OUR JUDICIAL OLIGARCHY: (NINTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY NINTH ARTICLE:—WHY THE PEOPLE DISTRUST THE COURTS By GILBERT E. ROE (Copyrighted 1911, The Robert M. La Follette Co.) Do the Courts Favor Combined Capital at the Expense...
...The collective boycott is unlawful because it might accomplish something...
...This object is best accomplished by the strikers or their friends remaining in the vicinity of the work, and meeting the new men as they arrive and persuading them not to accept employment...
...Co., 62 Fed...
...It is in hostility to a law of man's nature, which prompts him to associate with his fellows for his protection, defense, and improvement...
...Courts Maintain Old Injustices AS WE HAVE previously seen, the year 1800 was ushered in, in England, by the passage of the statute3 which practically forbade any combination among laborers to obtain an advance of wages or to lessen the hours of work, and which also prohibited strikes and the giving of aid to strikers...
...case above noticed, where he vigorously protested against the injunction issued by the Court prohibiting an orderly boycott...
...No people could gain or maintain their rights or liberties, acting singly, and any class of citizens in the state subject to unjust burdens or oppression can only gain relief by combined action...
...Y.) 529...
...Strikes are declared unlawful sometimes because of their object, and sometimes because of the means employed...
...v. Northern Pac...
...that the penalty of refusal is simply that they will leave his service...
...3, p. 218...
...and to say that it is lawful to combine to protect your own interests, but unlawful to combine to injure your antagonist, is taking away with one hand a right given with the other...
...This latter action is usually referred to as a "Secondary Boycott...
...And if he have wrought yet greater wrong, then let his eyes be put out, and his nose and his ears and his upper lip cut off and let him be scalped...
...3, pp...
...The individual boycott is lawful, because it can accomplish little or nothing...
...11 Arthur v. Oakes, 63 Fed., 310...
...For example,—a sympathetic strike on the part of railroad employees in order to aid the striking employees of the Pullman Palace Car Company is unlawful14 and the organization of the railway employees for such purpose is a conspiracy for which various of them served long terms in prison...
...Also 42 American Law Review, p. 161 and p. 200...
...What is 'competition' when done by capital is 'conspiracy' when done by the laborers...
...Protests from Some of the Judges TO THE CREDIT of the Judiciary, it is to be said that the present monstrously unjust state of law on this subject was not built up, without powerful protests from some of the Judges...
...R. R. Co., 60 Fed., 803, opinion by Jenkins, Circuit Judge...
...This is called "picketing...
...U. S. v. Kane, 23 Fed., 748...
...In the Thomas case just cited, Mr...
...No amount of verbal dexterity can conceal or justify this glaring discrimination...
...Four federal judges have written that they agreed with me that the action of the court of appeals is so utterly reactionary as to be an invitation to revolution...
...Under its operation every religious, political, or social organization in the country may be enjoined from combined action, if their religious faith or political creed or practice is obnoxious to the judge...
...My plea is that the court act with ordinary statemanship, ordinary regard for the laws, ordinary regard for the constitution as a living aid to growth, not as a straight jacket, and ordinary regard for the rights of humanity and the rights of civilization...
...It is no answer to the above considerations to say that the employer is not compelled to submit to the demand of his employees...
...Every strike is in the nature of an act of war...
...There is this coercion:—The men agree to leave simultaneously in large numbers and by preconcerted action...
...No amount of verbal dexterity can conceal or justify this glaring discrimination...
...The doctrine (announced by the majority of the court) compels every man to be a stranger in action to every other man...
...10 Farmers' Loan & Trust Co...
...Justice Taft...
...Of this act, the Court said: "This was an unwarrantable interference with the conduct 14 Thomas v. Cincinnati, etc., Ry...
...Farrer v. Close, L. R. 4 Q. B., 602...
...Schwartz v. International L. G. W. Union, 68 Misc...
...In such a condition of affairs it is idle to suggest that the manufacturer is free to reject the terms which the confederates offer...
...In his next article Mr...
...Do our courts discriminate against unions of laborers in their struggle for fair wages and reasonable conditions of toil...
