THE MAINTENANCE OF THE OPEN SHOP
THE MAINTENANCE OF THE OPEN SHOP BY BRUCE WYMAN Of the Faculty of Law in Harvard University
Richard, the bedell of the said town, made this proclamation by their orders. And the THE greatest of conservative forces in bailiffs defend [i.e. deny] all of it, and organized society is the law as admin Richard likewise defends all of it, and that istered by the courts. Until the mass of men he never heard such proclamation made by have deliberately changed their theories of any one. It is considered that he do defend society and adopted new ones in their place, himself twelve handed, and do come on the law remains as it was. So it is as to the Saturday with his law." rights of the trades unions to use their great All through our books from the begin powers to force non-union men. out of the ning there are cases both civil and crimi same employment. To one who follows the nal upon conspiracy as a thing apart from diverse currents of opinion that appear upon individual right and wrong. Probably the the surface of present day discussion, it might leading case is Rex v. Journeymen Tailors seem that the doctrine of the open shop was of Cambridge, 8 Mod. 10. One Wise and in the greatest danger, if indeed the doctrine several other journeymen tailors were in of the closed shop was not already estab dicted for a conspiracy amongst them lished. One who fears thus forgets the law, selves to raise their wages and were found with which is the final decision. From guilty upon one point. On motion in arrest ancient times our law has been the protec of judgment the court held: "The indict tion of the freedom of the individual against ment, it is true, sets forth that the de the oppression of the combination. So it fendants refused to work under the wages remains to-day in the midst of alarms the which they demanded; but although these steadfast exponent of the desire of the great might be more than is directed by the statute majority of men for the maintenance of yet it is not for the refusing to work, but industrial liberty. for conspiring that they are indicted, and a conspiracy of any kind is illegal, although II the matter about which they conspired Our law against combinations goes back might have been lawful for them, or any of beyond legal memory. A learned editor them to do, if they had not conspired to of one of the Seiden Society's publications do it." (i Pleas of the Crown 125) has found a case Well down into the nineteenth century, for us as early as the year 1225 of an action if workmen acted in concert in any way for interference by conspiracy. The whole against their masters they were in danger report of this case of the Abbot of Lilleshall of being held conspirators both in England follows. "The Abbot of Lilleshall complains and America. But this law that mere com that the bailiffs of Shrewsberry do him bination was a conspiracy regardless of what many injuries against his liberty, and that was demanded by the employees of their they have caused proclamation to be made employers gradually became obsolete. Com in the town that none be so bold as to sell bination is now permitted for the further any merchandise to the abbot or his men, ance of certain ends by certain means; but upon pain of forfeiting ten shillings, so that it is not true to say that it is permitted for
