"And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States."

In holding that this section does not justify the secondary boycott, the Court shows that this section is confined to "a case between an employer and employees" and does not apply to disputes with others not in its employ. Continuing its argument on this point, the Court said:

"The majority of the Circuit Court of Appeals appear to have entertained the view that the words "employers and employees," as used in section 20, should be treated as referring to "the business class or clan to which the parties litigant respectively belong," and that, as there had been a dispute at complainant's factory in Michigan concerning the conditions of employment there-a dispute created, it is said, if it did not exist before, by the act of the Machinists' Union in calling a strike at the factory-section 20 operated to permit members of the Machinists' Union elsewhere, some 60,000 in number, although standing in no relation of employment under complainant, past, present, or prospective, to make that dispute their own and proceed to instigate sympathetic strikes, picketing, and boycotting against employers wholly unconnected with complainant's factory and having relations with complainant only in the way of purchasing its product in the ordinary course of interstate commerce, and this was where there was no dispute between such employers and their employes respecting terms or conditions of employment.

"We deem this construction altogether inadmissible. Section 20 must be given full effect according to its terms as an expression of the purpose of Congress; but it must be borne in mind that the section imposes an exceptional and extraordinary restriction upon the equity powers of the courts of the United States and upon the general operation of the anti-trust laws, a restriction in the nature

of a special privilege or immunity to a particular class, with corresponding detriment to the general public; and it would violate rules of statutory construction having general application and far-reaching importance to enlarge that special privilege by resorting to a loose construction of the section, not to speak of ignoring or slighting the qualifying words that are found in it. Full and fair effect will be given to every word if the exceptional privilege be confined-as the natural meaning of the words confines it-to those who are proximately and substantially concerned as parties to an actual dispute respecting the terms or condition of their own employment, past, present, or prospective. The extensive construction adopted by the majority of the court below virtually ignores the effect of the qualifying words. Congress had in mind particular industrial controversies, not a general class war. "Terms or conditions of employment" are the only grounds of dispute recognized as adequate to bring into play the exemptions; and it would do violence to the guarded language employed were the exemption extended beyond the parties affected in a proximate and substantial, not merely a sentimental or sympathetic, sense by the cause of dispute."

Justices Holmes and Clarke joined Justice Brandeis in the latter's dissenting opinion filed in this case. An interesting part of Justice Brandeis' opinion is his review of the development of the law of conspiracy in labor cases. On this point Justice Brandeis says:

"The change in the law by which strikes once illegal and even criminal are now recognized as lawful was effected in America largely without the intervention of legislation. This reversal of a common-law rule was not due to the rejection by the courts of one principle and the adoption in its stead of another, but to a better realization of the facts of industrial life. It is conceded that, although the strike of the workmen in plaintiff's factory injured its business, the strike was not an actionable wrong; because the obvious self-interest of the strikers constituted a justification. See Picket v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 638. Formerly courts held that self-interest could not be so served. Commons, History of Labor in the United States, vol. 2, c. 5. But even after strikes to raise wages or reduce hours were held to be legal because of the self-interest, some courts held that there was not sufficient causal relationship between a strike to unionize a shop and the self-interest of the strikers to justify injuries inflicted. Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Lucke v. Clothing Cutters' Assembly, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 408, 39 Am. St. Rep. 421; Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783. But other courts, repeating the same legal formula, found that there was justification, because they viewed the facts differently. National Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 369,

58 L. R. A. 135, 88 Am. St. Rep. 648; Kemp v. Division No. 241, 255 Ill. 213, 99 N. E. 389, Ann. Cas. 1913D, 347; Roddy v. United Mine Workers, 41 Okl. 621, 139 Pac. 126, L. R. A. 1915D, 789.