...These decisions reached their culmination when it was held in substance that the objects of a trade union were so far illegal that the embezzlement of its funds was not an offense against the statute.7 From this point on, statute after statute was passed in England to correct the injustice of the Court decisions until, at the present time, as we have seen, there is little of the old law relating to labor organizations left in that country, The "common law" applied by the Courts after the remedial statute of 1825 had been passed, seems to have been invented by the Judiciary in order to keep laborers and labor unions in subjection...
...The right of an employer to discharge an employee at any time, for any reason or for no reason and to give nptice to other employers of such discharge and the reasons for it is well settled.l2 Some years ago the Western Union Telegraph Company, having become aware that certain of its employees had joined a labor union, immediately discharged them without notice and without other cause and also notified other employers of such discharge and the reasons for it...
...A LEARNED JUDGE wrote, "What is 'competition' when done by capital, is 'conspiracy' when done by the laborers...
...12 Boyer v. Western Union Telegraph Co., 124 Fed., 246...
...203-227...
...and again: 9 37 Am...
...I cannot regard such a course of conduct as lawful...
...It was promulgated at a time * * * when laborers had no rights their employers or the courts were bound to respect...
...A corporation is an association of individuals for combined action...
...An employer, having discharged employees for belonging to a labor union, has the right to keep a book containing their names, and showing the reason of their discharge and to invite inspection thereof by other employers, even though the latter, therefor refuse to hire the discharged employees...
...That employees do not possess these rights and that they are constantly being severely punished and even imprisoned for attempting to perform such acts is well known...
...The lahorers, when they publish an employer as "unfair," give out information intended to prevent various persons from patronizing such employer...
...19 11 Harvard Law Review, p. 487, Article by Charles Noble Gregory, Dean of the Law School of Iowa University...
...But, when by publishing an employer as "unfair" a loss of business is caused, such act is said to work "irreparable damage" to the employer and all the machinery of the Courts is set in motion to prevent it...
...On a subsequent page, the same learned justice said: "While laborers, by the application to them of the doctrine we are considering, are reduced to individual action, it is not so with the forces arrayed against them...
...Why should a court of equity dispense with all these safeguards and proceed summarily to imprison men without a jury trial, and upon evidence which would never sustain a conviction in a criminal action...
...In the Gompers case just referred to, which is the latest utterance of our highest Court, on this subject, it is said: "The Court's protective and restraining powers extend to every device whereby property is irreparably damaged or commerce is illegally restrained...
...Among other things, he said:22 "This proposition, that it is unlawful for men to do collectively what they may do, without wrong, individually, was enunciated more than a century and a half ago, when all manner of association and cooperation, among men, offensive to the king, or not in the interest of despotic power or the ruling classes, or not approved by the judges were declared by the courts to be criminal conspiracies...
...And let him who has power of judgment very earnestly bear in mind what he himself desires when he says: 'forgive us our trespasses as we forgive those who trespass against us' and we command that Christian men on no account, for altogether too little, condemn to death...
...trusts are corporations combined together for the very purpose of collective action and boycotting...
...So also it is an "indictable conspiracy" for employees to combine and notify their employer that unless he discharges certain named persons, they will strike.15 In the case last mentioned, nothing more was shown than that the employees notified the employer that unless certain men were discharged they would quit...
...It was orginally designed for this very purpose...
...21 When a Court is at liberty, as this decision plainly shows all Courts are in cases of trade disputes, to treat words as acts, it is only a step to treat acts as words, and all principles of law by which men's conduct has heretofore been judged will vanish, and in its place we will have simply the uncontrollable discretion of a Judge...
...The Federal Court, however, in which the action was brought, turned a deaf ear to the complaint of the employees and laid down the rights of the employers in the following terms:13 "As in the absence of contract for employment for a definite period, the employer may discharge his employees at any time for any reason, or for no reason, there can be no such thing as an unlawful conspiracy to destroy a labor union by discharging its members or refusing to employ them...
...Gain on one side implies loss on the other...
...p. 930...
...When the good king had finished his preamble and got down to the business at hand, he fixed the punishment of those who violated his statute, by providing, concerning the offender: "That his hands be cut off, or his feet, or both, according as the deed may be...
