Commonwealth v. Hunt

Commonwealth v. Hunt (1842) was a landmark legal decision issued by the Massachusetts Supreme Judicial Court on the subject of labor unions. Prior to Hunt the legality of labor combinations in America was uncertain. In March 1842, Chief Justice Lemuel Shaw ruled that labor combinations were legal provided that they were organized for a legal purpose and used legal means to achieve their goals.

Labor Combination Law Preceding Hunt

The history of labor disputes in America substantially precedes the revolutionary period. (1) In 1636, for instance, there was a fishermen’s strike on an island off the coast of Maine, and in 1677 twelve carmen were fined for going on strike in New York City. However, most instances of labor unrest during the colonial period were temporary and isolated, and rarely resulted in the formation of permanent groups of laborers for negotiation purposes. (2) Little legal recourse was available to those injured by the unrest because strikes were not typically considered illegal. (3) The only known case of a criminal prosecution of workers in the colonial era occurred as a result of a carpenters’ strike in Savannah, Georgia in 1746. (4)

By the beginning of the 19th-century, after the revolution, little had changed. The career path for most artisans still involved apprenticeship under a master, followed by a move into independent production.(5) However, over the course of Industrial Revolution, this model rapidly changed, particularly in the major metropolitan areas. For instance, in Boston in 1790, the vast majority of the 1,300 the artisans in the city described themselves as “master workman”. By 1815, journeymen workers without independent means of production had displaced these “masters” as the majority.(6) By that time journeymen also outnumbered masters in New York and Philadelphia.(7) This shift occurred as a result of large-scale transatlantic and rural-urban migration. 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.(8) Craft workers found that these changes launched them into competition with each other to a degree that they had not experienced previously, which limited their opportunities and created substantial risks of downward mobility that had not existed prior to that time.(9)

These conditions led to the first labor combination cases in America. Over the first half of the 19th century, there were twenty-three known cases of indictment and prosecution for criminal conspiracy, taking place in six states: Pennsylvania, Maryland, New York, Louisiana, Massachusetts and Virginia.(10) The central question in these cases was usually 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. However, in most instances the plaintiffs’ desire was to establish favorable precedent, not to impose harsh penalties, and the fines were typically modest. (11)

One of the central themes of the cases prior to the landmark decision in Commonwealth vs. Hunt 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.(12) For instance, in Commonwealth v. Pullis, a case in 1806 against a combination of journeymen cordwainers in Philadelphia for conspiring 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.(13) 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.”(14)

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.(15) In England, criminal conspiracy laws were first held to include combinations in restraint of trade in the Court of the Star Chamber early in the 17th Century.(16) The precedent was solidified in 1721 by The King v. Journeymen Tailors of Cambridge, which found tailors guilty of a conspiracy to raise wages.(17) Leonard Levy went so far as to refer to Hunt as the “Magna Carta of American trade-unionism,”(18) illustrating its perceived standing as the major point of divergence in the American and English legal treatment of unions which, “removed the stigma of criminality from labor organizations.”(19)

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.(20) After _Pullis in 1806, eighteen other prosecutions of laborers for conspiracies followed within the next three decades.(21) However, only one such case, People v. Fisher, also held that a combination for the purpose of raising wages was illegal.(22) Several other cases held that the methods used by the unions, rather than the unions themselves, were illegal.(23) 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.(24) 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.(25) 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.(26) Another line of cases, led by Justice John Gibson of the Supreme Court of Pennsylvania’s decision in Commonwealth v. Carlisle, held that the motive of the combination, rather than simply its existence, was the key to illegality.(27) 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.”(28) 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.(29) 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.”(30) 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.

Trial and Appeal

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.(31) 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.(32) 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. However, 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.(33)

Facts

The indictment 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.(34) Ultimately the fine was forgiven when Horne’s master, Isaac Wait, agreed to pay Horne for the work at the Society-fixed rate.(35)

Horne nevertheless continued to breach the Society’s rules, and soon had incurred another $7 in fees.(36) The Society demanded that he pay. When Horne refused, the Society threatened a walkout of Wait’s shop and Wait fired him.(37)

Horne responded by entering a complaint with the Suffolk County 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.(38)

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, Parker decided to take the case.(39) The trial began on October 14 and ended on October 22nd.(40)

Trial Court Decision

At trial, the prosecution, lead by 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.”(41) However, he also testified that he had not been oppressed and that he had benefited from the Society’s existence.(42) Parker tried to call Horne himself to testify, but the defense successfully prevented his testimony from being heard on the ground that he was an atheist.(43) The prosecution, however, was able to directly ask several masters, over the defense’s objection, whether the Society was coercive. Some said yes.(44)

