who purchase such products, then the concerted action of the whole combination may be said to be essentially coercive, since its tendency to promote the interests of the persons adopting it depends on the annoyance it causes to the persons on whom it inflicts loss. I think that the distinction is important, and indicates the point at which the repressive action, either of law or of public opinion, is required. At the same time I think that it is extremely difficult to lay down a legal rule that will effectively prevent the mischief in question without imposing severe and dangerous restraints on the freedom of industrial intercourse. Firstly, in matters of buying and selling it is difficult, without injustice to the poor, to place any restrictions on the action of an association which are not placed on the action of individuals; since in such matters the coercive force capable of being exercised by an association is for most purposes not more than equivalent to that of a single individual whose wealth is equal to the aggregate wealth of the association. Combination is, in fact, the only way by which the poor can place themselves on a par with the rich in bargaining. Now we can hardly lay down as a general rule that individuals are not to be influenced in buying by considerations other than the quality of the article purchased and the labor spent in purchasing it, or in selling by considerations other than the price; and yet, if such other considerations are admitted, it seems hardly possible to exclude conditions that are designed to have a coercive effect. Thus a man must be generally allowed to exchange with A rather than B, for the sake of consanguinity or friendship, or because A promotes his convenience in other ways, or because B is surly and ill-mannered; but, if so, he cannot be prevented from using the exchange as a means of coercing B to conform to his wishes in other matters besides the exchange. He must be generally allowed to prefer an employer who employs his friends; can he be legally prevented from refusing to work for an employer who employs his enemies? He must be generally allowed to sell on unremunerative terms in order to draw business away from his rivals; can he be prevented from doing this in order to force a rival out of the trade? And, if such prevention is impossible in the case of an individual, it will be difficult to make it equitable, even if it be possible, in the case of an association,-for the economic reason above stated. Further, in attempting to repress mischievous moral coercion, there is a danger of preventing moral coercion of a kind useful to society. For instance, it is prima facie to the advantage of society that a physician should refuse to consult with one whom he considers a quack: he is hardly likely to do this unless he is supported by a preponderance of medical opinion; and, though the preponderance of medical opinion may err, there is no general presumption that Government will be qualified to correct its errors. Similarly, it is prima facie to the advantage of society that any skilled workers should refuse to work with those who use bad methods; and, though in some cases the criterion of “badness" applied may be the interest of the class where this diverges from the interest of the community, it does not seem generally advantageous that Government should intervene to determine what methods are admissible. Again, it is difficult to say that an employer may not refuse to employ workmen of whose character he disapproves-even if they are efficient workmen or to require him to prove to the satisfaction of a tribunal that his disapproval is well grounded; and, if so, a workman can hardly be prevented from refusing to work for an employer, or with other workmen, whose conduct he disapproves. In short, in these and similar cases, it is difficult to interfere without hampering the natural operation of the moral or social sanction, whose indispensability as a supplement to the legal sanction has been pointed out in a previous chapter. Nor does it seem reasonable to lay down that the operation of the social sanction is only salutary when it is due to the spontaneous and unconcerted action of individuals, and that it becomes dangerous to freedom when it is the result of concert; since exclusion from social relations, as an expression of moral disapprobation, is generally likely to be more judicious if performed after consultation and with knowledge of the intentions of others. I admit, however, that a new danger to freedom is introduced if concert in such action is the result of pressure; i.e., if among the persons who combine to exclude others from voluntary social relations there are some who are only induced to combine by the fear of being similarly excluded if they refuse. I think that this moral coercion to coerce "coercion in the second degree”— is usually mischievous, but it is difficult to say that it is so always; it is difficult to say that there is no vice so dangerous and contagious as to justify a concerted refusal to associate with the associates of those who practice it. And it could hardly be expedient to require judicial proof of the presence of such vice in order to justify this concerted exclusion; since it is often in cases where such judicial proof is difficult that the social sanction is especially needed to supplement the deficiencies of the legal sanction. On the