...The republican party was formed to protest against the very view the court reactionaries now insist we should hold...
...Roe will continue his discussion of the decisions of the Courts relating to disputes between labor and capital, and also discuss some of the decisions relating to "vested rights...
...whichever of these those shall counsel whose duty it is to counsel thereupon, so that punishment be inflicted and also the soul be preserved...
...2 I am always reminded of old King Canute and his criminal statutes, when I read the decisions of our Courts relating to labor disputes...
...Our Judicial Oligarchyof his (the employer's) business, and it seems impossible that such acts should not be in their usual effects highly injurious...
...3, c. 60...
...A recent decision of the Illinois Supreme Court is to the effect that picketing for the purpose merely of peaceably dissuading the men from going to work, who were brought in by the company to take the strikers' places, was unlawful and would be enjoined.17 While some courts say that picketing without violence is permissable, yet as it is always possible for the employer to incite some one to violence, and in many cases individual employees will resort to violence, it easily happens that some disorder attends upon picketing, and since the Courts" uniformly hold this a sufficient reason for granting an injunction, it has come about that striking employees have practically been deprived by the decisions of the Courts of the right to peaceably dissuade others from taking their places.18 A pertinent inquiry of the labor organizations at this point is, why not depend upon the criminal law in the case of a strike as in all other cases, to punish any breach of the peace or other violence...
...58, 59...
...Editor's Note...
...23 Fed., 757...
...Every student of the subject must admit the hostility manifested by the English Courts to laborers and labor unions, and their repeated attempts to maintain the principles of the old law, even though this involved disregarding the remedial statutes which were, from time to time passed...
...Y.) 865...
...In the following article, Mr...
...8 This whole subject is discussed in Stephen's History of the Criminal Law of England, by an authority who certainly was not friendly to trade unions, nor over critical of the Courts...
...The viewpoint, whim, or caprice of a judge determines, in the majority of cases, whether a strike, which means almost life or death to thousands of employees, will be permitted as lawful, or enjoined and broken up by the Courts as unlawful...
...In other words, the discharged men were "BLACKLISTED...
...The decisions always abound with satisfying phrases about the "Dignity of Labor," "Sacredness of Contract," "The Right to Work" and the like, but when the decision gets down to the question presented in the particular case, and has finished with the Labor Organization before it, that unfortunate party is apt to bear a strong resemblance to one of King Canute's subjects after a collision with that Monarch's criminal law...
...17 Barnes v. Typographical Union, 232 Ill...
...This must be so, because the whole subject had been minutely regulated by statute and with the repeal of the statutes, the decisions of the Courts based thereon must also have fallen.8 Courts Have Shown Hostility to Labor IHAVE HASTILY SKETCHED the development of the law of England on the subject under consideration, in part at least, because it is easier to see what the Courts have done in 5 These decisions are compiled in Stephen's History of the Criminal Law of England, Vol...
...It is a doctrine abhorrent to freemen...
...Interpretation of the law must be made from day to day and the interpretation of 100 years ago must not be held immutable...
...But these precedents, so shocking to our sense of right, so inimical to our constitution and social and economic conditions, and so subversive of the liberty of men, should be permitted to sleep in profound oblivion...
...62 Fed., p. 803 and cases there cited by Mr...
...The employees, having witnessed many successful applications to the Courts by employers under similar circumstances applied to the Court themselves, setting up that the defendant company had unlawfully conspired with other parties mentioned to destroy the labor union and to work irreparable injury to the men, not only by discharging them, but by preventing their employment elsewhere...
...but rather let gentle punishment be decreed for the benefit of the people, and let not be destroyed for little, God's handiwork and his own purchase which he dearly bought...
...Law Review, 431...
...By the "Blacklist," the employer gives out information in order to prevent the employment of certain laborers...
...Justice Taft said: "All the employees had the right to quit their employment...
...Roosevelt Criticizes Tory Judges IN a vigorous letter to a newspaper editor, who had taken him to task for daring to question judicial decisions, the Ex-president expresses the following sentiments: "It is simply nonsense to suppose that this country will tolerate permanently a line of action such as the court of appeals followed in declaring unconstitutional the workmen's compensation act...
