594
THE GREEN BAG
substitute appears in a different order from section 3 of the original bill, and is intended, I have no doubt, to be a sub stantial modification of the original sec tion 3. No legal discussion of section 3 was ever presented to the committee. The original section was objected to on the ground that it very clearly exempted labor organizations from the operation of the Sherman anti-trust law, to all intents and purposes legalized an interstate boycott, and practically neutralized the effect of the decision in the Loewe v. Lawlor case, announced February 3, 1908, and known as the " Danbury hat case." The first provision in this section provides that nothing in the Sherman anti trust act should be enforced so as to interfere with a "strike for any purpose not unlawful at common law." Just exactly what the parties responsible for this legislation mean by this language I do not know. If it was meant to apply to interstate commerce all the principles of common law relating to combinations, it would then make the Sherman anti-trust law very much more drastic and oppressive than it is now with reference to labor organ izations. If, on the other hand, it was only intended to wipe out the Sherman anti-trust law as to labor organizations and leave them subject to only such inhibitions as were "unlawful at common law," then the legis lation would be absolutely meaningless and ineffective, because, as is thoroughly well known, there is no federal common criminal law, and if common-law principles with reference to combinations in restraint of trade applied to interstate transporta tion, the enactment of the Sherman anti trust law would be the work of superero gation and entirely unnecessary. Which one of these meanings was intended by the astute legal gentlemen responsible for the language of this section I do not undertake to say. If the first, clearly it
would be extremely offensive to the labor organizations and would not meet with the approval of the committee. If the second, it was an insid ous effort to absolutely destroy the operations of the Sherman anti trust law as to labor organizations, thus by indirection, without clearly disclosing upon its surface, accomplishing a result that was certainly not intended, if the state ments of Mr. Low and Mr. Jenks, who were the principal promoters of the legislation before the committee, can be relied upon, because they distinctly said that under no circumstances did they wish any legislation passed that would legalize or authorize such a boycott as was denounced by the Supreme Court of the United States in the Danbury hat case. The further language of this substitute, however, presented and urged by th' m very cleaVly, in my judgment, did authorize just exactly such a boycott, because it provided that the provisions of the act should not be enforced where there was a combination of employees "for the purpose of obtaining from employers peaceably or by any means not unlawful at common law, satisfactory terms," etc. It will be noted that this does not con fine the purpose to means unlawful at com mon law, because by the very language of the section the phrase "by any means not unlawful at common law" is alternative and not used as synonymous with "obtain ing from employers peaceably." Now, the fact is that in the Danbury hat case the results accomplished, which were clearly subject to the prohibition of the Sherman anti trust law, according to the decision of the Supreme Court of the United States, were in every instance peaceable. It was specifically and distinctly a peaceable boycott. It was an attempt on the part of employees to get from their employers, "peaceably," satisfactory terms. So also was the boycott denounced by Mr. Justice Gould in his decision in the Bucks Stove and Range Company case.
