OUR JUDICIAL OLIGARCHY, (TENTH ARTICLE)
OUR JUDICIAL OLIGARCHY TENTH ARTICLE:—WHY THE PEOPLE DISTRUST THE COURTS By GILBERT E. ROE (Copyrighted 1911, The Eobert M. La Follette Co.) Our Judges Have Assumed a Power Which Makes Their...
...Webster thought little of the point and devoted but small space to it in the argument and in his brief.15 He seems to have depended more upon other legal points, but particularly he sought to inflame the passions of the Chief Justice and arouse his well known hostility to Jefferson...
...We seldom stop to think that the twin pillars upon which the whole structure of Special Privilege rests in this country, are two decisions of the Supreme Court of the United States...
...About the year 1800, two factions in the Board of Trustees arose...
...accorded judicial aid, either as organizations or as individuals, to prevent blacklisting by a combination of employers...
...17 Dubuque v. Railroad Co., 39 Iowa, 95, 96...
...and a clause of the federal constitution whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil...
...So delicately did he do it that an attentive listener did not realize that he was straying from the field of 'mere reason' into that of political passion...
...Concerning the motives of the members of the Board of Supervisors of San Francisco in passing an ordinance alleged to have been improperly secured, the Supreme Court of the United States recently said:10 "Their motives, considered as the moral inducement for their vstes, will vary with the different members of the legislative body...
...While the foregoing was intended s a summation of the law of Massachusetts on the subject, it practically states the law of the whole country on the subject as well, and is certainly as liberal to the employees as the rules laid down by the Federal Courts...
...Munsey v. Clough, 196 U. S., 364...
...For the faithfulness and honesty of their public acts, we repeat, they are responsible to the people alone and not by means of a trial before the Courts...
...Webster knew the chord to strike, and he touched it with a master hand...
...Every privilege granted or right conferred—no matter by what means or on...
...1HAVE SIMPLY tried to gather together, on this branch of the discussion, sufficient of the decisions to show the general and well settled rules of law which the Courts have devised in this country to govern trade disputes between capital and organized labor...
...2 158 u. s, 564...
...4 Pettibone v. Nicholas, 203 U. S, 192...
...They are not permitted to enter upon a merely sympathetic strike against employers with whom they have no trade dispute, and a strike to secure to the Union the right to pass upon grie\ances between individual members and their employers is considered a sympathetic strike...
...Neither have I dealt with the cases permitting laborers to be kidnapped in order that they might be placed on trial in localities where they could not have lawfully been taken for trial.4 These cases and others like them have aroused great bitterness on the part of the working classes against the Courts and have been thoroughly discussed in the labor and radical press of the country...
...The judges have assumed a power which makes their will superior to the popular will...
...For many of the facts here stated, I am indebted to the excellent Life of Webster by Henry Cabot Lodge.13 In this work, Mr...
...This provision was immediately seized upon by the courts and made to include corporations, and thereby grants and franchises to corporations have been rendered more valuable even than under the authority of the Dartmouth College decision...
...Thereafter, an action was brought, apparently collusive in character, by one Fletcher, against the defendant Peck, from whom Fletcher purchased certain of the lands in 6 The Rationale of the Injunction, by Wm...
...At any rate, the Legislature, as soon as it assembled the succeeding year, immediately passed an Act to rescind the sale of the year before, setting forth in great detail the fraud and bribery by which the sale had been effected...
...Also hearings May 27th and 29th, 1911, on House Resolution No...
...12 Report of this case is re-printed With arguments of counsel 65 N. H., 473...
...Without going further into the details of this unpleasant transaction, suffice it for our purposes, that the work of influencing the judges was well done, and finally resulted in bringing all of them, except two, into agreement with the Chief Justice...
...Webster played upon the prejudices of the Chief Justice, because of his intense Federalism, Mr...
...Law Review...
...15 See also Dartmouth College Case Causes, by John M. Shirley...
...He depicted the party assault that was made upon her...
...Nevertheless, the Court lent itself to the purpose of the suit and decided the case...
...p. 88...
...I have not stopped to call attention to the inconsistency between the decision in the Debs case,2 wherein it is held that the control of Congress over Interstate Commerce is so complete that it may regulate the conduct of the employees engaged therein to the extent of enjoining them from going on a sympathetic strike, and the decision in the Adair case,3 wherein it is held that Congress has so little power over the conduct of those engaged in Interstate Commerce that it cannot lawfully forbid EMPLOYERS engaged therein discharging employees, merely because of the employees' membership in a labor union...
...Roe will discuss the dangers growing out of the popular distrust of the Courts...
...They will not be 1 Robertson v. Baldwin, 165 U. S., 275...
...The divers character of such motives and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable...
...The first President, Eleazer Wheelock, who was named in the charter and was given the privilege of appointing his successor, died in 1779, having appointed his son, John Wheelock, to succeed him...
