§ 4. Acts producing fear of violence. It is generally recognized that within the scope of illegal acts must be included not only acts of direct violence, but acts producing a fear of violence, to person or property.5 The influence of such acts in disturbing business and social relations is so obvious that little need be said by way of justification of thus extending the scope of illegal acts. But if we formulate our doctrine thus: that acts producing a reasonable fear of violence to person or property are illegal, we find so general a rule to be frequently of great difficulty of application, in view of the infinite variety of circumstances of time and place to which it is capable of being applied. The acts of a child might have no influence in pro such other person has a legal right In Southern Ry. Co. v. Machinists' Local Union, 111 Fed. 49 (C. C. Tenn., 1901), where an injunction was allowed against unlawful acts by a labor union and its members, it was said that "the prohibitions of the English act formulate those of our own law and those which existed in England before their act." It was also said that in the case there under consideration, all of the prohibitions specified in such act had been violated "except hiding tools and intimidating the wives and children of the 'scabs." " As to "watching and besetting," see § 86. Thus, it is said in Pollock on Torts, p. 184, that any act fitted to have the effect of putting "a reasonable man" "in present fear of violence" "may be an assault, though there is no real present ability to do the harm threatened." In 12 Hawkins' Pleas of the Crown, c. 62, § 1, are instanced "striking at him with or without a weapon; or presenting a gun at him at such a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of it; or by holding up one's fist at him; or by any other such like act, done in an angry, threatening manner." That, however, there is no liability for "the creation and application of public opinion as a constraining force upon conduct of any kind" desired to be discouraged, see Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 769; 53 Atl. 230, 234 (1902). 6 Thus, it was said in Snow v. Wheeler, 113 Mass. 179 (1879), that "it is not easy to give a definition ducing reasonable fear in a strong man; while the same acts done by the man might produce reasonable fear in the child. The demonstration of a single individual might have no influence in producing such reasonable fear, while the same demonstration by a combination might have such influence. While the doctrine seems originally to have applied only to fear of personal injury, it is generally regarded as equally applicable to fear of injury to property.7 § 5. Threats.-A threat is defined as "any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free voluntary action which alone constitutes consent." 8 In any view a threat involves the idea of expression of intention to do injury. Ordinarily such expression is in the form of a which shall include every form of such coercion." In Barr v. Essex Trades Council, 53 N. J. Eq. 101, 122; 30 Atl. 881, 889 (1894), it was said that the fear "need not be abject, but only such as to overcome his judgment" or induce him not to do, or to do, that which otherwise he would have done or have left undone." So in Cœur D'Alene Consolidated & Mining Co. v. Miners' Union, 51 Fed. 260, 267; 19 L. R. A. 382, 386 (C. C. Idaho, 1892), it was said: "What constitute such actionable threats or intimidations must be determined in each case from all the circumstances attending it. If the things done or the words spoken are such that they will excite fear, or a reasonable apprehension of damages, and so influence those for whom designed, as to prevent them from freely doing what they desire and the law permits, they may be restrained, and the courts will look beyond the mere letter of the act or word into its spirit and intent." See also Foster v. Retail Clerks' Protective Assoc., 39 Misc. 48, 52; 78 N. Y. Suppl. 860, 863 (Supm. Ct., Sp. T., 1902); Union Pac. R. Co. v. Ruef, 120 Fed. 102, 121 (C. C. Neb., 1902); Gray v. Building Trades Council, 91 Minn. 171, 181; 97 N. W. 663, 667; 63 L. R. A. 753, 758; 103 Am. St. Rep. 477 (1903). As to effect of offensive remarks and abusive epithets, see Carter v. Oster, 112 S. W. 995 (Ct. App. Mo., 1908). 