"When centralization in the control of business brought its corresponding centralization in the organization of workingmen, new facts had to be appraised. A single employer might, as in this case, threaten the standing of the whole organization and the standards of all its members; and when he did so the union, in order to protect itself, would naturally refuse to work on his materials wherever found. When such a situation was first presented to the courts, judges concluded that the intervention of the purchaser of the materials established an insulation through which the direct relationship of the employer and the working men did not penetrate; and the strike against the material was considered a strike against the purchaser by unaffected third parties. Burnham v. Dowd, 217 Mass. 351, 104 N. E. 841, 51 L. R. A. (N. S.) 778; Purvis v. United Brotherhood, 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757, 6 Ann. Cas. 275; Booth v. Burgess, 72 N. J. Eq. 181, 65 Atl. 226. But other courts, with better appreciation of the facts of industry, recognized the unity of interest throughout the union, and that, in refusing to work on materials which threatened it, the union was only refusing to aid in destroying itself. Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661; Cohn & Roth Electric Co. v. Bricklayers, 92 Conn. 161, 101 Atl. 659, 6 A. L. R. 887; Gill Engraving Co. v. Doerr (D. C.) 214 Fed. 111; State v. Van Pelt, 136 N. C. 633, 49 S. E. 177, 68 L. R. A. 760, 1 Ann. Cas. 495; Grant Construction Co. v. St. Paul Building Trades, 136 Minn. 167, 161 N. W. 520, 1055; Pierce v. Stablemen's Union, 156 Cal. 70, 76, 103 Pac. 324.

"So, in the case at bar, deciding a question of fact upon the evidence introduced and matters of common knowledge, I should say, as the two lower courts apparently have said. that the defendants and those from whom they sought co-operation have a common interest which the plaintiff threatened."

This decision will do much to set some reasonable limits on the growth of the labor union idea and preserve the property of employers who do not see fit to unionize their factory. The pendulum of public opinion always swings to one extreme before it turns back to swing in the other direction. That extreme has been reached. Labor has been given, as Justice Brandeis shows, a great extension of its privileges and rights under the law until it has power which enables the union workingman to compete on equal terms with his employer. To this extent the public, we believe, is in hearty sympathy with the changes that have been made in the law. But to go farther and legalize the secondary boycott would not only be unjust to employers but detrimental to the public welfare. The law cannot

afford to give such great power to large combinations of workingmen without placing the business interests of the country in the greatest jeopardy.

THE DOMICILE OF AN INFANT-I-WHILE THE INFANT'S FATHER IS ALIVE.*

The domicile of a person is of importance in the Anglo-American system of law, because of the number of things which are connected with it. Domicile determines the national character of a person, his status, his eligibility to office, his right to vote, and his control of movable property. In addition, legitimacy and legitimation, adoption, paternal powers, guardianship, minority and majority, capacity, intestate succession, testamentary succession, validity of wills, rights in community property that is movable, jurisdiction for divorce, settlement under poor laws, legacy and inheritance. taxes, pauper settlements, probate and administration, and homestead exemptions, all are determined by reference to the domicile of the person concerned. The domicile of an infant is connected with five of his relationships:

1. His relations with his father.

2. His relations with his mother, after the death of his father.

3. His relations with his next of kin on the decease of one or both parents. 4. His relations with his guardians. 5. His relations with the State as a juristic person.

The decided cases, so far as the researches of the writer go, indicate thirty types of situations connected with these relation

*This is Part I of a thorough analysis of the subject of the Domicile of An Infant prepared by our Associate Editor, Albert Levitt, of the George Washington University. Part II will appear next week and will discuss the subject of Domicile of the Infant-After the Father's Death.-Ed.

(1) For a thorough discussion of this matter see Jacobs on Domicile, Chap. 2; and Wharton, Conflict of Laws, 3rd Ed.. page 77.

ships. It is the purpose of this article to indicate what these situations are, what the law governing the domicile of the infant within them is, and the reasons for the law being what it is.

Every person must have a domicile some

where. The reason is that every person as soon as he is born must come under the control of some legal order; he must be sub judice; he cannot be outside the law. Says Prof. Beale: "It is unthinkable in a civilized country that any act should fall outside the domain of law. If law be regarded as command, then every act done must either be permitted or forbidden. If law be regarded as a right-producing principle, then every act must be in accordance with the law change or not change existing

(2)