...Our Judges Have Assumed a Power Which Makes Their Will Superior to the Popular Will IN ENGLAND IT IS DIFFERENT IN DISCUSSING the decisions of the Courts relating to industrial disputes, I cannot, of course, refer to all the cases on the subject...
...In the opinion, the Chief Justice says: "That corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored...
...10 Soon Hing v. Crowley, 113 U. S., 703-711...
...They are not permitted, in even a lawful strike, to employ pickets to persuade men not to take employment as strike breakers, nor to maintain banners before an establishment giving notice of a strike in progress there...
...what pretense—being made inviolable by the constitution, the government is frequently found stripped of its authority in very important particulars by unwise, careless and corrupt legislation...
...As the Courts declared that for every corrupt act, legislators were responsible to the public alone, the public was certain speedily to replace the unworthy legislators with worthy ones, and the latter might protect the public interests by repealing the grants which had been corruptly made...
...Lodge referred in the above quotation...
...They are not permitted to exact by strike the payment of a penalty by an employer for violation of Union regulations...
...Justice Cole, of the Iowa Supreme Court, said: "The piactical effect of the Dartmouth College decision is to exalt the rights of the few above those of the many," and that "under the authority of that decision, more monopolies have been created and perpetuated and more wrongs and outrages upon the people affected, than by any other instrumentality 'in the government...
...I have not referred to the sailors' case,1 wherein it is held that the constitutional prohibition against "slavery" and "involuntary servitude" does not apply to sailors and that this class of laborers may still be held to involuntary servitude...
...In his next article Mr...
...or would interest or undue influence of any kind be sufficient...
...The Supreme Court of New Hampshire decided the case against the Trustees and in favor of the Wheelock, anti-Federal and Presbyterian faction.12 What Did Webster "Leave Out...
...and political friends and how certain pamphlets and arguments were sent to some and not to others, although the case had been closed and taken under advisement...
...Either there was some doubt in the Court's mind as to the innocent character of Peck's purchase from the others, or for some other reason the Court thought it necessary to go further and discuss the question of how far, if at all, grants by the Legislature of a State, procured by bribery, could be inquired into...
...9 Sunbury& Erie R. R. Co...
...Webster by one of the trustees, who was not a lawyer, and that Mr...
...the other three judges, Johnson, Livingston and Story, were known to be adverse to the college, but were possible converts...
...These rules speak for themselves...
...Mr...
...The Fletcher Case IN 1795 the Legislature of Georgia sold about 500,000 acres of public land belonging to that state to various parties and it was subsequently claimed that the legislators had been unduly and corruptly influenced to make the sale by the purchasers of the land...
...Of course the jacobins mentioned by Webster in his argument were the followers of Jefferson and the free-thinkers were Governor Plumer and his supporters, who were then carrying on a struggle for equality of religious denominations in New Hampshire...
...must be voidable, for nothing is better settled in the law than that fraud vitiates every contract...
...Fastening Privilege Upon the People GHANCELLOR KENT, speaking approvingly of the Dartmouth College case, shortly after its rendition, said: "The decision in that case did more than any other single act proceeding from the authority of the United States, to throw an impregnable barrier around all rights and franchises derived from the grant of government...
...Trickett, Dean of Dickinson's School of Law, Carlysle, Pa., 42 Am...
...18 Cooley Constitutional Limitations, 279-80 n. If a charter is a contract, then it would seem that every charter procured by fraud...
...lished that the bribery and corruption by which any grant or valuable right is obtained from a Legislature, national, state or municipal, will not be examined into by a Court for the purpose of relieving against the fraudulent or corrupt transaction...
...See also U. S. v. Rauscher, 119 U. S., 419...
...It appears to me to bear strong evidence upon the face of it of being a mere feigned case...
...would have been sufficient for the decision, of course, to hold, if such was the fact, that the defendant, Peck, was an innocent purchaser of the lands from those who acquired them originally of the State, and let the decision stop at that point...
...A Gain for Vested Interests THE SUGGESTION of the Chief Justice, concerning the inability of a Court to grant relief against the corrupt grants of the Legislatures, were seized upon by the Courts, and the rule which he suggested, speedily became the settled law.8 In an early case wherein a railroad company had bought valuable privileges from a Legislature, the Court, when applied to by the public for relief, said:9 "Official morality in us requires that we shall not assume the authority to judge of the official morality of the Legislature...
...This was the 'something left out,' of which we know the general drift, and we can easily imagine the effect...
...5 Labor questions in the Courts of Massachusetts, by Arthur March Brown, 42 Am...
...6 published in pamphlet form, relating to the extradition of John J. McNamara...
...The jey of battle must have glowed once more in the old man's breast as he grasped anew his weapons and prepared with all the force of his indomitable will to raise yet another constitutional barrier across the path of his ancient enemies...