whole, therefore, while admitting that the social sanction may easily be misapplied in such cases, I should generally prefer to leave it to the moral opinion of other sections of the community to censure and repress the misapplication. I conclude, therefore, that the moral coercion exercised both by individuals and by associations, so far as it is effected by acts legitimate apart from their coercive intent, should not generally be made a legal offense, if the mischief it causes can be kept within tolerable limits by any other means; though any intimidation by committing or threatening acts of physical violence or other violation of ordinary rights-including breaches of contract-should be repressed with as much severity as may be required.1 830. Topic 1. Interference with Contractual Relations (Statutes at Large, Pickering's ed., Vol. Item, If any reaper, condition that he be, II, p. 27.) Statute of Laborers, 23 Edw. III (1349), c. II. mower, or other workman or servant, of what estate or retained in any man's service, do depart from the said service without reasonable cause or license, before the term agreed, he shall have pain of imprisonment. And that none under the same pain presume to receive or to retain any such in his service. 831. JOHN H. WIGMORE. Interference with Social Relations. (1887. Amer. Law Rev., XXI, 766.) . . . The Statute of Laborers, enacted in 1350, had as its object to provide for a deficiency in the common law. A penalty was therein imposed on any laborer who departed from his employer before the end of the term of service to which he had bound himself, and a remedy was given the employer against any person who received and retained the servant. In the proceedings against the third party it became common to allege that 1 [OTHER CHAPTERS ON THE JURAL AND ETHICAL ASPECT OF THIS SUBJECT, L. Miraglia, "Comparative Legal Philosophy," Book I, Ch. VIII.] the defendant procured the servant to depart and was now retaining him. The features of this action, as distinct from the common law action, were the plaintiff's retainer (or contract with the servant) and the defendant's receiving and employing (usually called harboring) or his procuring to depart (now known as enticement). Thus, under the statute, enticement became unlawful, but its unlawfulness was restricted to cases where the servant was bound by an express agreement to serve for a term. Moreover, the provisions applied only to "messor, falcator, aut alius operarius vel serviens." Now this statute did not modify or abrogate a part of the common law, as did, for instance, De Donis or Quia Emptores. It simply gave a remedy where none existed. This remedy was therefore the creature of the statute, and ceased when the statute was repealed in 1863. 832. FAWCET v. BEAVRES. (King's Bench, 1672. 2 Lev. 63.) Case, and declares that he retained A to serve him a year, and that he went away without leave, and the defendants, satis scientes & machinantes to deprive the plaintiff of the service of the said A, retinuerunt & custodiverunt the said A, licet saepius requisitus to the contrary. Judgment was given in Communi Banco by default; whereupon error was brought and assigned, that the action lies not, for they did not entice the said servant to go away, and he of himself having deserted the service of the plaintiff, and being thereby at liberty, it was lawful for the defendants to receive him. Sed non allocatur, for the action lies without their encitement, they having notice that he was the hired servant of another; whereupon they affirmed the judgment. 833. LUMLEY v. GYE QUEEN'S BENCH. 1853 2 E. & B. 216 THE first count of the declaration stated that plaintiff was lessee and manager of the Queen's Theatre, for performing operas for gain to him; and that he had contracted and agreed with Johanna Wagner to perform in the theatre for a certain time, with a condition, amongst others, that she should not sing nor use her talents elsewhere during the term without plaintiff's consent in writing; yet defendant, knowing the premises, and maliciously intending to injure plaintiff as lessee and manager of the theatre, whilst the agreement with Wagner was in force, and before the expiration of the term, enticed and procured Wagner to refuse to perform; by means of which enticement and procurement of defendant, Wagner wrongfully refused to perform, and did not perform during the term. . . . In each count special damage was alleged. Demurrer. Joinder. The demurrer was argued in the sittings after Hilary term last. Willes, for the defendant. A master may bring an action for enticing away his servant. But these are anomalies, having their origin in times when slavery existed; they are intelligible on the supposition ... that the servant is the property of his master; and, though they have been continued long after all but free service has ceased, they are still confined to cases where relation of master and servant, in the strict sense, exists. In the present case Wagner is a dramatic artiste, not a servant in any sense. Cowling, contra. The general principle is laid down in Comyns's Digest, Action upon the Case (A). "In all cases, where a man has a temporal loss, or damage by the wrong of another, he may have an action upon the case, to be repaired in damages." In Comyns's Digest, Action upon the Case for Misfeasance (A 6), an instance is given: "If he threaten the tenants of another, whereby