Hostname: page-component-586b7cd67f-2brh9 Total loading time: 0 Render date: 2024-11-30T20:57:27.089Z Has data issue: false hasContentIssue false
  • English
  • Français

The Faces of Coercion: The Legal Regulation of Labor Conflict in Ontario, 1880–1889

Published online by Cambridge University Press:  28 October 2011

Eric Tucker
Get access Rights & Permissions [Opens in a new window]

Extract

Until recently, North American labor law historiography has been dominated by the view that the legal regime regulating trade unions and collective bargaining has passed through three stages of development: repression, toleration, and promotion. This evolutionary narrative served the function of justifying current collective bargaining schemes by showing them to be the progressive realization of political and industrial pluralism. Confidence in the narrative, however, is eroding. In part, this is fuelled by the crisis of the current collective bargaining regime. It no longer appears to be able to deliver the goods. Not coincidentally, critical scholars have also chosen this moment to scrutinize the Whiggish history produced by writers committed to the Wagner Act model and have found it wanting.

Type
Articles
Information
Law and History Review , Volume 12 , Issue 2 , Fall 1994 , pp. 277 - 339
Copyright
Copyright © the American Society for Legal History, Inc. 1994

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. For example, see Carrothers, A. W. R. et al., Collective Bargaining Law in Canada, 2d ed. (Toronto, 1986), pt. 1Google Scholar; Gregory, Charles O., Labor and the Law, 2d rev. ed. (New York, 1961), 13–17.Google Scholar

2. See Drache, Daniel and Glasbeek, Harry, The Changing Workplace (Toronto, 1992) (Canada)Google Scholar; Moody, Kim, An Injury to All (London, 1988) (United States)Google Scholar; Regulating Labour: The State, Neo-Conservatism and Industrial Relations, ed. Haiven, Larry et al. (Toronto, 1990)Google Scholar (international and comparative).

3. Brody, David, “Labor History, Industrial Relations, and the Crisis of American Labor,” Industrial and Labor Relations Review 43 (1989)CrossRefGoogle Scholar makes this link explicitly. The critical literature is vast. See Tomlins, Christopher L., “‘Of the Old Time Entombed’: Resurrection of the American Working Class and the Emerging Critique of American Industrial Relations,” Industrial Relations Law Journal 10 (1988)Google Scholar; Hogler, Raymond L., “Labor History and Critical Labor Law: An Interdisciplinary Approach to Workers' Control,” Labor History 30 (1989).CrossRefGoogle Scholar

4. Fudge, Judy A., “Voluntarism, Compulsion and the ‘Transformation’ of Canadian Labour Law during World War II,” in Canadian and Australian Labour History, ed. Kealey, Gregory S. and Patmore, Greg (Sydney, 1990), 81Google Scholar; Tucker, Eric, “‘That Indefinite Area of Toleration’: Criminal Conspiracy and Trade Unions in Ontario, 1837–77,” Labour/Le Travail 27 (1991).CrossRefGoogle Scholar

5. Palmer, Bryan D., “Labour Protest and Organization in Nineteenth-Century Canada, 1820–1890,” Labour/Le Travail 20 (1987).CrossRefGoogle Scholar

6. The historical development of the legal regulation of trade unions and their activities during this period has received much attention lately. See Forbath, William, Law and the Shaping of the A merican Labor Movement (Cambridge, 1991)Google Scholar; and idem, “Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law,” Law and Social Inquiry 16 (1991); Hattam, Victoria C., Labor Visions and State Power (Princeton, 1993)CrossRefGoogle Scholar; Ernst, Daniel R., “Free Labor, the Consumer Interest, and the Law of Industrial Disputes, 1885–1900,” American Journal of Legal History 36 (1992)CrossRefGoogle Scholar; Hovenkamp, Herbert, “Labor Conspiracies in American Law, 1880–1930,” Texas Law Review 66 (1988)Google Scholar; Fink, Leon, “Labor, Liberty, and the Law: Trade Unionism and the Problem of the American Constitutional Order,” Journal of American History 74 (1987)CrossRefGoogle Scholar; Hurvitz, Haggai, “American Labor Law and the Doctrine of Entrepreneurial Property Rights: Boycotts, Courts, and the Judicial Reorientation of 1886–1895,” Industrial Relations Law Journal 8 (1986).Google Scholar For an excellent introduction to the new labor law scholarship, see Labor Law in America, ed. Tomlins, Christopher L. and King, Andrew J. (Baltimore, 1992).Google Scholar

7. Forbath, “Courts, Constitutions,” and Hattam, Labor Visions, chap. 5.

8. Evans, Peter B. et al., eds., Bringing the State Back In (Cambridge, 1985).CrossRefGoogle Scholar

9. See Jacoby, Sanford M., “American Exceptionalism Revisited: The Importance of Management” in Masters to Managers, ed. Jacoby, Sanford M. (New York, 1991), 173Google Scholar; Dubofsky, Melvyn, “Book Review of Law and the Shaping of the American Labor Movement, by William Forbath,” Industrial and Labor Relations Review 45 (1992).Google Scholar

10. For example, historian Russell, Bob, Back to Work? (Scarborough, 1990)Google Scholar evinces a greater interest in law than most, but omits 1877 to 1900 without comment. Similarly, Palmer, Bryan, Working-Class Experience: Rethinking the History of Canadian Labour, 1880–1991, 2d ed. (Toronto, 1992)Google Scholar integrates law into his discussion of most periods, but not 1880–95. For a legal example, see Carrothers, Collective Bargaining Law, 11–30. I call attention to these gaps not to criticize the authors but to show the need for more work to be done.