The Society hired Robert Rantoul, Jr., a strong Democrat and a political opponent to the conservative Whig party, to represent them.(45) 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.(46) 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.(47) 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.(48) 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."(49) Rantoul argued that, as the conspiracy itself was not unlawful, the question was whether the defendants had injured anyone through an illegal act.(50) He stated, “We contend they have a perfect right to form a society for their mutual interest and improvement. [. . .] To substantiate these charges [. . .] they must prove actual force, fraud and nuisance.”(51) Rantoul’s emphasis on the requirement of injury recalled Gibson’s opinion in Carlisle twenty years earlier, and drew from the entire line of cases opposing Pullis and Fisher.(52)

Rantoul’s efforts, however, were greatly undermined by Judge Thacher’s emotional 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, it would “render property insecure, and make it the spoil of the multitude, would annihilate property, and involve society in a common ruin.”(53) 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.”(54) Levy wrote that Thacher’s charge, “practically directed a verdict of guilty.”(55)

Given Thacher’s instructions, it is unsurprising that the jury convicted all seven defendants. Rantoul appealed the case to the 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’s opinion, from its outset, aligned closely with Rantoul’s argument. Crucially, Shaw began by defining a criminal conspiracy as “a combination [. . .] to accomplish some criminal or unlawful purpose, or to accomplish some [lawful] purpose [. . .] by criminal or unlawful means.”(56) Shaw asserted that because Massachusetts, unlike England in 1721, set no legal limit on wages, _Journeymen Tailors of Cambridge’s holding that a conspiracy to raise wages was illegal was not applicable precedent in Massachusetts. Because raising wages was not an illegal activity, a combination with the intention of setting wages was also not illegal.(57) 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.”(58) If the power were used for ill, there would be a cause of action against the Society, but the goal of organizing the bootmakers was itself not illegal.

Shaw then addressed the means used by the Society to achieve its 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 free 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.”(59)

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.

Shaw's landmark opinion in favor of labor was incongruous with his politics and other jurisprudence. 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.(60) As the outcome in _Farwell would suggest, Shaw was not ordinarily considered a friend of labor.(61) Walter Nelles wrote that, “The constituency to which [Shaw] was keenest comprised State Street and Beacon Hill, the bankers, the textile manufacturers, the railway builders.”(62) Nelles theorized that Shaw was more concerned with tariff protection than with labor concerns, and that his decision in Hunt was a product of strategic consideration. Nelles notes that in 1842, in the middle of a depression, labor unrest in the textile mills that drove much of Boston’s economy was very unlikely.(63) However, Whigs like Shaw may have been concerned that agitating the working class would help bring the Democratic party to power in the election of 1844.(64) Whigs worried that the Democrats would abolish the tariffs protecting the weakened textile industry. Shaw’s decision in Hunt therefore, may have been motivated by a desire to placate Boston’s working class.

Whatever Shaw’s motivation, his opinion in Hunt provided a clear statement that labor combinations which used legal means to achieve legal ends were lawful.

Significance

The degree of Hunt’s impact is a matter of some debate. Levy notes that in the forty years after Hunt was decided, the case served as the authoritative statement of the law on labor combinations.(65) However, as favorable as Hunt was for labor unions, its holding still left the door open for courts to convict strikers by declaring certain labor activity criminal, or by holding the purpose of a strike to be an unlawful interference with private enterprise. Also, Witte notes that there were limited opportunities to apply Hunt until the end of the Civil War. Witte was able to find only three conspiracy cases brought anywhere in the United States between 1842 and 1863.(66)

However, between 1863 and 1880 the pace of conspiracy indictments picked up again. At least fifteen cases were brought during that time.(67) Despite Hunt’s softening of the conspiracy doctrine, convictions were still obtained and harsh sentences imposed. For instance, in 1869, members of a mine committee in Pottsville, Pennsylvania were found guilty of conspiracy, sentenced to jail for thirty days and heavily fined.(68) Prosecutions in this period led to labor efforts to gain relief through legislation. In 1869, Pennsylvania passed a statute declaring labor unions legal if formed for “mutual aid, benefit, and protection” and when convictions continued to be obtained, passed another law in 1872 providing that laborers could collectively refuse to work for any employer.(69) The need for such legislation suggests that Hunt, while beneficial for labor, was hardly a guarantee that that workers would be able to organize without fear of legal repercussion.

Primary Sources

1. Articles written about Commonwealth v. Hunt from the Boston Morning Post, a former Democrat-leaning newspaper published in Boston, published in late October, 1840.

I was able to take photographs of the newspaper at the New York Historical Society Library. The Boston Morning Post, which eventually became the Boston Post, was a popular daily newspaper in Boston and New England for over one hundred years before it closed in 1956. The paper was founded in 1831 by Boston businessmen Charles G. Greene and Williams Beals - their names can be seen under the newspaper's title in the attached documents. The Post's pro-labor, pro-Democrat editorials, such as the one in the October 16th, 1840 edition, were often opposed by Whig-sympathetic editorials written in the Boston Advertiser. I tried to find the October, 1840 issues of the Advertiser which ran articles on Hunt, but was unable to find any in New York. (The Library of Congress has an excellent resource called Chronicling America which is a directory of historic American newspapers and where they can be accessed.)

