19th Century Labor Law: Commonwealth v. Hunt, Its Precedents, and Its Progeny

19th Century Labor Combination Jurisprudence Preceding Hunt

In the early 19th-century, apprenticeship under a master, followed by independent production, was still the typical career path for most artisans. However, this model was rapidly changing, particularly in the major metropolitan areas. For instance, in Boston in 1790, the artisan population was estimated at 1,300, and the vast majority of those artisans were described as “master workman”. By 1815, journeymen workers without independent means of production had displaced these “masters” as the majority. At that time journeymen also outnumbered masters in New York and Philadelphia. This shift in the employment situations of trade workers occurred as a result of large-scale transatlantic and rural-urban migration. The migration into the coastal cities created a larger population of potential laborers, which in turn allowed controllers of capital to invest in labor-intensive enterprises on a larger scale. Craft workers found that these changes launched them into competition with each other to a degree that they had not experienced previously, which limited available opportunities and created substantial risks of downward mobility that had not existed prior to that time.

These conditions led to the first labor combination cases in America. Over the first half of the 19th century, there are 23 known cases of indictment and prosecution for criminal conspiracy, taking place in six states: Pennsylvania, Maryland New York, Louisiana, Massachusetts and Virginia. The central question in these cases was invariably whether workmen in combination would be permitted to use their collective bargaining power to obtain benefits—increased wages, decreased hours, or improved conditions—which were beyond their ability to obtain as individuals. The cases overwhelmingly resulted in convictions.

One of the central themes of the cases prior to the landmark decision in Commonwealth vs. Hunt, which permanently settled the legality of unions, was the applicability of the English common law in post-revolutionary America. Whether the English common law applied, and in particular whether the common law notion that a conspiracy to raise wages was illegal applied, was frequently the subject of debate between the defense and the prosecution. For instance, in Commonwealth v. Pullis, a case in 1806 against a combination of journeymen cordwainers in Philadelphia for conspiracy to raise their wages, the defense attorneys referred to the common law as arbitrary and unknowable and instead praised the legislature as the embodiment of the democratic promise of the revolution. In ruling that a combination to raise wages was per se illegal, Recorder Moses Levy strongly disagreed, writing that “[t]he acts of the legislature form but a small part of that code from which the citizen is to learn his duties . . . [i]t is in the volumes of the common law we are to seek for information in the far greater number, as well as the most important causes that come before our tribunals.”

As a result of the spate of convictions against combinations of laborers, the typical narrative of early American labor law states that, prior to Hunt in Massachusetts in 1842, peaceable combinations of workingmen to raise wages, shorten hours or ensure employment, were illegal in the United States, as they had been under English common law. Leonard Levy went so far as to refer to Hunt as the “Magna Carta of American trade-unionism,” illustrating its perceived standing as a major point of reversal in the American legal treatment of unions.

However, Levy’s statement incorrectly characterizes the case law in American prior to Hunt. Pullis was actually unusual in strictly following the English common law and holding that a combination to raise wages was by itself illegal. More often combination cases prior to Hunt did not hold that unions were illegal per se, but rather found some other justification for a conviction. After Pullis in 1806, 18 other prosecutions of laborers for conspiracies followed within the next three decades. However, only one such case, People v. Fisher, also held that a combination for the purpose of raising wages was illegal. Several other cases held that the methods used by the unions, rather than the unions themselves, were illegal. For instance, in People v. Melvin, cordwainers were again convicted of a conspiracy to raise wages. Unlike in Pullis, however, the court held that the combination’s existence itself was not unlawful, but nevertheless reached a conviction because the cordwainers had refused to work for any master who paid lower wages, or with any laborer who accepted lower wages, than what the combination had stipulated. The court held that methods used to obtain higher wages would be unlawful if they were judged to be deleterious to the general welfare of the community. Commonwealth v. Morrow continued to refine this standard, stating that, “an agreement of two or more to the prejudice of the rights of others or of society” would be illegal. Another line of cases, lead by Justice John Gibson of the Supreme Court Pennsylvania’s decision in Commonwealth v. Carlisle, held that motive of the combination, rather than simply its existence, was the key to illegality. Gibson wrote, “Where the act is lawful for an individual, it can be the subject of a conspiracy, when done in concert, only where there is a direct intention that injury shall result from it.” Still other courts rejected Pullis’ rule of per se illegality in favor of a rule that asked whether the combination was a but-for cause of injury. Thus, as economist Edwin Witte stated, “[T]he doctrine that a combination to raise wages is illegal was allowed to die by common consent. No leading case was required for its overthrow.” Nevertheless, while Hunt was not the first case to hold that labor combinations were legal, it was the first to do so explicitly and in clear terms.

Commonwealth v Hunt

Background

The Boston Journeymen Bootmaker’s Society, a combination founded in 1835 and local to Boston, was at the center of the events leading up to Commonwealth v. Hunt. Members of the society worked exclusively on high-quality boots. In 1835, in response to rampant inflation caused by Andrew Jackson’s destruction of the Bank of the United States and the corresponding increase in the cost of living, the society raised their pay, by means of striking, to $1.75 per pair of boots produced. In 1936, they staged another strike; this time successfully raising their pay to $2.00 per pair. Their rates remained the same in 1940, when the incidents giving rise to Hunt occurred, but by that time increases in the quality of the boots being produced prevented the bootmakers from producing as quickly, essentially lowering their hourly rate in the midst of a severe economic downturn triggered by the Panic of 1837.