11. Kahn-Freund, Otto, “Blackstone's Neglected Child: The Contract of Employment,” Law Quarterly Review 93 (1977): 522.Google Scholar

12. The importance of the continuity is emphasized by Orren, Karen, Belated Feudalism (Cambridge, 1991), 70Google Scholar, where she claims, “the law of master and servant was at the foundation of capitalist development and industrialism….” Also see Tomlins, Christopher L., “The Ties That Bind: Master and Servant in Massachusetts, 1800–1850,” Labor History 30 (1989).CrossRefGoogle ScholarThe Breaches of Contract Act, 1877, S.C. 1877, c. 35, ended the use of criminal sanctions in Canada except in the circumstances specified in the statute. This happened two years after the enactment of identical legislation in England. On Canada, see Craven, Paul, “The Law of Master and Servant in Mid-Nineteenth-Century Ontario,” in Essays in the History of Canadian Law, vol. 1, ed. Flaherty, David (Toronto, 1981), 175.Google Scholar On England, see Simon, Daphne, “Master and Servant,” in Democracy and the Labour Movement, ed. Saville, J. (London, 1954), 160.Google Scholar

The rationalization became harder to sustain after direct imprisonment of debtors was abolished, although some commentators persisted. For example, see Davis, James Edward, The Labour Laws (London, 1875), 8–11Google Scholar, 86–95. There were, of course, other more coercive labor systems operating earlier in the century including slavery and the quasi-military code of discipline of the fur trading companies. Winks, Robin, Blacks in Canada: A History (Montreal, 1971), 1–113Google Scholar; Hamar Foster, “Mutiny of the Beaver. Law and Authority in the Fur Trade Navy, 1835–1840,” in Glimpses of Canadian Legal History, ed. Gibson, Dale and Wesley Pue, W. (Winnipeg, 1991), 15.Google Scholar

13. For a detailed examination of the development of this law, see Orth, John V., Combination and Conspiracy (Oxford, 1991).Google Scholar

14. For differing views, see Craven, Paul, “Workers' Conspiracies in Toronto,” Labour/ Le Travail 14 (1984)Google Scholar and Tucker, “That Indefinite Area.”

15. S.C. 1872, cc. 30, 31. Among the numerous accounts of these events, see Ostry, Bernard, “Conservatives, Liberals, and Labour in the 1870's,” Canadian Historical Review 41 (1960)CrossRefGoogle Scholar; and Chartrand, Mark, “The First Canadian Trade Union Legislation: An Historical Perspective,” Ottawa Law Review 16 (1984).Google Scholar

16. Technically, the immunity only extended to workers who joined a registered trade union. This distinction was ignored in practice and eliminated in the statute consolidation of 1886. R.S.C. 1886, c. 173.

17. S.C. 1875, c. 39; S.C. 1876, c. 37.

18. Hornby v. Close (1867), 10 Cox C.C. 393.

19. Lumley v. Gye (1853), 2 El. & Bl. 216; Hewitt v. The Ontario Copper Lightning Rod Co. (1879), 44 UCQB 287. For an interesting discussion of the gender dimensions of Lumley, see Lea S. VanderVelde, “Hidden Dimensions in Labor Law History: Gender Variations on the Theme of Free Labor” in King and Tomlins, Labor Law in America, 99.

20. Springhead Spinning Company v. Riley (1868), L.R. 6 Eq. 562–63.

21. Prudential Assurance Company v. Knott (1875), L.R. 10 Ch. App. 142.

22. Thomson, A. W. J., “The Injunction in Trade Disputes in Britain Before 1910,” Industrial and Labor Relations Review 19 (1965–1966).Google Scholar

23. Monetary Times, May 20, 1881, p. 1349.

24. Ibid., May 27, 1881, p. 1385.

25. Mail, April 6, 1882, p. 8, col. 4. An earlier caution was reported in Mail, April 4, 1882, p. 8, col. 3.

26. Ibid., April 29, 1882, p. 12, cols. 3–4.

27. Ibid., May 2, 1882, p. 8, cols. 2–3.

28. Globe, May 9, 1882, p. 8, col. 1.

29. Monetary Times, April 17, 1882, p. 1235; ibid., April 21, 1882, pp. 1293–95; ibid., May 5, 1882, p. 1360.

30. Ibid., August 11, 1882, p. 151.

31. Indeed, there were as many strikes in 1883 as there were in 1886, the year most closely associated with labor's uprising in this decade. See Palmer, “Labour Protest.”

32. For a detailed discussion of the strike, see Eugene Forsey, “The Telegraphers' Strike of 1883,” in Transactions of the Royal Society of Canada, ser. 4, 9 (1971): 245. Also see Kealey, Gregory S., Toronto Workers' Respond to Industrial Capitalism 1867–1892 (Toronto, 1980), 177Google Scholar; and Grob, Gerald, Workers and Utopia (Chicago, 1969), 61–63.Google Scholar

33. Monetary Times, August 17, 1883, p. 179. See also Canadian Manufacturer, August 24, 1883, pp. 607–8, where the Knights are referred to as “socialist and revolutionary” and a “dangerous and most unsatisfactory organization.”

34. Gordon, William Seton, “Strikes and Strikers in Their Legal Aspect,” Canadian Law Times 3 (1883).Google Scholar Gordon was born in New York and received a B.A. from Columbia University before coming to Canada. He later returned to New York where he continued to practice law. Morgan, Henry James, ed., Canadian Men and Women of the Time, 2d ed. (Toronto, 1912), 459.Google Scholar

35. Springhead was not cited at all in Kerr, William, A Treatise on the Law and Practice of Injunctions, 2d ed. (London, 1878).Google Scholar The first mention of an injunction against a union appeared in the third edition (London, 1888), 564–65 in relation to actions brought by members. It was only in the fourth edition (London, 1903) that the heading “trade union” appeared in the index and a new section was added to deal with injunctions to enjoin nuisances connected to trade disputes (241–44). In Joyce, William, The Law and Practice of Injunctions in Equity (London, 1872)Google Scholar, Springhead was cited in a section on injunctions in relation to criminal activity. There was no direct discussion of injunctions against unions in any context.

36. In England, local societies came together to create the National Association of Operative Plasterers in England in 1860. See Hamish Fraser, W., Trade Unions and Society (London, 1974), 19.Google Scholar An unsuccessful attempt was made to establish a branch of the National Association in Halifax in 1867. In Toronto, they were involved in the United Amicable Trade and Benefit Society of Journeymen Bricklayers, Plasterers, and Masons. Forsey, Eugene, Trade Unions in Canada 1812–1902 (Toronto, 1982), 19, 57, 85, 93–94.Google Scholar

37. According to the Monetary Times, April 21, 1882, p. 1294, “The competition between employers to get work is much greater than the competition to get workers.”

38. The account is derived from Hynes et al. v. Fisher et al. (1883), 4 O.R. 60; Globe, October 18, 1883, p. 6, col. 1; Mail, October 18, 1883, p. 8, col. 4.

