agreement is an indictable conspiracy at common law, although only to do that which the parties thereto might, as individuals, lawfully do, is attributed to the case of The Tubwomen v. The Brewers of London. Just who the Tubwomen were we are not told, or why they had trouble with the Brewers, or what that trouble was. Eo nomine they enter the law reports on Monday, November 6th, 1721, in company with the King and the Journeymen Taylors of Cambridge, whose case notwithstanding severe criticism is still cited as authority. These tailors were found guilty of conspiring amongst themselves to raise their wages and it was urged in arrest of judgment, among other errors, that no crime appeared upon the face of the indictment, which only charged them with conspiracy and refusal to work at so much per diem, whereas they were not obliged to work at all by the day, but only by the year, and that the indictment should conclude contra formam statuti, since it was by statutes that journeymen tailors were prohibited to enter into any contract or agreement for advancing their wages and the offence made criminal; but the Court held that although the indictment charged refusal to work except for more than statutory wages, yet it was not for refusing to work, but for conspiring, that they were indicted, “and a conspiracy of any kind is illegal

State v. Buchanan (1821) 5 Har. & J. 317 and the cases cited; Trial of the Boot and Shoemakers of Philadelphia, pamphlet (1806); Trial of the Journeymen Cordwainers of New York, pamphlet (1810), Yates' Select Cases; less fully as People v. Melvin (1810) 2 Wheeler's Crim. Cases 262; Trial of Twenty-four Journeymen Tailors, Phila. (1827); Commonwealth ex rel. Chew v. Carlisle, Hall (1822) Journ. Juris, 225; s. c. Brightley's N. P. 36; People v. Fisher (1835) 14 Wend. 9; Commonwealth v. Hunt (1842) 45 Mass. 111 reversing Thacher's Crim. Cases 609; State v. Norton (1850) 23 N. J. L. 33; Master Stevedores v. Walsh (1867) 2 Daly I; State v. Stewart (1887) 59 Vt. 273; National Protective Ass'n v. Cummings (1902) 170 N. Y. 315; (contra) and State v. Burnham and other cases (supra). There is no conspiracy at common law in U. S. courts but Federal judges go to common law to ascertain in actions for conspiracy under the statute the meaning of the term, U. S. v. Martin (1870) 4 Cliff. 156; Pettibone v. U. S. (1892) 148 U. S. 197 at 203.

2 (1721) 8 Mod. II.

3 Matter of Davies (1901) 168 N. Y. 89 at 101; Quinn v. Leathem [1901] A. C. 495.

4 5 Eliz. Ch. 4. 57 Geo. I Ch. 13.

62 & 3 Edw. VI ch. 15.

although the matter about which they conspired might have been lawful for them or for any of them to do if they had not conspired to do it, as appears in the case of the Tubwomen v. The Brewers of London (a) ",1 and also that "the indictment need not conclude contra formam statuti because it is for a conspiracy which is an offence at common law." The omission to cite any report as sponsor for the Tubwomen on their first appearance, has given rise to grave suspicions and made them the Mrs. Harrisses of the law reports, whose existence some have denied, while others identify their case, and probably correctly, with the King v. Starling, or Sterling, and other brewers, which is said to have brought into the law the new principle, that it is criminal for A to combine with others to do that which acting alone he may lawfully do. From the rule attributed, with the sweeping generality of the indicative mood, to the Tubwomen's Case innumerable absurdities may be deduced by the most witless and have been by the witty; and of late the principle involved has been as broadly denied: yet its basic idea, stated in the subjunctive form, still influences judicial decision; being, after all, a phrasing of the Horatian wisdom sit modus in rebus. A thousand things innocent in detail may be though they are not always necessarily soharmful in combination. A grain of powder, to use the illustration of Erle, J., and Lord Brampton, explodes harmlessly where the explosion of a pound works havoc. A drop of water following the Mississippi's channel is beneficent, infinitesimally, perhaps, by the very fact of its combination with others; but the multitudinous drops combining to force their way out of the channel, break down levees and monopolize the dry land, illustrate the potentialities of evil in the simultaneous exertion of forces that, operating in detail or reasonable combination, work for good. But while the doctrine attributed to the case of the Tubwomen was-as, perhaps, they were-- unduly broad, we may well ask whether it was more so than the converse rule expressed with equal latitude in some judicial opinions of to

1 Our italics. The case is quoted from the 2d edition of Modern by Mr. Leach (1795) who says that he "has done his best endeavors to supply the defects of the former wretched edition" published forty years before. "This case was twice argued and here both arguments are blended together." No citation follows "(a)" in the foot-note of the Tailor's case.

day that "workingmen," i. e., manual workers and employees, may not only lawfully abstain or desist from work unsatisfactory to them by reason of its nature or compensation, but may go further and not only by indirection but even by direct means force employers to discharge servants because the latter have become distasteful to organized bodies of laborers either as "scabs" or, perhaps, only as members of rival organizations.1 It may, therefore, be worth while to examine some cases wherein the rule of the Tubwomen has been considered.