Holmes v. Oregon Railroad Co., 5 Fed. 523; White v. Brown, 29 F. Cas. No. 17,538; State v. Hallett, 8 Ala. 159; New Haven First National Bank v. Balcom, 35 Conn. 351; Welsh V. Shumway, 232 Ill. 54, 83 N. E. 549; People v. Moir, 207 111. 180, 69 N. E. 905; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61; Schmoll V. Schenck, 40 Ind. A. 581, 82 N. E. 805; Barhydt v. Cross, 156 Iowa 271, 136 N. W. 525; In re Titerington, 130 Iowa 356, 106 N. W. 761; Ashland v. Cattletsburg, 172 Ky. 365, 189 S. W. 454; Graves v. Georgetown, 154 Ky. 207, 157 S. W. 303; Boyd v. Comm., 149 Ky. 764, 149 S. W. 1022; Helm v. Comm., 135 Ky. 392, 122 S. W. 196. Erwin v. Benton, 120 Ky. 536, 87 S. W. 291; Lebanon v. Biggers, 117 Ky. 430, 78 S. W. 213; Louisville R. R. v. Kimborough, 115 Ky. 512, 74 S. W. 229; Tipton v. Tipton, 87 Ky. 243. 8 S. W. 440; Holyoke v. Holyoke, 110 Me. 469, 87 A. 40: Whately v. Hatfield, 196 Mass. 393, 82 N. E. 248; Borland v. Boston, 132 Mass. 89; Shaw v. Shaw, 98 Mass. 158; Otis v. Boston, 12 Cush. 44; McDaniel v. King, 5 Cush. 474; Opinion of Judges, 5 Metcalf 587; Thorndike v. Boston, 1 Metcalf 242 (Mass.); Abington v. North Bridgewater, 23 Pick. 170; Morgan v. Nunes, 54 Miss. 308; Young v. State, 74 Neb. 346, 104 N. W. 867; DeMeli v. DeMeli, 120 N. Y. 485, 54 N. E. 996; Matter of Rooney, 159 N. Y. S. 132; U. S. Trust Co. v. Hart, 135 N. Y. S. 81; Douglas v. N. Y., 9 N. Y. Super. 110; Matter of Bye, 2 Daly 525; Von Hoffman v. Ward, 4 Redfield Surrogate 244; State v. Kuhn, 11 Oh. S. & C. P. 321, 8 Oh. N. P. 197; Pickering v. Winch, 48 Ore. 500, 87 P. 763; Keelin v. Graves, 129 Tenn. 103. 165 S. W. 232; Marsden v. Troy, 189 S. W. (Tex.) 960; Brown v. Beckwith, 58 W. Va. 140, 51 S. E. 977; Seibold v. Wahl, 164 Wisconsin 82, 159 N. W. 546; Miller V. Sovereign Camp Workmen of the World, 140 Wis. 505, 122 N. W. 1126; Wadsworth v. McCord, 12 Canadian S. C. 466; Wanzer Lamp Co. V. Woods, 13 Ont. Pr. 511, 513. Dicey, Conflict of Laws, Ch. 2, Rule 2; Jacobs on Domicile, page 164; Story, Conflict of Laws, 8th Ed., p. 47; Wharton, Conflict of Laws, Vol. 1, p. 90 et seq.

113

rights.' In Swift v. Philadelphia and Reading Railroad, Judge Grosscup said: "No plain or valley, no nook or corner, to which the dominion of man has extended itself, is without some law of the land. Indeed, law is the breath of dominion." This social control of the individual and his acts is necessary, for without it each man is his own judge and the determiner of his own acts, which means anarchy," and a retrogression to the most primitive stages of legal development. The domicile of the individual determines which factor or element of a legal system is to indicate and control certain of his rights, duties and powers. It is a delimiting thing. It indicates which legal principles shall apply to given acts or omissions, and excludes other principles of law from acting upon these omissions or acts. This is true when domicile is looked at from its functional standpoint; when we ask: What is the purpose, in our legal system, of domicile? Looked at from what we may call the spatial standpoint, the domicile of a person is that spot within the territory of his sovereign to which the legal system of that sovereign looks for the principles which are to govern that person's dealings along certain lines. Westlake says, concerning this: "In Christendom each civil society is now a territorial one. And within Christendom every person is a member of that civil society in the territory of which he is domiciled." Or, as Dicey put it, "For the purpose of determining a person's legal rights or liabilities, the courts will invariably hold that there is some country in which he has a home, and will not admit the possibility of his being in fact homeless, or, in other words, even if he is in fact homeless, a home will, for the purpose of determining

his legal rights, or those of other persons, always be assigned to him by a presumption or fiction of law." Here Mr. Dicey combines both the functional and the spatial aspect of domicile, and in addition, when he speaks of domicile as assigned "by a fiction of the law" he is presenting the conceptual view of domicile. That is domicile is "an idea of the law." Here he follows the famous pronouncement of Lord Westbury, who said: "It is necessary in the administration of the law that the idea of domicile should exist, and that the fact of domicile should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well that succession and distribution depend upon the law of the domicile. Domicile therefore is an idea of law. It is the relation which the law creates between an individual and a particular locality country. To every adult person the law ascribes a domicile, and that domicile remains his fixed attribute until a new and different attribute usurps its place."" These three aspects of domicile, the functional, the spatial and the conceptual, are indivisible in fact, while the primary and most important aspect is the functional one. The conceptual aspect is merely of philosophical and metaphysical value; the spatial aspect determines where the principle to be applied is to be found, and is of practical importance; but the functional aspect determines whether the principle when found should be applied in the particular instance or not. It gives the reason for the principle.