39. Globe, October 19, 1883, p. 6, col. 3; ibid., October 20, 1883, p. 2, col. 4; ibid., October 23, 1883, p. 6, col. 5; ibid., October 24, 1883, p. 2, col. 4; ibid., October 24, 1883, p. 6, col. 1; ibid., October 25, 1883, p. 6, col. 1; ibid., October 26, 1883, p. 2, col. 3; ibid., November 3, 1883, p. 3, cols. 1–2; TTLC, Minutes, October 19 and November 2, 1883.

40. Globe, October 22, 1883, p. 8, col. 4; ibid., October 23, 1883, p. 6, col. 5; ibid., October 26, 1883, p. 2, col. 3.

41. Ibid., October 29, 1883, p. 2, cols. 1–2 and October 30, p. 6, col. 1 (two plasterers from Quebec); ibid., November 1, 1883, p. 6, col. 2 and November 2, 1883, p. 6, col. 4 (three plasterers from Cobourg and Walkerton); ibid., November 6, 1883, p. 6, col. 4 and November 7, 1883, p. 7, cols. 1–2 (plasterer from Guelph); ibid., November 9, 1883, p. 6, col. 4; Mail, November 6, 1883, p. 8, col. 4 (plasterer from Gait); ibid., November 7, 1883, p. 8, col. 5 (unsuccessful attempt to intercept two plasterers from Lindsay).

42. Globe, November 8, 1883, p. 6, col. 3; Hynes v. Fisher, 61–62.

43. Ibid., November 6, 1883, p. 6, cols. 3–4; ibid., November 8, 1883, p. 6, col. 3; Mail, November 6, 1883, p. 8, col. 4; ibid., November 7, 1883, p. 8, col. 5.

44. Hynes v. Fisher, 61–63; Globe, November 10, 1883, p. 14, col. 1.

45. Palladium of Labor, November 10, 1883, p. 2, cols. 4–5.

46. Presumably, this comment refers to the success of Toronto workers in defeating J. J. Withrow, a Liberal candidate in the 1883 elections for Toronto mayor. Withrow was a master carpenter whose activities during the 1882 strike had antagonized labor. Kealey, Toronto Workers, 224–25; Globe, January 1, 1883, p. 6, cols. 1–3. On the same page that this fictional account appeared, an editorial appeared calling on workers to blacklist the bosses of the plastering trade and to use the ballot to punish them, as they had done to Withrow. Palladium of Labor, November 10, 1883, p. 2, col. 2.

47. Hynes v. Fisher (McCord and Jenkins Case) (1883), 4 O.R. 78.

48. There was also a report that the union was going to bring an conspiracy action against the MPA. Mail, November 13, 1883, p. 8, col. 2 and November 14, 1883, p. 8, col. 2. There is no record that such an action was commenced.

49. Hynes v. Fisher (McCord and Jenkins); Mail, November 17, 1883, p. 12, col. 2; ibid., November 21, 1883, p. 8, col. 1; Globe, November 21, 1883, p. 6, col. 2.

50. Mail, November 20, 1883, p. 8, col. 2. Also see Globe, November 20, 1883, p. 6, col. 2 for an account of a successful interception of a worker from Stratford brought in by Mr. Hynes.

51. The Mail's report of this incident concluded with the observation that, “This hostile action on the part of the masters will no doubt create a bitter feeling between the contesting parties and make it all the harder to mend matters when the time comes for a settlement,” November 22, 1883, p. 8, col. 2. Earlier, the OPA sought and obtained the support of the TTLC. TTLC, Minutes, November 16, 1883; Globe, November 17, 1883, p. 14, col. 5.

52. Globe, November 23, 1883, p. 6, col. 6.

53. One of the objections of trade unionists to the CLAA passed in 1872 was that it exposed workers to trial by police court magistrates who were perceived to be anti-union. The 1876 reforms gave workers the right to elect trial by jury in a higher court. S.C. 1876, c. 37, s. 3.

54. Mail, November 24, 1883, p. 12, cols. 2–3. The information and notes of the testimony before the police magistrate can be found in Criminal Assize Indictments, York County, Case Files, Ontario Archives (OA), RG 22, Series 392, Box 228, R. v. Leach and McCord.

55. Globe, November 23, 1883, p. 6, col. 6; ibid., November 27, 1883, p. 6, col. 2; ibid., November 29, 1883, p. 6, col. 1; Mail, November 30, 1883, p. 8, col. 2.

56. Hynes v. Fisher, 70.

57. Ibid., 73 (my emphasis).

58. Ibid., 74.

59. Ibid., 74.

60. Ibid., 75–76.

61. Hynes v. Fisher (McCord and Jenkins), 93.

62. Mail, December 8, 1883, p. 12, col. 6; ibid., December 11, p. 8, col. 2; December 12, p. 8, col. 1; R. v. Leach and McCord.

63. TTLC, Minutes, December 7, 1883; Globe, December 10, 1883, p. 6, cols. 1–2. There was some resistance to making this grant and, as an alternative, it was suggested that the TTLC should appoint a committee to solicit unions in the city to pay the plasterers' expenses.

64. Globe, December 17, 1883, p. 6, col. 1; ibid., December 19, 1883, p. 6, col. 2; ibid., December 20, 1883, p. 6, col. 1; ibid., December 27, 1883, p. 6, col. 1; TTLC, Minutes, December 21, 1883.

65. Mail, January 28, 1883, p. 5, col. 5; ibid., January 29, p. 8, col. 1; Criminal Assize Minutes, York Assizes, Winter 1884, OA, RG 22, (unprocessed records), pp. 347, 357–58, 360.

66. The MPA never pursued the damage action, suggesting that its real object was to obtain the injunction.

67. TTLC, Minutes, March 21, 1884.

68. Fusion of law and equity had been achieved in Ontario by the Judicature Act, S.O. 1881, c. 5. This overcame many of the remedial problems caused by divided jurisdiction. On these developments, see Romney, Paul, Mr. Attorney (Toronto, 1986), 286–90Google Scholar; Banks, Margaret A., “The Evolution of the Ontario Courts 1788–1981” in Essays in the History of Canadian Law, vol. 2, ed. Flaherty, David (Toronto, 1983), 518–25.Google Scholar

69. Canadian Manufacturer, December 14, 1883, p. 918.

70. The only other nineteenth-century injunction identified to date was obtained by the publisher of the Toronto World in 1888 to restrain publication of a boycott notice by the Toronto Typographical Union, No. 91. It attracted almost no attention and, like the Hynes case, was not emulated by other employers facing similar difficulties. See Table 1.