Grose, J., apparently following The Taylors of Cambridge, said in Mawbey's Case2 wherein magistrates were charged with conspiring to pervert the course of justice by producing false certificates: "In many cases an agreement to do a certain thing has been considered as a subject of indictment for a conspiracy, though the same act if done separately by each individual without any agreement among themselves would not have been illegal. As in the case of journeymen conspiring to raise their wages, each may insist on raising his wages if he can; but if several meet for the same purpose, it is illegal and the parties may be indicted for conspiracy."s In 1806 divers boot and shoe makers were indicted and tried in the Mayor's Court of Philadelphia for conspiring to do no future work except for higher prices; to prevent by threats, menaces and inter. ferences other artificers from working at prices less than those fixed by the conspirators; to unite in a club with unlawful, arbitrary by-laws for the government of them

1 See Special Term Judgments in Beattie v. Callanan vacating a temporary injunction restraining defendants from maliciously, by threats, causing persons to break contracts with plaintiff because he had affronted a "walking delegate" [rev'd (1901) 67 App. Div. 14; 73 N. Y. Supp. 518] and dismissing the complaint at trial on its merits upon the supposed authority of Natl. Protection Assn. v. Cummings, supra [also rev'd (1903) 81 N. Y. Supp. 413].

2 (1796) 6 T. R. 619.

3 Daley, F. J., in Master Stevedores v. Walsh, supra, said that this statement is only by way of illustration, and denied that any reported case so held, the like expression by Recorder Levy in the Philadelphia Boot-makers Case being obiter; and Erle, J., in his treatise on the Law Relating to Trades-Unions, says that this dictum of Grose was not pertinent to the adjudication or supported by examples, and if true, can be so only where simultaneity is the essence of the criminality of the act: cf. Hilton vs. Eckersley (1856) 6 E. & B. 47 at 53 & 69.

4 Trial of the Boot and Shoemakers of Phila., supra.

selves and other artificers, and to work for no master who should employ anyone working for less than prescribed wages, or breaking any of said by-laws; all this to the prejudice and oppression of masters and of other journeymen and against the peace of the commonwealth. Several witnesses were called to support the bill, of whom the principal was Job Harrison, who, on arriving in this country in 1794, had been notified that unless he joined the Journeymen Cordwainers he would be "scabbed,”—a term explained to him as meaning that no other man would sit on the seat where he worked, or board or lodge in the same house, or work for the same employers with him if he incurred that ban. Having a large family, he joined the organization. Being a skillful workman his employer promised him extra pay if he could make light dress shoes after the London fashion. He succeeded, obtained his own price, and was contentedly supporting his family when the Cordwainers, in order to increase the pay of boot makers, ordered a "turn out." Job protested that he had nothing to do with boots, received good pay for making shoes, and with a sick wife and young family "was not able to stand it." But, said he, "All the remonstrances I could make were of no use, I must turn out; unless my employer would pay their price for making boots I must refuse to make shoes. At that time I was from hand to mouth and in debt owing to the sickness of my family, and market work was only from 3s. to 3s. 6d. a pair (Job was getting 9s. a pair for his better work). 1 concluded at the time I would turn a scab unknown to them, and I would continue my work and not let them know it. I did not desire more wages than I got; more could not be looked for nor could not be given." So he actually became a member of the "tramping committee," whose business was "to watch the Jers that they did not scab it." It has been well said that liars are begotten of tyranny on fear; and Job striving to support his family by work at satisfactory wages lied, but in vain. Unable to deceive a neighbor, Swayme, he said to him, "Swayme, you know my circumstances; my family must perish or go to the bettering house unless I continue my work." And Swayme-answering that he knew the case was desperate, "but a man had better make

any sacrifice than turn a scab at that time,"--reported his friend. Thereupon the unpaid tramping committee on which Job had disingenuously served was cut down to one salaried man, forerunner of the "delegate" and "business agent," while Job turning at bay worked openly for his employer, who stood by him with splendid loyalty, or obstinacy, paying him full wages and holding out for many months against the strikers at what was the then great loss of $4,000 in a year. There was evidence in the case of the threats and violence always unfortunately coincident with attempts by one set of men to keep others from work. But the main issue was the criminality of the conspiracy to raise wages. To this point Mr. Hopkinson for the prosecution, admitting every man's right to work for such wages as suited him and to refuse to work upon unsatisfactory terms, cited Blackstone,1 that every confederacy to do acts prejudicial to others is indictable, as to raise wages, etc., Hawkins, 2 "when divers persons confederate together in order to prejudice a third person it is indictable as highly criminal at common law ** journeyman confederating and refusing to work unless at increased prices is indictable * a conspiracy to do an unlawful act though nothing be done or to maintain another in any matter whether it be true or false is indictable;" and also the Taylors of Cambridge and the Tubwomen. The defence answered that a principle so absolutely contrary to the spirit of free institutions might " be adapted to the meridian of London, Paris, Madrid or Constantinople, but can never suit the free State of Pennsylvania3, which had not adopted it from the common law, and resorted to the reductio ad absurdum, always invoked against the Tubwomen. Franklin argued that under its doctrine literary and charitable societies would be criminal combinations, while Rodney, with him, declared in lighter vein that "a country dance would be criminal, a cotillion unlawful, even a minuet conspiracy, and nothing but a hornpipe or a solo could be stepped with impunity :" and stoutly denied the

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*

1 Vol. IV., page 136, Christian's edition.

2 Hawkins P. C. Ch., 72, Sec. 2, note; the notes are those of Mr. Leach, also editor of Modern Reports.

Cf. Gibson, J., in Com. v. Carlisle, supra.