they depart from their tenures." . . . Now, as neither the tenants, the wife, nor the ward are servants, it cannot be said that the action for procurement is an anomaly confined to the case of master and servant. . . . Surely any one, not a lawyer, would agree that the malicious and intentional procurement of a breach of contract was a wrong. . . . It is not accurate to say that the remedy for breach of contract is confined to those privy to the contract." . . . CROMPTON, J. The effect of the two first counts is that a person, under a binding contract to perform at a theatre, is induced by the malicious act of the defendant to refuse to perform and entirely to abandon her contract; whereby damage arises to the plaintiff, the proprietor of the theatre. It was said, in support of the demurrer, that it did not appear in the declaration that the relation of master and servant ever subsisted between the plaintiff and Miss Wagner; ... and that the engagement of a theatrical performer, even if the performer has entered upon the duties, is not of such a nature as to make the performer a servant, within the rule of law which gives an action to the master for the wrongful enticing away of his servant. And it was laid down broadly, as a general proposition of law, that no action will lie for procuring a person to break a contract, although such procuring is with a malicious intention and causes great and immediate injury. And the law as to enticing servants was said to be contrary to the general rule and principle of law, and to be anomalous, and probably to have had its origin from the state of society when serfdom existed, and to be founded upon, or upon the equity of, the Statute of Laborers. It was said that it would be dangerous to hold that an action was maintainable for persuading a third party to break a contract, unless some boundary or limits could be pointed out; and that the remedy for enticing away servants was confined to cases where the relation of master and servant, in a strict sense, subsisted between the parties; and that, in all other cases of contract, the only remedy was against the party breaking the contract. Whatever may have been the origin or foundation of the law as to enticing of servants, and whether it be, as contended by the plaintiff, an instance and branch of a wider rule, or whether it be, as contended by the defendant, an anomaly and an exception from the general rule of law on such subjects, it must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant by procuring the servant to depart from the master's service, or by harboring and keeping him as servant after he has quitted it and during the time stipulated for as the period of service, whereby the master is injured, commits a wrongful act for which he is responsible at law. I see no reason for confining the case to services or engagements under contracts for services of any particular description; and I think that the remedy, in the absence of any legal reason to the contrary, may well apply to all cases where there is an unlawful and malicious enticing away of any person employed to give his personal labor or service for a given time under the direction of a master or employer who is injured by the wrongful act; more especially when the party is bound to give such personal services exclusively to the master or employer; though I by no means say that the service need be exclusive. It does not appear to me to be a sound answer to say that the act in such cases is the act of the party who breaks the contract; for that reason would apply in the acknowledged case of master and servant. Nor is it an answer to say that there is a remedy against the contractor, and that the party relies on the contract; for, besides that reason also applying to the case of master and servant, the action on the contract and the action against the malicious wrongdoer may be for a different matter; and the damages occasioned by such malicious injury might be calculated on a very different principle from the amount of the debt which might be the only sum recoverable on the contract. Suppose a trader, with a malicious intent to ruin a rival trader, goes to a banker or other party who owes money to his rival, and begs him not to pay the money which he owes him, and by that means ruins or greatly prejudices the party: I am by no means prepared to say that an action could not be maintained, and that damages, beyond the amount of the debt if the injury were great, or much less than such amount if the injury were less serious, might not be recovered. . . ... I think, therefore, that our judgment should be for the plaintiff. ERLE, J. . . . The authorities are numerous and uniform that an action will lie by a master against a person who procures that a servant should unlawfully leave his service. The principle involved in these cases comprises the present; for, there, the right of action in the master arises from the wrongful act of the defendant in procuring that the person hired should break his contract by putting an end to the relation of employer and employed; and the present case is the same. The class of cases referred to rests upon the principle that the procurment of the violation of the right is a cause of action, and that, when this principle is applied to a violation of a right arising upon a contract of hiring, the nature of the service contracted for is immaterial. It ... |