or

As an infant is a member of society, his activities and relationships need to be controlled, and he must therefore have a domicile somewhere. As domicile is a relation between a person and a given locality, that locality must be determined by law, and

(8) Dicey on the Conflict of Laws, American Edition, page 94.

(9) Bell v. Kennedy (18668), L. R. 1 S. & D. A. 320, L. R. 1 H. L. Sc. 307.

the determination must be made as soon as the child is born, for otherwise there would be a certain extent of time within which the infant is not subject to legal control, which by hypothesis is impossible. This locality can be either the place where the child actually comes into the world at the time of its birth or some other spot. As a child is usually born into a family, which family has a head who is accountable to the State for the proper control of the members of the family, and as the head of the family is under normal circumstances the father of the child,10 the domicile which the law attaches to the child upon its birth is that of the father. As the technical phrase has it: The domicile of origin is the domicile of the father.

An interesting question arises at this point: What is the domicile of origin of a posthumous child? So far as the writer has been able to determine, there is no reported case deciding the point; nor has he found any dictum dealing with the matter. Westlake, in the first edition of his work on Private International Law, suggested that the domicile of origin would be that of the mother, but cited no cases in support of his opinion." In the fourth edition. of his work, however, Westlake does not mention the matter at all.11a Dicey,12 and Jacobs, 13 follow Westlake in thinking that the mother gives her domicile to a posthumous child. But Wharton disagrees with this,14, basing his opinion upon the fact that a mother could by changing her domicile between the time of the death of her hus

(10) See my article, The Domicile of a Married Woman, 91 Central L. Journal 4, 8. (11) Westlake, Private International Law, page 35.

(11a) Unless the language on page 323, par. 246, can be made to include this situation. The paragraph reads: "The original domicile of a child born out of wedlock is the domicile of its mother at the time of its birth." I think, however, that Mr. Westlake is referring to illegitimate children and not to posthumous children in this paragraph.

(12) Conflict of Laws, Am. Ed., page 101, Rule 6 (2).

5.

(13) Domicile, par. 105.

(14) Conflict of Laws, 3rd Ed., page 90. note

band and the birth of the child change the law of succession as to such child. But, it is submitted with all due deference, that this objection is not a strong one; for, there is no domicile other than that of the mother to which the child's domicile of origin can be attached with good reason. The father died before the child was in esse. His domicile has vanished. The relation between the father and a particular territory is gone, for the party to the relation is gone. The reason for having a domicile is the necessity for controlling the activities and legal relations of the child. This control can come through the state directly or through some one appointed by the state. Our system of law prefers wherever it is possible to put the control of the child in the hands of the mother, when the father is dead, or failing that in the hands of the next of kin. In the instant case, the mother is the natural guardian of the child. She is under a duty to care for it. Her domicile is in existence at the time the child is born, and there is no good reason why her domicile should not be the domicile of origin for the child. Furthermore, as we shall see later, the mother can change the domicile of her minor children, if she does it in good faith,15 and in so doing she does change the law as to succession as to those children. The answer to Mr. Wharton is that the law permits the very thing to occur which he urges as an objection to the position taken by Mr. Westlake.

The situation sometimes arises where the mother dies during the birth of a posthumous child. In such a case two courses are reasonably open to the law. The first is to fix the domicile of origin as being the place where the child was born, by analogy to the cases of waifs and foundlings, or else to have the domicile of the next of kin to whom the care of the child is given, become the domicile of origin of the child for the same reasons that would attach this domicile to that of the mother. Where the

(15) Infra, note 42.

child is still-born no domicile of origin can come into question.