7 See State v. Stockford, 77 Conn. 227; 58 Atl. 769; 107 Am. St. Rep. 28 (1904). 8 Klingel's Pharmacy v. Sharpe, 104 Md. 218; 64 Atl. 1029; 7 L. R. A. N. S. 976; 118 Am. St. Rep. 399 (1906), where "such a threat, coupled with the damage necessarily flowing from it in the prosecution of a conspiracy to do an unlawful thing" was said to be "sufficient to constitute a good cause of action." As to definition of the word as used in Conn. G. S. (1902), § 1296, see State v. Stockford, 77 Conn. 227; 58 Atl. 769; 107 Am. St. Rep. 28 (1904). more or less explicit declaration, though it has been said: "Threats in language are not the only threats recognized by the law. Covert and unspoken threats may be just as effective as spoken threats." 10 § 6. Announcement of intention to do lawful act; enforcement of rule of labor union.-The better view seems to be as Thus the effect of threats has been said to be produced by provisions in the constitution of an association for fines and penalties. Boutwell v. Marr, 71 Vt. 1; 42 Atl. 607; 43 L. R. A. 803; 76 Am. St. Rep. 746 (1899); Jackson v. Stanfield, 137 Ind. 592; 36 N. E. 345; 23 L. R. A. 588 (1894). See Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155, 178 (C. C., Wis., 1906). 10 Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 519; 77 N. W. 13, 22; 42 L. R. A. 407, 416; 74 Am. St. Rep. 421 (1898). By Utah Comp. Laws (1907), § 4487x11, it is a misdemeanor to "threaten to destroy property or to do bodily harm for the purpose of preventing any person or persons from entering or remaining in the employ of any company, corporation or individual." And statutory declarations of liability for injuring or interfering with, or preventing or hindering the pursuit of, a business or occupation; or in particular against interfering with, etc., in obtaining, continuing in or leaving employment, frequently expressly prohibit the use of threats or intimidation. See statutes cited in § 3; also 3 Ill. R. S. (Starr & Curtis' ed., 1896), pp. 3297-8, §§ 129, 130, c. 38, §§ 158-160; Christensen v. People, 114 Ill. App. 40, 70 (1904); Johnson v. People, 124 Ill. App. 213 (1906); Kan. G. S. (Dassler's ed., 1905), § 2481-2; Mich. Comp. Laws (1897), p. 3389; see also Colo. R. S. (1908), § 3924; Conn. G. S. (1902), § 1296; Wyeman v. Deady, 79 Conn. 414; 65 Atl. 129; 118 Am. St. Rep. 152 (1906); State v. McGee, 80 Conn. 614; 69 Atl. 1059 (1908), and generally statutes declaring criminal liability for threats or extortion. See, under Wisconsin statute, Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. 803, 817; 25 L. R. A. 414, 424 (C. C. Wis., 1904); Fischer v. State, 101 Wis. 23; 76 N. W. 594 (1898); State v. Schultz, 114 N. W. 505 (Supm. Ct. Wis., 1908). In Matter of McCabe, 29 Mont. 28; 73 Pac. 1106 (1903), the provisions of Mont. Penal Code, §§ 910, 911 as to fear and extortion were held inapplicable to the case of threat to discharge from employment. As to prohibition of Miss. Code (1906), § 1398, against, by threats of injury, intimidating into abandonment of the home and employment, see Breeland v. State, 79 Miss. 527; 31 So. 104 (1902). In State v. Stockford, 77 Conn. 227; 58 Atl. 9; 107 Am. St. Rep. 28 (1904), Conn. G. S. (1902), § 1296, was applied in sustaining a conviction for the employment of certain methods in attempting to induce an employer to execute an agreement with members of a trade union. See also as to § 1296, State thus stated: "In law a threat is a declaration of an intention or determination to injure another by the commission of some unlawful act; and an intimidation is the act of making one timid or fearful by such declaration. If the act intended to be done is not unlawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense." 11 v. Glidden, 55 Conn. 46, 69; 8 Atl. 890, 892; 3 Am. St. Rep. 23, 27 (1887). As to sufficiency of indictment under Vermont statute, see State v. Stewart, 59 Vt. 273, 291; 9 Atl. 559, 569; 59 Am. Rep. 710, 717 (1887). 