71. See Forbath, Law and the Shaping, 66–79; 193–98.

72. Brecher, Jeremy, Strike! (Boston, 1972), 31–50Google Scholar; Avrich, Paul, The Haymarket Tragedy (Princeton, 1984) (United States)Google Scholar; Palmer, “Labour Protest,” 73–75 (Ontario).

73. Globe, April 8, 1882, p. 10, col. 3. For accounts of the event, see Mail, April 6, 1882, p. 8, cols. 4–5; ibid., April 7, 1882, p. 8, col. 4; ibid., April 8, 1882, p. 2, col. 4; ibid., April 10, 1882, p. 2, cols. 1–2; ibid., April 12, 1882, p. 8, col. 3.

74. Toronto Board of Police Commissioners, Minutes, February 10, 1886. For a general account of the strike, see Kealey, Toronto Workers, 196–99.

75. News, February 9, 1886, p. 2, col. 2.

76. See Morton, Desmond, Mayor Howland (Toronto, 1973), 44–56Google Scholar; Kealey, Toronto Workers, 200–209; David Frank, “Trouble in Toronto: The Street Railway Lockout and Strike, 1886” (unpublished).

77. The account of the arrest is derived from the testimony of Draper and Franklin given before Police Magistrate Denison on March 19 and 22, 1883. York Criminal Assize Files, OA, RG 22, Series 392, Box 237, R. v. Maloney.

78. News, March 11, 1886, p. 4, col. 2; World, March 12, 1886, p. 5, col. 5.

79. Mail, March 11, 1886, p. 2, col. 1.

80. World, March 11, 1886, p. 1, col. 1; News, March 11, 1886, p. 4, cols. 2–4.

81. World, March 12, 1886, p. 5, col. 4.

82. Denison, Colonel George T., Recollections of a Police Magistrate (Toronto, 1920), 9–13.Google Scholar Denison was also a racist. See chapter 8, entitled “The Negro Element.” Also see Gene Howard Homel, “Denison's Law: Criminal Justice and the Police Court in Toronto, 1877–1921,” Ontario History 73 (1981): 176; Gagan, David, The Denison Family of Toronto (Toronto, 1972), 44–92.Google Scholar Denison's informal approach was not uncommon among the lower rungs of the judiciary and reflected an older model of urban justice in which maintaining public order took priority over the determination of individual rights. Girard, Philip, “The Rise and Fall of Urban Justice in Halifax, 1815–1886,” Nova Scotia Historical Review 8 (2) (1988).Google Scholar

83. News, March 11, 1886, p. 4, col. 4.

84. Toronto Board of Police Commissioners, Minutes, March 11, 1886.

85. Globe, March 12, 1886, p. 8, col. 3.

86. World, March 12, 1886, p. 2, col. 1.

87. It is unclear what role, if any, Denison played in the unit's creation, but it is noteworthy that he was an army officer and the author of a book on cavalry tactics. See Gagan, Denison Family, 45–52.

88. Toronto Board of Police Commissioners, Minutes, March 12, 1886.

89. News, March 13, 1886, p. 3, col. 4. Judge McDougall also informed the press that he was determined to demonstrate that mob rule would not be tolerated. World, March, 13, 1886, p. 1, col. 4.

90. Mail March 15, 1886, p. 8, col. 2.

91. Globe, March 16, 1886, p. 8, col. 4.

92. R. v. Maloney; News, March 22, 1886, p. 4, col. 2.

93. World, March 16, 1886, p. 1, col. 8. For a more abbreviated and slightly different account of Cameron's comments see Napanee Standard, March 19, 1886, p. 3, col. 3.

94. Globe, March 23, 1886, p. 2, col. 4.

95. News, April 21, 1886, p. 4, col. 4.

96. R. v. Maloney; Globe, April 22, 1886, p. 8, col. 1.

97. On the practice and content of grand jury addresses in Ontario from 1830–60, see Brode, Patrick, “Grand Jury Addresses of the Early Canadian Judges in an Age of Reform,” Law Society Gazette 23 (1989).Google Scholar

98. News, March 18, 1886, p. 2, col. 2.

99. As cited in News, March 25, 1886, p. 2, col. 1.

100. Ibid.

101. For example, James R. Brown, chair of the Legislative Committee of the Oshawa Trades and Labour Council—and future factory inspector—critically reported upon Cameron's charge to the grand jury at Whitby. See News, May 15, 1886, p. 6, col. 3.

102. Canadian Law Times 6 (1886): 284–85.

103. For example, see Hamilton Spectator, March 6, 1886, p. 2, col. 1; ibid., March 12, 1886, p. 2, col. 1; World, March 12, 1886, p. 2, col. 1; Monetary Times, March 19, 1886, p. 1068. Canadian Manufacturer, March 19, 1886, p. 163, expressed particular foreboding about the involvement of the Knights because they were trying “to bring about a general combination of the trade. What it all is to end in no one can foresee.”

104. “Nothing is won by violence; be good-natured and steady, and the victory is with those who have right on their side.” News, March 12, 1886, cited in Frank, “Trouble,” 35.

105. Earlier, Grip, April 3, 1886, p. 3, endorsed Powderly's call to the Knights not to strike without proper authorization. Referring to his threat to resign unless the practice stopped, the Grip quipped, “If Powderly goes off, it will probably blow up the whole concern.”

106. The Police Board found no fault with the conduct of the men. Indeed, they authorized Chief Draper to grant members of the force two days leave each in recognition of their special service. The Board also endorsed Chief Draper's tactics. Toronto Board of Police Commissioners, Minutes, March 16, 1886; Globe, March 18, 1886, p. 8, col. 1; TTLC, Minutes, March 19, 1886.