• October_16_1840.pdf: From Oct, 16, 1840 edition of the Boston Morning Post

• October_17_1840.pdf: October 17, 1840 edition of the Boston Morning Post

• October_19_1840.pdf: October 19, 1840 Edition of the Boston Morning Post

• October_20_1840.pdf: October 20, 1840 Edition of the Boston Morning Post

• October_22_1840.pdf: October 22, 1840 Edition of the Boston Morning Post

• October_23_1840_pt1.pdf: October 23, 1840 Edition of the Boston Morning Post, part 1

• October_23_1840_pt2.pdf: October 23, 1840 Edition of the Boston Morning Post, part 2

2. Handwritten notes of Thomas Lloyd from the case Commonwealth v. Pullis, one of the important precedents to Commonwealth v. Hunt. Thomas Lloyd is considered to be the “Father of American Shorthand”. Lloyd studied shorthand in what is now Belgium before coming to the United States just prior to the Revolutionary War. Lloyd fought in the Maryland Regiment Fourth Company during the war. (70)

After the war, Lloyd gained notoriety for recording and publishing both the debates of the Pennsylvania Convention to ratify the Constitution and reports from the First Federal Congress. Lloyd’s notes are the only first-hand report of the Commonwealth v. Pullis proceedings. (71)

* CommonwealthvPullis_LloydNotes.pdf: Shorthand Notes of Thomas Lloyd on the case Commonwealth v. Pullis

Notes

1 : John R. Commons, et al, eds., A Documentary History of American Industrial Society, vol. 3, ii-iii, (Cleveland, 1910).

2 , 3 , 4 : Commons, iii

5 : Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic 111 (Cambridge University Press 1993).

6 , 7 , 8 , 9 : Tomlins at 112

10 : Tomlins at 128

11 : Commons, viii

12 , 15 : Tomlins at 133

13 : Thomas Lloyd, The Trial of the Boot and Shoemaker of Philadelphia, on an Indictment for a Combination and Conspiracy to Raise Their Wages, 107-24.

14 : Lloyd, at 107-24.

16 , 17 : Commons, iv

18 : Leonard Levy, Law of the Commonwealth and Chief Justice Shaw, 183 (Oxford University Press 1957)

19 : Levy, at 183

20 : Edwin E. Witte, Early American Labor Cases, 35 Yale L.J. 825, 825 (1926)

21 , 22 , 23 , 30 : Witte, at 826

24 : Tomlins, at 139

25 : Tomlins, at 140

26 : Charles Shaler, reporter, Report of the Trial of the Journeymen Cordwainers, of the Borough of Pittsburgh (Pittsburgh, 1817), reprinted in John R. Commons et al., eds, A Documentary History of American Industrial Society (Cleveland, 1910), 4:15-87, at 24.

27 , 28 : Tomlins, at 146

29 : Tomlins, at 147

31 : Walter Nelles, Commonwealth v. Hunt, 32 Col. L. Rev. 1128, 1131 (1932)

32 , 33 : Nelles, at 1131

34 : Nelles, at 1132; Tomlins at 200

35 , 36 , 38 : Nelles, at 1132

37 , 45 : Tomlins, at 200

39 , 40 : Nelles, at 1133

41 : Nelles, at 1135

42 : Tomlins, at 201

43 , 44 : Nelles, at 1136

46 , 47 , 48 : Nelles, at 1138

49 : Nelles, at 1144

50 , 51 : Tomlins, at 202

52 : Tomlins, at 203

53 : Peter Oxenbridge Thacher, A Charge to the Grand Jury of the County of Suffolk, for the Commonwealth of Massachusetts, at the Opening of the Municipal Court of the City of Boston, 19.

54 : Thacher, at 22

55 : Levy, at 186

56 : Com. v. Hunt, 45 Mass. 111, 121(1842)(emphasis added)

57 : Hunt, at 122

58 : Hunt, at 129

59 : Hunt, at 130

60 : Farwell v. Boston & W.R. Corp., 45 Mass. 49, (1842)

61 , 62 : Nelles, at 1152

63 , 64 : Nelles, at 1158

65 : Levy, at 206

66 , 67 : Witte, at 829

68 , 69 : Witte, at 830

70 : David Upsal, A View from Behind Bars: The Diary of Thomas Lloyd, Revolutionary and Father of American Shorthand, from Newgate Prison 1794-1796, available at: http://blog.library.villanova.edu/digitallibrary/2011/04/11/a-view-from-behind-bars-the-diary-of-thomas-lloyd-revolutionary-and-father-of-american-shorthand-from-newgate-prison-1794-1796

71 : Marion Tinling, Thomas Lloyd's Reports of the First Federal Congress, 18 Wm & Mary Quarterly 519.