Facts

The prosecution in Hunt originated from a dispute between a journeyman bootworker, Jeremiah Horne, and the Society. Horne began to have disagreements with the Society when he agreed to do extra work on a pair of boots without charging for the extra labor. The Society imposed a fine on Horne, which he refused to pay. Ultimately the fine was forgiven when Horne’s master, Isaac Wait, agreed to pay Horne for the work at the Society-fixed rate.

Horne nevertheless continued to breach the Society’s rules, and soon had incurred another $7 in fees. The society demanded that he pay or leave the society. Wait advised Horne to pay and remain in the Society, but when Horne refused, Wait fired him.

Horne responded by entering a compliant with the District Attorney, Samuel D. Parker, and by sending his cousin, Dennis, who was also a member of the Society, to try to reach a settlement with them. Dennis attended a Society meeting in early October of 1840, but was ridiculed and stormed out.

A few days later, on October 8, an indictment was entered charging that the Society was a criminal conspiracy to impoverish employers and non-union laborers. Seven members of the Society were named as defendants. Although there was no evidence that the Society planned to strike or that there was any large-scale disagreement between employers and the Society, District Attorney Parker decided to take the case. The trial began on October 14 and ended on October 22nd.

Trial Court Decision

At trial, the prosecution, lead by District Attorney Parker, focused on proving that the Society was coercive. Wait, Horne’s master, testified that “he did not feel at liberty to employ any but society men,” because he “would not wish to lose five or six good workmen for the sake of one.” However, he also testified that the wages stipulated by the Society were not unreasonably high and that the Society provided good workmen.

The defense counsel, Robert Rantoul, Jr., was able to successfully prevent Horne himself from testifying on the ground that he was an atheist. The prosecution, however, was able to directly ask masters, over Rantoul’s objection, whether the Society was coercive. Several said yes.

Rantoul’s defense focused on establishing the benefits of the society. He called witnesses who testified that the wages stipulated by the Society were reasonable and that non-members were also able to attain wages at the same rate. Non-workers were only prevented from working at a handful of the larger shops. Rantoul also called representatives from other professional organizations, such as the Boston Medical Association and the Boston Bar, of which the Judge, the District Attorney, the Attorney General, Daniel Webster and the Chief Justice of the Massachusetts Supreme Court, Lemuel Shaw, were all members. Rantoul also solicited testimony that the Bar Association fixed minimum fees for which its members could receive and forbade members from advising or consulting any non-member attorney. He hoped to show the jury that professional organizations such the Bootmaker’s Society were not uncommon in Boston.

Rantoul also argued to the jury that that there was no law in Massachusetts against a conspiracy in restraint of trade (At that time in Massachusetts, juries still served as triers of both law and fact). Rantoul told the jury, “We have not adopted the whole mass of the common law of England. [. . . ] Law against acts done in restraint of trade belong to that portion of the law of England which we have not adopted.

Rantoul’s efforts, however, were greatly undermined by Judge Thacher’s charge to the jury. Thacher told the jury that if societies such as the Bootmaker’s Society were justified by the law and became common, “all industry and enterprise would be suspended, and all property would become insecure. It would involve in one common, fatal ruin, both laborer and employer, and the rich as well as the poor.” Thacher also specifically rebutted Rantoul with regard to the status of the common law, stating that “conspiracy is an offence at common law, as adopted in Massachusetts, and by this decision and that of this court you must abide.”

Given Thacher’s instructions, it is unsurprising that the jury convicted all seven defendants. Rantoul appealed the case to Supreme Judicial Court of Massachusetts.

Supreme Court Opinion

Chief Justice Lemuel Shaw handed down the Supreme Court’s decision in Hunt in the March term of 1842. Shaw wrote his opinion in Hunt just one week after he decided another landmark labor case, Farwell v. Boston & Worcester R.R. Co. In that case, Shaw upheld the fellow-servant rule by deciding that a railroad company could not be held liable when a mistake by an employee operating a rail switch caused an injury to another employee. As the outcome in Farwell would suggest, Shaw was not ordinarily considered a friend of labor.

However, Shaw’s opinion, from its outset, aligned closely with Rantoul’s argument. Crucially, while Shaw noted that Massachusetts common law had inherited from England the rule that a combination to perform an unlawful or criminal act is itself illegal, he quickly followed by asserting that The King v. Journeymen Tailors of Cambridge held that it was not illegal to set wages in Massachusetts. Therefore a combination with the intention of setting wages would not be illegal. Shaw continued by holding that the Society’s stated purpose of coercing other bootmakers to join the Society was acceptable. Shaw wrote, “[Membership by all bootmakers] would give them a power which might be exerted for useful and honorable purposes, or for dangerous and pernicious ones.” If the power were used for ill, there would be a cause of action against the society, but the goal itself was not illegal.

Shaw then addressed the means used by the Society to achieve their end. Shaw took a favorably narrow view of the means used by the Society, ignoring the potential for violence and harassment and considering only the Society’s refusal to work for employers who employed non-members. Shaw wrote, “[They] are fee to work for whom the please, or not to work, if they so prefer . . . We cannot perceive that it is criminal for men to agree together to exercise their own acknowledged rights, in such a manner as best to subserve their own interests.”

Having held that combinations were not illegal in Massachusetts so long as they had lawful purposes and used lawful means to achieve them, and having found that the Society neither pursued unlawful purposes nor used unlawful means, Shaw reversed the trial court’s holding and ruled for the defendants.