...1, pp...
...3, p. 217...
...No one can tell in advance what a court will hold, for there is no uniformity in the rulings...
...Since no possible good can come to strikers if their places can be immediately filled by other employees, it becomes necessary for them to inform those about to take their place, of the existence of the strike and the reason for it...
...Under such circumstances they have become what have been called "verbal acts," and as much subject to injunction as the use of any other force whereby property is unlawfully damaged...
...7 Hornby v. Close, L. R. 2 Q. B., 153...
...What each individual member of a labor organization may lawfully do, acting singly, becomes (under the rule adopted in that case) an unlawful conspiracy when done by them collectively...
...It is at this point that the Courts take up the fight and by a series of decisions based upon what they are pleased to term the common law, practically maintain much of the hardship and injustice of the old statute which had been repealed.5 The state of the law under these decisions is thus described by Sir...
...3 40 Geo...
...It is not always so easy for us, however, to admit the equally obvious truth that our own Courts are engaged in doing identically the same thing...
...Hopkins v. Oxley Stove Co., 83 Fed., 912...
...In 'that codeless myriad of precedent,' running back to the Dark Ages called the 'Common Law,' it is not difficult to find a precedent for inflicting any injustice or oppression on the common people...
...and capital, which is the product of labor, is in itself a powerful collective force...
...Our Courts early showed an inclination to apply the rules of the earliest English Law on the subject by forbidding laborers to continue their organization9 and by practically prohibiting strikes.10 These decisions, have, of course, been modified in the partculars mentioned,11 but the rules now existing are hardly less shocking in their injustice than those announced by the English Courts early in the last Century...
...We cannot close our eyes to the fact, that the threat of the workman to quit the employer under these circumstances, is equivalent to a threat that unless he yield to their unjustifiable demand, they will derange his business and thus cast a heavy loss upon him...
...The Courts divide strikes into two classes, —lawful and unlawful...
...If a single step was taken to dissuade systematically other persons from working, those who took it incurred the risk of being held to conspire to injure the employer, or to conspire to obstruct him in the conduct of his business...
...The exercise of this power by the Courts has been of such a character as to alarm even the most conservative members of the legal profession.19 Is This Administering Justice...
...No man who takes the opposite ground to that which I have taken in the article in question has any right on the bench, and it is a misfortune to have him there...
...168-169...
...18 State v. Stockford, 77 Conn., 227...
...Martin on the Law of Labor Unions, (1910) Sec...
...20 Thomas v. Cincinnati, etc., Ry...
...An allegation in a bill by members of a labor union for an injunction, that defendant, its officers and agents have unlawfully combined and confederated to destroy the union and by threats, intimidation and coercion, and otherwise, are interfering with plaintiffs and with others of their employees for uniting with the union, and are seeking to prevent those discharged from obtaining employment" states no cause of action...
...ANOTHER METHOD resorted to by labor to enforce its demands against employers, is the "boycott...
...because its free exercise is fatal to despotism and oppression...
...Having, like King Canute conceded that much for Christian charity, the learned Justice proceeds: "But they had no right to combine to quit, in order thereby to compel their employer to withdraw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation thus sought to be broken had no effect whatever on the character or reward of their services...
...another country, than it is to see what they are doing in our own...
...N. Y. Central Iron Works v. Brennan, 105 Supp., (N...
...Curran v. Galen, 152 N. Y., 33...
...4, c. 129...
...4 6 Geo...
...803, opinion by Taft, J. in re Debs, 158 U. S., 564...
...collectively, they cannot...
...The use of the injunctive process by the Courts in this class of cases has become so common in recent years that we have coined, to describe it, the expression "government by injunction...
...It is difficult to see how, in the case of a conflict of interests, it is possible to separate the two objects of benefiting yourself and injuring your antagonist...
...They neither justify nor palliate encroachments on the natural and constitutional rights of the citizens...
...6 Stephen, Vol...
...This term has been variously defined, but in a general sense it means the refusal of the employees engaged in a trade dispute to patronize the employer with whom such dispute exists and also to procure as many sympathizers and as large a portion of the public as possible, also to withhold patronage from the objectionable employer...
