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THE GREEN BAG
tract, but here is one issued to protect a breach, issued not to enforce a contract right but to take away one. The right of the majority to impose a fine is a contract right and it is wiped out by the injunction. Why is not the employer himself in the position of the third party who is attempt ing to force a person under contract with another to break that contract? The case seems to resolve itself into a question whether there are two parties or three concerned in the problem. One fun damental difficulty with the position of the majority is that it persists in regarding the members of the union as separate individ uals, and the act of the union officials as the act of a third party when there are many authorities to the effect that the laborers have a right to combine and be treated as a unit.1 Mr. Justice Sheldon remarks that the law will not do so vain a thing as to declare the right of labor unions to carry on a justifiable strike and then refuse them the use of the only practicable means by which their acknowledged rights can be secured. The majority emphasizes the tremendous power of labor organizations. The minor ity replies: "Gloomy vaticinations of in jurious results to be apprehended from the excessive power which labor unions may acquire by their combination of many individuals into one body do not greatly impress us. The power of capital hitherto has not been found insufficient to prevent other than proper advantages from being gained by the representatives of labor, nor does it seem likely to be insufficient in the future. If it shall appear that there is such a danger, yet we cannot alter the law by denying to labor unions the right and powers which the law gives to all lawful associations." This last remark by Mr. Justice Sheldon is of very deep significance. Is not the whole question legislative rather than judicial? When the court discusses the rel ative powers of capital and labor and the 1 20 Harvard Law Review, 349, 350.
probable result of their conflict, is it not treating of a legislative question? The ancient common law had some good points which we may be drifting away from. The Anglo Saxons who made the common law were a sturdy race given to working out their own problems without asking the aid of the courts. The only matters with which the common law policeman con cerned himself were crimes of violence. The failure of the common law to punish thievery by trick or illicit intercourse are familiar examples of this. When the peo ple were vexed with commercial abuses and labor troubles, when they wanted to pre serve a free market for merchandise or labor, they went, not to the courts, but to the legislature and the statutes against engrossing, forestalling1 and regrating and the statutes of laborers2 are well known examples of this activity. The English courts are following these lines today. The cases of the Mogul Steamship Com pany3 and Allen v. Flood4 clearly exhibit the tendency to leave to Parliament ques tions of commercial expediency.5 Is not the English and common law rule more consonant with our frame of gov ernment? We have legislatures with broad powers to correct abuses and these powers have been frequently exercised. The courts are to administer laws, not to make them. Is it not wiser for popular 1 St. 5 and 6 Edw. VI. c. 14. Forestalling is said to be also a crime at common law, i Hawk. P. C. 234. See Ordinance for bakers, etc. c. 10, reprinted in Beale's Cases on Criminal Law, p. 816. See also Coke, 3rd Inst. 196 reprinted in Heale's Cases on Criminal Law, p. 818. The statutes against engrossing, fore stalling and regrating were repealed by 7 and 8 Viet. C. 24, s. i, 4.
- 23 Ed. 3, c. i, 2; 5 Eliz. c. 4, s. 5, 6. See further
the English Combination statutes, 40 George 3, c. 106; 5 George 4, c. 95; 6 George 4, c. 129; 34 and 35 Viet. c. 31; 38 and 39 Viet. c. 8.6; 39 and 40 Viet c. 22, discussed in 17 Harvard Law Review, 511-532. ' 23 Q. B. D. 598. 4 L. R. A. C (1898) i. 5 See however Temperton v. Russell (1893) i Q. B. 715.