107. Thompson began his career as a police court reporter for the Telegram and worked as reporter for the News during the TSR strike. See Russell Hann, “Brainworkers and the Knights of Labor: E. E. Sheppard, Phillips Thompson, and the Toronto News, 1883–1887,” in Essays in Canadian Working Class History, ed. Kealey, Gregory S. and Warrian, Peter (Toronto, 1976), 35Google Scholar; Atherton, Jay, “Introduction” in Thompson, Phillips, The Politics of Labor (1887; reprint Toronto, 1975)Google Scholar; Cook, Ramsay, The Regenerators (Toronto, 1985), 152–73.Google Scholar

108. Palladium of Labor, April 3, 1886, p. 1, cols. 1–3.

109. Ibid., April 17, 1886, p. I, col. 1–4.

110. Canadian Labor Reformer, July 31, 1886, p. 6. Later, in the context of a debate over private police, the paper complained that the Board of Police Commissioners was not accountable to the people because only one of its three members was elected. Ibid., October 30, 1886, p. 3–4.

111. Ibid., July 31, 1886, p. 10. In another article discussing a recent pronouncement by an American judge on the illegality of boycotting, the author, Victor Drury, a prominent member of the Knights in New York, asserted that some Canadian judges held similar views. He asked rhetorically, “Are judges impartial administrators of equal and impartial justice? or are they officials appointed to maintain class supremacy?” Ibid., May 29, 1886, p. 6.

112. Globe, March 12, 1886, p. 8, col. 4.

113. David Frank, “Trouble in Toronto,” 48.

114. World, May 10, 1886, p. 1, col. 1.

115. At least nineteen people were arrested in the early days of the strike. Fines ranged from one to thirty dollars. See, World, May 13, 1886, p. 1, col. 5; ibid., May 14, 1886, p. 1, col. 3; ibid., May 15, 1886, p. 1, col. 1; News, May 10, 1886, p. 4, col. 4; ibid., June 3, 1886, p. 4, col. 4.

116. D. J. O'Donoghue, a leader of the Knights, denounced Denison and the Police Commission for their actions at a public meeting in St. Lawrence Hall, World, May 20, 1886, p. 1, col. 4; the TTLC condemned the excessive fines meted out by Denison and complained to the Attorney General, TTLC, Minutes, May 21, 1886; the Canadian Labor Reformer, May 29, 1886, p. 9, parodied Denison by reporting an apocryphal case in which a horse that stopped on a street car line was threatened with arrest and told it would be fined twenty to thirty dollars for obstruction. In a more serious vein, the paper cautioned, “[l]awlessness never did good to any cause, and the gamins and others who threw stones at the cars couldn't well employ themselves in a way more harmful to the cause of the men.”

117. Mail, May 26, 1886, p. 8, col. 3; ibid., May 27, 1886, p. 8, col. 2; ibid., May 28, 1886, p. 8, col. 1. On the failure of the strike, see Kealey, Toronto Workers, 208–10 and Kealey, Gregory S. and Palmer, Bryan D., Dreaming of What Might Be (Toronto, 1987), 122–26.Google Scholar

118. The most thorough account of these events is Averich, Haymarket Tragedy, chap. 14. Recognition of the impact of Haymarket on local events is seen in the News, May 10, 1886, p. 2, col. 1.

119. Mail, May 12, 1886, p. 8, col. 3.

120. For the Irish background and influence, see Gordon, Michael A., “The Labor Boycott in New York City, 1880–1886,” Labor History 16 (1975)CrossRefGoogle Scholar and Laidler, Harry W., Boycotts and the Labor Struggle (1913; reprint New York, 1968), 23–26.Google Scholar

121. Kealey and Palmer, Dreaming, 313–16.

122. Confrontations in Quebec City between union and non-union dock workers in 1887 led to the hasty enactment of criminal law making it an offense to interfere with persons working on a ship or in connection with loading or unloading it (S.C. 1887, c. 49). The law was vigorously opposed by the unions and their legislative supporters, but without success. For an instructive look at the attitudes of the politicians, see Canada, House of Commons, Debates, June 17, 1887, p. 1075; ibid., June 20, 1887, pp. 1153–55; ibid., June 22, 1887, pp. 1229–33.

123. 123. Kealey and Palmer, Dreaming, 330–39.

124. On the importance of these solidarities, see Zieren, Gregory R., “The Labor Boycott and Class Consciousness in Toledo, Ohio,” in Life and Labor: Dimensions of American Working-Class History, ed. Stephenson, Charles and Asher, Robert (Albany, 1986), 131.Google Scholar On the law's approach to third-party interference, see Orren, Belated Feudalism, esp. 135–144.

125. Kealey, Toronto Workers, 327 and Hynes v. Fisher, 75. For further examples, see Canada Investigates Industrialism, ed. Gregory S. Kealey (Toronto, 1973), 134, 188–90.

126. Palladium of Labor, September 6, 1884, p. 4, cols. 2–3 (“It all depends on whose ox is being gored.”). On employer combinations, see Bliss, Michael, A Living Profit (Toronto, 1974)Google Scholar, chap. 2 and “Another Anti-Trust Tradition: Canadian Anti-Combines Policy, 1889–1910,” Business History Review 57 (1973); Smandych, Russell, “The Origins of Canadian Anti-Combines Legislation, 1890–1910,” in The Social Basis of Law, 2d ed., ed. Brickey, Stephen and Comack, Elizabeth (Halifax, 1991), 35.Google Scholar

127. See Mail, April 4, 1882, p. 8, col. 4 (TTU); ibid., April 7, 1882, p. 2, col. 2 (TTLC); ibid., April 10, 1882, p. 2, col. 2 (boilermakers); ibid., April 12, 1882, p. 8, cols. 3–4 (coopers, seamen, Journeymen tinsmiths and laborers); ibid., April 13, 1882, p. 8, col. 4 (bricklayers and stonemasons); ibid., April 17, 1882, p. 8, cols. 4–5 (painters); ibid., April 21, 1882, p. 8, cols. 4–5 (cigarmakers); TTLC, Minutes, May 19, 1882. On printers' boycotts generally, see Kealey, Toronto Workers, 91–95; Zerker, Sally F., The Rise and Fall of the Toronto Typographical Union 1832–1972: A case study of foreign domination (Toronto, 1982), 95.CrossRefGoogle Scholar

128. See Kealey, Toronto Workers, 91–92; Palladium of Labor, June 21, 1884, p. 8, col. 1.

129. Globe, July 17, 1888, p. 1, col. 5; ibid., July 18, 1888, p. 3, col. 4; ibid., July 19, 1888, p. 8, col. 4; ibid., July 20, 1888, p. 8, col. 2; ibid., July 26, 1888, p. 8, col. 2; ibid., August 2, 1888, p. 8, col. 2; ibid., August 8, 1888, p. 8, col. 1; ibid., August 15, 1888, p. 8, col. 2; World, July 19, 1888, p. 2, col. 1; ibid., July 24, 1888, p. 2, col. 1; ibid., July 26, 1888, p. 1, col. 7, p. 2 col. 1; ibid., July 27, 1888, p. 2, col. 1; ibid., August 15, 1888, p. 1, col. 4; TTLC, Minutes, August 17, 1888; Kealey, Toronto Workers, 95.