...Note, however, that while the "Blacklist" is uniformly upheld by the Courts, except as it has been prohibited by Legislative action, the "Secondary Boycott," so-called, is as uniformly condemned and prohibited.20 These decisions show that when, by the "Blacklist," an employer is able to break up a labor union and starve the employees and their families into submission, no cause of action arises, and the laborer is without remedy...
...15 State v. Donaldson, 32 N. J. Law, 151...
...In all ages those who seek to deprive the people of their rights justify their action by ancient and obsolete precedents, and by coining definitions suited to their ends...
...The Modern Law of Labor Unions, by Martin, Sec...
...13 124 Fed., 246...
...In case of an unlawful conspiracy (agreeing to publish certain employers as unfair) the agreement to act in concert when the signal is published, gives the words Unfair, We don't patronize, or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have...
...See Vol...
...People can only free themselves from oppression by organized force...
...The strength it imparts carries its own protection...
...The idea of the power of men in association has always been abhorrent to despots, and to those who wish to oppress their fellow men, 16 Reynolds v. Davis, 198 Mass., 292...
...Proceeding under the form of the criminal law insures a jury trial, and proof of guilt beyond a reasonable doubt, before one charged with an offense can be punished...
...Gompers, Mitchell & Morrison, petitioners, v. Bucks Stove & Range Co., decided by the Supreme Court of the United States May 15, 1911, and cases there cited...
...ONE OF THE EARLY Christian Kings of England.1 introduced his criminal statutes with the following general, but very commendable language: "Though anyone sin or deeply foredo himself, let the corrections be regulated so that it be becoming to God and tolerable before the world...
...21 While the Supreme Court, by disposing of the case on a question of procedure, avoided the necessity of confirming the sentences of imprisonment which had been imposed on the labor leaders, Gompers, Mitchell, and Morrison, the language quoted makes it plain that the court is tenaciously holding on to all the power heretofore asserted in this class of cases...
...It is the motive for quitting and the end sought thereby that make the injury inflicted unlawful and the combination by which it is effected unlawful conspiracy...
...275 and cases cited...
...James Fitzjames Stephen, a Justice of the Queen's Bench:6 "A bare agreement, not to work except upon certain specified terms, was, so long as this view of the law prevailed, all that the law permitted to workmen...
...It is to the members of the labor organization what the "Blacklist" is to the employer...
...Roe gives us some decisions that show clearly the trend of the courts.—Editor's Note...
...So also it is held that a strike by the members of a labor union because an employer has, as the union finds, unjustly discharged an employee, and refuses to take him back is unlawful, and will be enjoined.16 "Government by Injunction" ASIDE FROM HOLDING strikes unlawful, because of their object, a favorite practice of the Courts is to declare them unlawful because of the means employed...
...Does the judiciary side with aggregated capital in this great contest to place the workman on an equal footing with the employer in bargaining power...
...provisions which made men liable to summary punishment for promoting strikes...
...Contrast this rule with the employer's right to discharge an employee for any reason, or for no reason...
...Judge Taft's Decision NOW THE CORRELATIVE rights which the employees should possess in order to be on even a substantial equality with the employers is to quit work at any time, for any cause, or for no cause, and in any number, and to publish to all other employees the reason for such action...
...It was the recog-ition of these truths that prompted the promulgation of the proposition we are discussing...
...2 Stephen's History of the Criminal Law, Vol...
...Do the Courts Favor Combined Capital at the Expense of Organized Labor...
...This statute was continued in effect until 1824 when it was repealed and two other statutes were passed, one in 1824 and one in 1825, much less hostile to labor.4 The act of 1825, contained no 1 Canute, 1017-1035...
...22 83 Fed...
...Compare the rules which the Courts have devised for the government of the employer and employees in the contests constantly waged between organized labor and capital...
...Singly, they may boycott...
...Casey v. Typographical Union, 45 Fed., 135...
...Frank v. Denver, etc., Ry...
...Lack of space will permit me to refer to only one of these,—that of Judge Caldwell, in his dissenting opinion in the Oxley Stave Co...
Vol. 3 • August 1911 • No. 32