11 Payne v. Western & Atlantic R. R. Co., 13 Lea (Tenn.), 507, 521; 49 Am. Rep. 666, 674 (1884). To similar effect, Boyer v. Western Union Tel. Co., 124 Fed. 246, 248 (C. C. Mo., 1903). So it was said by Lord Herschell in Allen v. Flood, App. Cas. (1898), 1, 129 (and compare remarks of Lord Shand, p. 165): "The terms 'threat,' 'coercion,' and even 'intimidation,' are often applied in popular language to utterances which are quite lawful, and which give rise to no liability either civil or criminal. They mean no more than this, that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed, to take a particular course. Everything depends on the nature of the representation or statement by which the pressure was exercised. The law cannot regard the act differently because you choose to call it a threat or coercion instead of an intimation or warning." In the dissenting opinion of Holmes, J., in Vegelahn v. Guntner, 167 Mass. 92, 107; 44 N. E. 1077, 1081; 35 L. R. A. 722, 727; 57 Am. St. Rep. 443 (1896), it was said: "The word 'threats' often is used as if when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do, that is, give warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to 'compulsion,' it depends on how you 'compel.' So as to 'annoyance,' or 'intimidation.'" See also dissenting opinion of Caldwell, J., in Hopkins V. Oxley Stave Co., 83 Fed. 912, 924, 935; 28 C. C. A. 99, 111, 122 (8th C., 1897); State v. Van Pelt, 136 N. C. 633; 49 S. E. 177; 68 L. R. A. 760 (1904); and on the general subject, article in 21 Am. Law Rev. 509, 529 (1887), by J. H. Wigmore. In Perkins v. Pendleton, 90 Me. 166; 38 Atl. 96; 60 Am. St. Rep. 252 (1897), an action for inducing a discharge from employment was sustained on allegations of "wilfully threatening, persuading, inducing and by other overt acts, compelling" the employer, "against its will and without any desire on its part so to do, to discharge the said plaintiff from its employ." As urged by counsel, there was no allegation of "any threat of injury" or use of intimidation or force. Now whether a threat includes an announcement of intention to do a lawful act is purely a matter of definition, and comparatively speaking it is immaterial whether it is so included or not. But the idea that has gained considerable prevalence, that it is so included, has produced much harm and confusion in misleading courts into holding unlawful the mere announcement of an intention to do a lawful act,12 though on principle it is difficult to see any illegality in such announcement,13 or why it is made illegal by merely calling it a threat.14 Thus if the enforcement of a rule of a labor union by fine be otherwise free from legal objection, it is, in the view herein taken, no objection to such enforcement that it is by way of "threat" to induce a member to quit or to refuse to enter employment. 15 12 Abundant illustrations will appear hereafter. Thus, see for instance, as to announcement of intention to discharge from employment, § 37. 13 See Hackley v. Headley, 45 Mich. 569, 576 (1881); Fuller v. Roberts, 35 Fla. 110, 117; 17 So. 359, 362 (1895). See cases cited in 6 Am. & Eng. Enc. of Law, p. 71, under article "Duress." 14 In accord with the text are Parkinson v. Building Trades Council, 98 Pac. 1027, 1039 (Supm. Ct. Cal., 1908); National Protective Assoc. v. Cumming, 170 N. Y. 315, 329; 63 N. E. 369, 372; 58 L. R. A. 135, 141; 88 Am. St. Rep. 648 (1902); affirming 53 App. D. 227; 65 N. Y. Suppl. 946 (1900); Park v. National Wholesale Druggists' Assoc., 175 N. Y. 1, 20; 67 N. E. 136, 143; 62 L. R. A. 632, 641; 96 Am. St. Rep. 578 (1903); affirming 54 App. D. 223; 66 N. Y. Suppl. 615 (1900). See Foster V. Retail Clerks' Protective Assoc., 39 Misc. 48; 78 N. Y. Suppl. 860 (Supm. Ct., Sp. T., 1902); Peo ple v. McFarlin, 43 Misc. 591; 89 N. Y. Suppl. 527 (Monroe County Ct., 1904); Transportation Co. v. Standard Oil Co., 50 W. Va. 611; 40 S. E. 591; 56 L. R. A. 804; 88 Am. St. Rep. 895 (1902). 15 Opposed, however, to this view is L. D. Willcut & Sons Co. v. Driscoll, 200 Mass. 110, 114; 85 N. E. 897, 899 (1908), where, in case of a strike concededly legal, relief was allowed the employer against the action of officers and members of unions in "intimidating by the imposition of a fine, or by a threat of such fine, any person or persons from entering into the employ of the plaintiff or remaining therein." By the rules of the unions there was subject to fine member working with a nonunion man who refused to join the union; SO persons designated as "common scabs," "inveterate or no torious scabs," and "union wreck. ers," those terms being applied to those who in different ways persisted in working after a strike had been called, it being said: "These fines in their operation are likely to a |