130. Laidler, Boycotts, 60–62.

131. Schrader v. Lillis (1886), 10 O.R. 358. Also see, Hamilton Spectator, October 6, 1885, p. 4, cols. 1–2; Ontario, Legislative Assembly, “Annual Report of the Bureau of Industries 1885” in Sessional Papers (1886) at cxxxiv.

132. Kealey, Toronto Workers, 92–93.

133. Palladium of Labor, November 10, 1883, p. 2, col. 1.

134. For example, in the context of the 1887 Dominion elections, Canadian Manufacturer, February 18, 1887, pp. 99–100, published a letter denying the need for, and pointing out the danger of, class representation. For an earlier expression of the same sentiment, see Monetary Times, August 11, 1882, p. 151.

135. Monetary Times, May 5, 1882, p. 1360.

136. Ibid., December 18, 1885, p. 685.

137. Ibid., April 30, 1886, p. 1239.

138. Canadian Manufacturer, May 21, 1886, p. 289.

139. See Gordon, “Labor Boycott,” 218–29; Laidler, Boycotts, 82–85.

140. Hurvitz, “American Labor Law,” 322. For an extended discussion of the legal reasoning, see ibid, at 309–24.

141. . People v. Wilzig, 4 N.Y. Crim. 403 (1886) and People v. Kostka, 4 N.Y. Crim. 429 (1886).

142. . Mail, May 21, 1886, p. 4, cols. 3–4. For an earlier comment, see Canadian Manufacturer, April 16, 1886, p. 228.

143. Palladium of Labor, July 10, 1886, p. 4, col. 1; ibid., July 24, 1886, p. 3, col. 2.

144. Ibid., July 31, 1886, p. 4, col. 1.

145. Canadian Manufacturer, August 6, 1886, p. 217.

146. State v. Glidden, 55 Conn. 46 (1887); State v. Stewart, 59 Vt. 273 (1887); Crump v. Commonwealth, 84 Va. 927 (1888); Hurvitz, “American Labor Law,” 324–28; Ernst, “Free Labor, the Consumer Interest.”

147. For example, see Monetary Times, March 25, 1887, p. 1128 (quoting Bradstreets, “The broad ground upon which the courts proceed in those cases is that associations formed with the design of interfering by overt acts with the freedom of employers in proper control and management of their business are illegal”). Also, see Canadian Law Times 8 (1888): 122, 279 (noting American law Journal articles on the subject); Canada Law Journal 24 (1888): 491 (reporting decision in Crump).

148. Canadian Manufacturer, May 6, 1887, p. 271.

149. (1887), 14 O.R. 119.

150. S.O. 1886, c. 28.

151. Reported in Hamilton Spectator, April 28, 1887, p. 4, col. 1 and reprinted in Canadian Manufacturer as part of its “National Disgrace” editorial. In the particular case, Judge Cameron non-suited the injured worker on the theory that the worker had voluntarily assumed the risk of injury. On appeal, the non-suit was set aside on the theory that mere knowledge of the risk did not give rise to a legal presumption of the risk being voluntarily assumed. That was a question of fact for the Jury to decide. For a discussion of the background to, and importance of, this case, see Tucker, , “The Law of Employers' Liability in Ontario 1861–1900,” Osgoode Hall Law. Journal 22 (1984).Google Scholar It is notable that, prior to becoming a Judge, on numerous occasions Cameron defended railway companies being sued by their injured workers. As a Judge, he always ruled in favor of employer defendants. See Tucker, , Administering Danger in the Workplace (Toronto, 1990), 56–57.Google Scholar

152. Canadian Labor Reformer, April 23, 1887, p. 5.

153. Ibid., April 30, 1887, pp. 5, 7.

154. Ibid., May 7, 1887, p. 6.

155. Hamilton Spectator, August 24, 1887, p. 4, col. 2; ibid., August 27, 1887, p. 4, col. 1; ibid., September 1, 1887, p. 4, col. 2.

156. Ibid., September 6, 1887, p. 1, cols. 1–2.

157. Canadian Manufacturer, September 2, 1887, p. 149; ibid., p. 152 for two further items attacking trade unions.

158. Ibid., September 16, 1887, p. 184.

159. Ibid., October 7, 1887, p. 221. The case under discussion was People ex rel. Gill v. Smith, 5 N.Y. Crim. 509 (1887).

160. Hamilton Spectator, November 4, 1887, p. 2, col. 4.

161. Canadian Manufacturer, November 18, 1887, p. 330.

162. Ibid., December 2, 1887, p. 371; ibid., February 3, 1888, pp. 77–78, 82; ibid., March 2, 1888, pp. 154, 157; ibid., March 16, 1888, p. 184.

163. Ibid., January 20, 1888, p. 46; ibid., April 20, 1888, pp. 260–61. Two months later, the Canadian Manufacturer quietly reported that Mrs. Farr's husband was, and had been for years, a member in good standing of the bricklayers' union. Ibid., June 15, 1888, p. 409.

164. Hamilton Spectator, April 26, 1888, p. 4, col. 3; ibid., April 28, 1888, p. 4, col. 3; and Palmer, Bryan, A Culture in Conflict (Montreal, 1979), 86–87.Google Scholar

165. R. v. Gibson et al. (1889), 16 O.R. 705.

166. Hamilton Spectator, April 28, 1888, p. 4, col. 2; ibid., April 30, 1888, p. 4, cols. 1–2; Canadian Manufacturer, May 4, 1888, p. 297. The presence of a Q.C. representing Buscombe's interests at the police court proceeding, in addition to the involvement of the local crown prosecutor, Mr. Crerar, suggests the possibility that Canadian Manufacturer or sympathetic employers may have been directly involved in the prosecution, but this is speculative.