...Once more it was Marshall against Jefferson—the judge against the president...
...18 16 1 Kent...
...v. Cooper, 33 Pa...
...The "Twin Pillars" of Special Privilege TURNING NOW to the class of cases which deal with "property interests" and "vested rights" we find no lack of initiative and enterprise on the part of the Courts in protecting and advancing such rights...
...The occasional conviction of a petty Legislative bribe taker or bribe giver, always the agent of someone higher up, is usually made the occasion for the Court to lecture the convicted party upon the serious nature of his offense...
...It is our duty to decide on the rights, but not on the speculations of parties...
...Under the rule of Fletcher v. Peck, however, a charter cannot be invalidated because it was procured by fraud, no matter how gross or open the fraud may be...
...Then he had seen the angry wave's of popular feeling breaking vainly at his feet...
...The charter provided for the government of the institution by twelve trustees...
...The old anti-Wheelock Trustees refused to take part in the reorganization of the college, and finally brought an action against Woodward, secretary and treasurer of the corporation, as it was reorganized, under the new Board of Trustees, to recover the corporate books and other corporate records...
...or on what number of the members...
...Then began a campaign to "get at," to use the expression of Mr...
...After a while the struggle took on a political tinge, and the faction of President Wheelock became identified with the anti-Federalists and the other faction was strongly Federal...
...It may well be doubted, how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice...
...Lodge says: "The whole business was managed like a quiet, decorous political campaign...
...8 Cooley Constitutional Limitations, 7th Edition, p. 257, and cases cited...
...The Court is properly indignant at such an offense, but it must always be remembered that without the decisions I have mentioned, and the body of law built thereon, bribery of Legislatures would be practically unknown, for it would be neither safe nor profitable to those great interests which usually suggest the crime, and always profit by it...
...Lodge, enough of the ether judges so that uniting with the Chief Justice, they might constitute a majority...
...While the Federalists were in control of the State, the Board of Trustees assumed to remove President Wheelock from office...
...To guard against such calamities in the future, it is customary now for the people in forming their constitutions, to forbid the granting of corporate powers, except subject to amendment and repeal, but the improvident grants of an early day are beyond their reach...
...Would the act be null, whatever might be the wish of the nation...
...which shall serve,—the master or the servant...
...Webster was fully aware that he could rely, in any aspect of the case, upon the sympathy of Marshall and Washington (Associate Justice Bushrod Washington...
...Closing the Door of Hope ANOTHER CASE soon arose, however, in which a doctrine was announced which closed this door of hope to the public.11 That case arose out of a sordid contest, semi-political and semi-religious in character, among the Trustees of Dartmouth College to obtain control of that institution...
...Webster boldly and yet skillfully introduced the political view of the case...
...Lodge says: "Mr...
...Thus, through the mere dictum of the Court in the collusive action of Fletcher v. Peck, has the law become estab• Fletcher v. Peck, 6 Cranch, 87...
...Dartmouth College was founded in 1796 by virtue of a charter by the then Governor of New Hampshire in the name, of course, of the English King...
...Mr.Lodge shows that the point upon which the case was actually decided, namely that a charter was a contract and consequently that under the Constitution, no law could be passed which impaired it, was really suggested to Mr...
...We hear much in these days of the dangers arising from great wealth and of the menace Special Privilege is to our institutions...
...Getting at" the Judges BUT AFTER ALL had been said and done, the Court, Mr...
...Couple with this proposition the further one originating in Fletcher v. Peck, that however fraudulent the means by which such franchise, charter or privilege was acquired, the court was powerless to give relief because of the fraud, and you have the foundation upon which our colossal fortunes rest, which grow out of special privilege...
...Fletcher v. Peck made bribery of Legislatures safe for the great interests engaged in it, and the Dartmouth College case made it profitable...
...The restrictions they place upon labor have been recently summarized by an able law writer as follows:5 "They (employees) are not permitted to strike to compel men to join the Union...
...With us, however, the case is different...
...This doctrine soon came to be applied to the acts of boards of aldermen and municipal legislatures generally...
...Warren v. U. s., 183 Fed., 718...
...Lodge says:14 "In the midst of all the legal and constitutional arguments, relevant and irrelevant, even in the pathetic appeal which he used so well in behalf of his alma mater, Mr...
...He showed the citadel of learning threatened with unholy invasion and falling helplessly into the hands of jacobins and free-thinkers...
...This, of course, was a tremendous gain for what is termed property rights and vested interests, but there was still the possibility that a succeeding Legislature would rescind the corrupt act of its predecessors and thereby destroy the value of that which had been corruptly obtained...
...Hie anti-Federalists in 1816, elected William Plumer to the office of Governor and the new Governor and the Legislature passed acts amending the college charter, the principal effect being to increase the number of trustees, from twelve to twenty-one, and Wheelock, was restored to the position of President of the College...
