346
THE GREEN BAG
without legal excuse, it merely brings up for consideration the sufficiency of the rea sons here presented as justifying the con duct in question. If, on the other hand, it is used in its positive sense referring to vindictive conduct, it presents an issue of fact which is purely personal, depending on the actual motive of the individual, and which, in the case of a group of persons taking part in the same transaction, may be determined one way as to one person and another way as to another. We need not consider the vexed question whether such malice will render conduct unlawful which would otherwise be lawful, for, even if the question is answered in the affirmative, no general rule of law is arrived at, which deter mines whether a certain thing may be done or not. It is now submitted that a careful analysis of the subject discloses no element of illegal ity in the contract for a closed shop. As a result of cooperation among workingmen in the attempt to better their condition, they have developed an ability, which was lacking before, to cope with some measure of success with their employers, so that they are no longer forced to accept without ques tion such terms of employment as may be offered to them. As an incident of the movement toward cooperation thus in augurated bodies of workingmen acting together have been brought into competi tion with independent workers, and this has resulted at times to the disadvantage of the latter, although there is a compensating advantage when the employer prefers the independent worker. So long as the union men refrain from violence and misrepresen tation and rely on peaceful persuasion to advance their cause, no one's rights are vio lated. There is no intimidation or coercion in a legal sense. What is mistakenly called so is merely the pressure which their success produces by making it for the advantage of employers to deal with them and of other workers to unite with them. As their methods are lawful, their purpose and motive
cannot properly be impugned. What is called monopoly is only such monopoly as is necessarily involved in combination and it is too late to deny the right of combina tion among workingmen. Employers have the same right to resist and reject the de mands of such a combination as the combi nation has to make them, and they must rely on that right for their remedy. In a contest between labor and capital the ad vantage in general is on the side of the latter. As laborers must work in order to live, no permanent monopoly is possible. As a practical matter it is a significant circum stance that, in many of the leading cases on labor controversies, the contest has been not between union and non-union men but between rival unions.1 There is abundant reason for saying that, in the struggle between employer and work men (which may properly be designated as competition for want of a separate word to distinguish it from the struggle between workmen and workmen), the methods here described are not only lawful but are fair; the competition is fair competition. If, however, the contrary is claimed and it is said that it is not fair competition, the answer is that the common law does not permit any inquiry as to whether competition of a certain kind is fair or unfair. That is laid down in the Mogul Steamship Company case,* and the decision in that case furnishes a strong illustration of the proposition. Many economists of the present day favor the regulation of compe tition by forbidding what is called preda tory competition, meaning thereby such practices as underselling or selling below cost in certain localities or at certain times in order to drive out competitors. This is the remedy which they propose for the
1 See for example Allen v. Flood A. C. (1898') I Plant v. Woods, 176 Mass., 492. Nat. Protective Assn., of Steam Fitters v. Gumming 170 N. Y.
1 23 Q. B. D. 598, 615, 625, 626.