An infant being non sui juris cannot change his domicile.10 During the life

time of its father the domicile of an infant follows that of the father, under normal circumstances.17 This is because the home of

(16) Delaware, etc., R. R. Co., v. Petrowsky, 250 Fed. 554; Marks v. Marks, 75 Fed. 321; Allgood v. Williams, 92 Ala. 551; Landreth v. Henson, 116 Ark. 361, 173 S. W. 427; In re Henning, 128 Cal. 214, 60 Pac. 762; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Harkins v. Arnold, 46 Ga. 656; Taylor v. Jeter, 33 Ga. 195; Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628; Warren v. Hoffer, 13 Ind. 167; Hiestand v. Kuhns, 8 Blfk. (Ind.) 345; In re Benton, 92 Iowa 202, 60 N. W. 614; Jenkins v. Clark, 71 Iowa 552, 32 N. W. 504; Modern Woodmen of America v. Hester, 66 Kan. 129, 71 P. 279; Boyd v. Comm., 149 Ky. 764, 149 S. W. 1022; Louisville R. R. Co. v. Kimbrough, 115 Ky. 512, 74 S. W. 229; Munday v. Baldwin, 79 Ky. 121; Mennards Succ., 44 La. Ann. 1076, 11 So. 705; Stephens Succ., 19 La. Ann. 499: Powers v. Mortee, 20 Fed. Cas. No. 11,362; Sudler v. Sudler, 121 Md. 46, 88 A. 28; Russell v. State, 62 Neb. 512. 87 N. W. 344; Hess v. Kinball, 79 N. J. Eq. 454, 81 A. 363; Ames v. Duryea. 6 Lans. (N. Y.) 155: Matter of Kiernan, 77 N. Y. S. 924; Ex. p. Dawson, 3 Brad. Surr. (N. Y.) 130: Guier v. O'Daniel, 1 Binn. (Pa.) 349, note: Reitmeyer v. Wolfe, 2 Pa. Dist. 810: Allen v. Thomason, 11 Humph. (Tenn.) 536: Trammell v. Trammell, 20 Tex. 406; Hardy v. DeLeon, 5 Tex. 211; Franks v. Handcocks, 1 Tex. Unreported Cases 554; In re Bunting, 30 Utah 251 84 P. 109: Mears v. Sinclair, 1 W. Va. 185; Miller v. Sovereign Camp W. W., 140 Wis. 505, 122 N. W. 1126; Jopp v. Wood, 4 DeG. J. & S. 616, 46 Reprint 1057; Forbes v. Forbes, Kay 341, 69 Reprint 145.

(17) See cases in preceding note and these additional cases: Lamar v. Micou, 112 U. S. 452. 28 L. Ed. 751; Bjornquist v. Boston R. R., 250 Fed. 929; Toledo Tract. Co. v. Cameron, 137 Fed 48: Dresser v. Edison Illuminating Co.. 49 Fed. 257: In re Chung Toy Ho, 42 Fed. 398: Powers v. Mortee, 19 Fed. Cases No. 11,362: Prentiss V. Barton, 19 Fed. Cases No. 11.384; White v. Brown, 29 Fed. Cas. No. 17,539; Kelley v. Garrett, 67 Ala. 304: Metcalf v. Lowther, 56 Ala. 312: Daniel v. Hill, 52 Ala. 430: Johnson v. Copeland. 35 Ala. 521; Johnson v. Turner, 29 Ark. 280; Grimmett v. Witherington, 16 Ark. 377: In re Vance. 92 Calif. 195, 28 P. 229; Matter of Afflick, 10 D. C. 95: Smith v. Croom, 7 Fla. 8; Jackson v. Southern Flour Co., 146 Ga., 453, 91 S. E. 481; Ilo v. Ramey, 18 Ida. 642, 112 P. 126; Freport v. Stephenson Co., 41 Ill. 495; Peo. v. Board of Education, 206 Ill. App. 381; Maddox v. State, 32 Ind. 111; McCollem v. White, 23 Ind. 43; Wheeler v. Burrow, 18 Ind. 14; Hindorff v. Sovereign Camp. W. W., 150 Iowa 185; Ex. p. McCoun, 96 Kan. 314, 150 P. 516; Shirley v. Burch, 6 Ky. L. 445: Oglesby v. Turner, 127 La. 1093; Winn's Succ., 3 Rob. (La.) 303; Robert's Succ., 2 Rob. (La.) 427; Parsonfield v. Kennebunkport, 4 Me. 47; In re