167. Hamilton Spectator, June 13, 1888, p. 4, col. 1; ibid., June 15, 1888, p. 4, col. 2. It should be recalled that the TUA of 1872 provided that members of unions could not be convicted of criminal conspiracy merely because the purpose of their combination was in restraint of trade. The 1876 criminal law statute extended that immunity by precluding prosecution for an act committed for the purpose the trade union, unless the act was an offense indictable by statute or punishable under the other provisions of the 1876 statute. (S.C. 1872, c. 30, s. 2; S.C. 1876, c. 37, s. 4.) In 1886, the federal statute books were revised and the 1876 provision on prosecution for criminal conspiracy was re-enacted, in a slightly modified form so that, at the time of the Gibson prosecution, section 13(2) provided: “No prosecution shall be maintainable against any person for conspiracy to do any act, or to cause any act to be done for the purposes of a trade combination, unless such act is an offence punishable by statute.” R.S.C. 1886, c. 173. Lynch-Staunton's argument was that the boycott against Buscombe was an act for the purposes of a trade combination and that there was no statute under which boycotting was an offense.

168. Hamilton Spectator, June 21, 1888, p. 4, cols. 1–2.

169. Globe, June 21, 1888, p. 1, col. 6.

170. Piggott was known to be a rabid opponent of craft union restrictions. Palmer, A Culture in Conflict, 76, 87.

171. Hamilton Spectator, June 21, 1888, p. 4, cols. 1–2.

172. Ibid., June 21, 1888, p. 4, col. 1.

173. Recall that Osier represented the union in the litigation arising out of the plasterers' strike/lockout. He was also singled out for special attention by the Canadian Labor Reformer, June 26, 1886, p. 6, in an article that criticized lawyers in general and Osier in particular as “inquisitorial bullies.” The immediate impetus for this was a case in which Osier cross-examined a female witness so ruthlessly that she reportedly fell into a violent hysterical fit.

173. Recall that Osier represented the union in the litigation arising out of the plasterers' strike/lockout. He was also singled out for special attention by the Canadian Labor Reformer, June 26, 1886, p. 6, in an article that criticized lawyers in general and Osier in particular as “inquisitorial bullies.” The immediate impetus for this was a case in which Osier cross-examined a female witness so ruthlessly that she reportedly fell into a violent hysterical fit.

174. R. v. Gibson, 708–9.

175. Ibid., 713. The two English cases were R. v. Parnell (1881), 14 Cox C.C. 508 (setting out the parameters of criminal conspiracy) and Mogul S.S. Co. v. McGregor (1888), 21 Q.B.D. 544 (a civil conspiracy case still winding its way through the appellate system. At this stage, the court had held that a combination of traders to keep a monopoly for themselves was not unlawful so long as its purpose was to benefit its members and not to ruin competitors).

176. R. v. Gibson, 713–15.

177. Only the Hamilton Spectator commented. It took the broadest view of the decision, saying that it ruled that all boycotting was illegal in Canada. This was clearly wrong. Other papers, including the Globe, Mail, and Canadian Manufacturer, which reported the decision, provided no interpretive commentary. See Hamilton Spectator, February 5, 1889, p. 4, col. 5; ibid., February 5, 1889, p. 4, col. 4; Globe, February 5, 1889, p. 6, cols. 1–2; Mail, February 5, 1889, p. 3, cols. 1–2; Canadian Manufacturer, March 1, 1889, pp. 144–45; ibid., March 15, 1889, p. 179.

178. Mail, March 16, 1889, p. 10, col. 5.

179. Hamilton Spectator, June 15, 1889, p. 4, cols. 1–2; Canadian Manufacturer, June 21, 1889, pp. 392–93, reprinted the sentencing proceedings without comment.

180. See Kealey and Palmer, Dreaming, 248–76; Kealey, Toronto Workers, 267–68; Ostry, Bernard, “Conservatives, Liberals, and Labour in the 1880's,” Canadian Journal of Economics and Political Science 27 (1961).CrossRefGoogle Scholar

181. TLC, Proceedings (1888): 19, 23.

182. House of Commons, Debates, March 11, 1889, p. 524.

183. Mail, March 16, 1889, p. 2, col. 6; Mail, September 5, 1889, p. 4, col. 7; ibid., p. 5, cols. 1–3. Wilson had worked closely with the Knights during the previous session. Report of the Legislative Committee of the Knights of Labor (1888).

184. This committee had been created one year earlier. Its lobbyist in the first year was Alf Jury and he worked closely with the TLC and the TTLC. However, for the 1889 parliamentary session, A. W. Wright, a leader of the Knights of Labor and a Conservative Party supporter, outmaneuvered O'Donoghue and convinced Powderly to appoint Elliot. Kealey and Palmer, Dreaming, 256–64.

185. Report of the Legislative Committee of the Knights of Labor (1889), 11–12.

186. Mail, September 5, 1889, p. 4, col. 7.

187. Alf Jury publicly criticized Elliot in, Globe, April 26, 1889, p. 12, col. 3.

188. TLC, Proceedings (1889). The Congress also elected David Gibson to its Ontario Executive Committee.

189. Canada, House of Commons, Debates, January 16, 1890, p. 3; ibid., January 17, 1890, p. 7.

190. Bill 65, An Act further to amend the Criminal Law, 4th Sess., 6th Parl., 1890, s. 18; and House of Commons, Debates, February 7, 1890, p. 342.

191. House of Commons, Debates, April 10, 1890, pp. 3163–64.

192. Ibid., April 15, 1890, pp. 3372–79; ibid., April 16, 1890, pp. 3459–60; S.C. 1890, c. 53, s. 19.

193. Report of the Canadian Legislative Committee of the Knights of Labor (1890).

194. Mail, April 19, 1890, p. 12, cols. 6–7. The depth of this confusion or partisanship was reflected in the lobbying of the TTLC around amendments to the draft criminal code produced by the federal government in 1891. See F. C. Cribben, secretary TTLC, to Sir John Thompson, minister of Justice, June 4, 1892, NAC RG 13 Al 341/1894/ 14. Lynch-Staunton seemed to have a better grasp of the real weaknesses of the 1890 amendment and sought to clarify that concerted refusals to work would not be criminal conspiracies, regardless of their purpose. See George Lynch-Staunton to the deputy minister of Justice, May 13, 1891, NAC RG 13 Al 492/1891. My thanks to Professor Desmond Brown for bringing these documents to my attention.

195. Canadian Manufacturer, May 2, 1890, pp. 292–93.

196. This occurred in the Windsor tailors' strike in 1891. The report is unclear as to the charges. Labor Advocate, September 18, 1891, p. 332.

197. For example, see Nelson, Bruce C., Beyond the Martyrs (New Brunswick, 1988), 185Google Scholar (Chicago, 1885); Zieren, “The Labor Boycott,” 142–43; and Henry, Sarah M., “The Strikers and their Sympathizers: Brooklyn in the Trolley Strike of 1895,” Labor History 32 (1991).CrossRefGoogle Scholar

198. Morton, D., “Aid to the Civil Power: The Canadian Militia in Support of Social Order, 1867–1914,” Canadian Historical Review 51 (1970)CrossRefGoogle Scholar; Pariseau, J. J. B., Disorders, Strikes and Disasters: Military Aid to the Civil Power in Canada, 1867–1933 (Ottawa, 1973), 52–53.Google Scholar There was at least one occasion when Toronto police were sent to Algoma, at the request of the provincial government, to help quell riots that broke out when shantymen were not paid for work performed the previous winter. Mail, May 18, 1889, p. 12, col. 2.

199. See Hurvitz, “American Labor Law,” 318–28; Gordon, “Labor Boycott,” 218–29; Forbath, Law and the Shaping, 79–97.

200. See Hurvitz, “American Labor Law,” 328–44; Forbath, Law and the Shaping, 66–90.

201. For a partial account of these violent confrontations, see J. Brecher, Strike!, 25–52. Also see, Hairing, Sidney L., Policing a Class Society (New Brunswick, 1983), esp. chap. 6.Google Scholar

201. The list is admittedly incomplete. I examined all strikes in Toronto, Hamilton, and London, the three largest strike centers, which account for 176 strikes, or nearly seventy percent of the total. Other sources examined include the labor press, proceedings of labor bodies, the business press, and the Ontario Bureau of Industries' Annual Reports. While it is possible I have missed some strikes with judicial or police involvement, it is unlikely further research will significantly alter the picture. This is because strikes with such involvement attracted publicity and generated paper trails in the press and in the courts. Further references for the strikes identified in the table but not discussed in the text are in the author's possession.

202. Morn, Frank, “The Eye That Never Sleeps” (Bloomington, 1982), chap. 5.Google Scholar

203. See, e.g., Forbath, Law and the Shaping and Hattam, Labor Visions.

204. Thompson, E. P., Whigs and Hunters (New York, 1975), 258–69.Google Scholar

205. Globe, November 8, 1883, p. 6, col. 3.

206. Palladium of Labor, December 6, 1884, p. 1, col. 1. The editorial notes that, in the United States, “Behind the law-making power stands the cast-iron constitution and the Supreme Court.” Canada, however, was seen to be no better off. “Our Partyism is as much dominated by monopoly as theirs…And over and above all we have the supremacy of British interests….”

207. Report of the Canadian Legislative Committee of the Knights of Labor (1889), 11.

208. For example, see Craven, Paul and Traves, Tom, “Dimensions of Paternalism: Discipline and Culture in Canadian Railway Operations in the 1850s,” in On the Job: Confronting the Labour Process in Canada, ed. Heron, Craig and Storey, Robert (Kingston, 1986), 47Google Scholar; Palmer, A Culture in Conflict, chap. 4.

209. Fox, Alan, History and Heritage (London, 1985), 124–73.Google Scholar

210. Ibid., 164.

211. For similar assessments of the role of trade unions in British society during this Juncture, see Fraser, Trade Unions; Brown, Henry Phelps, The Origins of Trade Union Power (Oxford, 1986), 23–31Google Scholar; Price, Richard, Labour in British Society (London, 1986), 49–92.Google Scholar

212. Hobsbawm, E. J., Labouring Men (New York, 1967), 406.Google Scholar

213. Commercial litigation was also infrequent. H. W. Arthurs, ‘Without the Law’ (Toronto, 1985), 56–62.

214. Blake's campaign speeches to workers in the 1887 Dominion elections harped on these themes. Indeed, he went so far as to instruct Aemelius Irving to research the question of who had actually ended the prosecutions against the Toronto printers in 1872. When Irving confirmed that Mowat, the Liberal premier, was responsible, Blake used this to discredit Macdonald. See Edward Blake Papers, OA, MS 20(1), Series B-2, Legal Correspondence, letter from Blake to Irving, December 17, 1886; MU 154, Series B, Box 17, Env. 3, letter from Irving to Blake, December 18, 1886.

215. Of course, the labor market itself is legally constructed and the way law defines the limits to permissible behavior and advantage-taking influences to the balance of power between workers and employers. These limits were socially contested, but employers were content with the kinds of restrictions contained in the 1876 Act. For an excellent discussion of these questions, see Steinfeld, Robert J., “The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labour,” in Tomlins and King, Labor Law in America, 20.Google Scholar

216. Kealey and Palmer, Dreaming, 278.

217. In 1887 legislation was passed to restrict the activities of shipping and dock workers. This was a response to the activities of a group of semi- or unskilled dock workers that had engaged in mass actions during a strike in Quebec. S.C. 1887, c. 49; House of Commons, Debates, June 17, 1887, p. 1075; ibid., June 20, 1887, pp. 1152–55; ibid., June 22, 1887, pp. 1229–33. A draft penal code, prepared in 1884, also contained some harsh provisions aimed at curbing labor riots and turbulent strikes, but the government never acted upon it. Globe, August 30, 1884, p. 6, cols. 1–2; Palladium of Labor, September 6, 1884, p. 1, cols. 1–3; and Brown, Desmond H., The Genesis of the Canadian Criminal Code (Toronto, 1989), 109–11.Google Scholar

218. Laslett, J. H. M., “Haymarket, Henry George, and the Labor Upsurge in Britain and America during the Late 1880s,” International Labour and Working Class History 29 (1986).Google Scholar

219. Bagwell, Philip S. and Mingay, G. E., Britain and America 1850–1939: A Study of Economic Change (London, 1970), 170–75.Google Scholar

220. Nelson, Bruce C., Beyond the Martyrs, 11, 180Google Scholar; Kealey, , Toronto Workers, 32, 196.Google Scholar

221. Gordon, David M. et al., Segmented Work, Divided Workers (Cambridge, 1982), 113–27.Google Scholar

222. Nelson, Beyond the Martyrs.