...The official morality of the judges, so they say, will not permit them to inquire into the official morality of the members of the Legislatures...
...Law Review, 706, p. 733...
...The dissenting opinions in the Pettibone, Robertson and Adair cases certainly show that there is some foundation for the hostile criticism which has been leveled at the Court's acts in these and kindred cases...
...The case was then decided...
...3 208 U. S., 161...
...DANIEL WEBSTER, a graduate of the college, had been retained by President Wheelock, sometime before the passage of the act increasing the Board of Directors, but when the litigation began, was induced to abandon Wheelock and espouse the cause of the Federalist faction of the Board...
...Hyatt v. Cochran, 188 U. S., 691...
...Lodge gives this further description of Mr...
...Turn now to the statement of what the employer may do, and you read that he has an unrestricted right to discharge, to blacklist and to lock out his employees, and that the injunctive process of our Courts with its arbitrary and despotic power to punish and imprison without a jury trial, is always at his command.6 Just as the English judges of the last century seemed incapable of understanding that the "Statute of Labourers" had been repealed and that the day of individual contract between employer and employed had arrived, so our judges seem unable to grasp the idea that individual contract between employer and employed has been superseded by collective action...
...St., 278...
...Then followed the Fourteenth Amendment to the Constitution, designed for the protection of the recently freed slaves, providing in substance that no state should deprive "any person of life, liberty or property without due process of law" or "deny to any person within its jurisdiction the equal protection of the laws...
...or would its obligation or nullity depend upon the public sentiment...
...In occasional sentences he pictured his beloved college under the wise rule, of Federalists and the church...
...Shirley, in his work already cited, gives an excellent account of this process, and tells us how the judges were seen by personal 14 id...
...Comm., 419...
...Here no man could equal him or help him, for here his eloquence had full scope, and on this he relied to arouse Marshall, whom he thoroughly understood...
...Webster and the old Board of Trustees...
...If the majority of the legislature be corrupted, it may well be doubted, whether it be within the province of the judiciary to control their conduct and, if less than a majority act from impure motives, the principles by which judicial interference would be regulated, is not clearly discerned...
...The Federalists had gained a signal political victory...
...Further referring to the manner in which Mr...
...The states organized after the Dartmouth College decision, were able, as Judge Cooley says, to guard themselvves against the consequences of that decision by providing in their constitutions against the granting of corporate powers, except as they were subject to amendment and repeal...
...Which Shall Rule: Courts or People...
...Lodge concludes, was five to two against Mr...
...Jacobinism was raising its sacrilegious hand against the temples of learning, against the friends of order and good government...
...The English judges, however, could offer but feeble opposition to the advance, of the new order, for the Legislative branch of that government was supreme, and its laws were as binding upon the judges as upon the humblest individual in the land...
...The first point was to increase the sympathy of the Chief Justice to an eager and even passionate 11 Trustees of Dartmouth College v. "Woodward, 4 Wheaton, 517...
...The words of the speaker carried him back to the early years of the century, when, in the full flush of manhood, at the head of his court, the last stronghold of Federalism, the last bulwark of sound government, he had faced the power of the triumphant Democrats...
...Webster's argument: "As the tide of his resistless and solemn eloquence, mingled with his masterly argument, flowed on, we can imagine how the great Chief Justice roused like an old warhorse at the sound of the trumpet...
...The Chief Justice, however, succeeded in preventing a decision and the Court adjourned for the term...
...Now, in his old age, the conflict was revived...
...13 Life of Webster in American Statesman Series, p. 1. support...
...If the principle be conceded, that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect...
...question, and Peck, in his turn derived title from the original purchasers.7 Concerning the collusive character of the action and its apparent purpose not to settle any real controversy, but to establish the validity of the titles procured through the fraudulent purchase, the Chief Justice, in his opinion, said: "I have been very unwilling to proceed to the decision of this cause at all...
...17 A little later, that greatest of Constitutional Lawyers, Judge Cooley, said: "It is under the protection of the decision in the Dartmouth College case that the most enormous and threatening powers in our country have been created...
...They have raised the issue,—which shall rule,— the people or the judges...
...Chancellor Kent, himself an intense Federalist, was brought into the matter, and his influence was brought to bear upon some of the judges of the Supreme Court...
...He was equally certain of the unyielding opposition of Duvall and Todd...
...One was headed by President Wheelock, who was a Presbyterian, while his opponents in the Board were Congrega-tionalists...
...More than all, however, the doctrine had been declared that every charter, franchise, and privilege, such as exemption from taxation, and the like, which any corporation could secure from a Legislature, was a contract and could not be in any way impaired by subsequent legislative action...
...If our Courts have been reactionary where the rights of the individual were concerned, they certainly have been progressive where the rights of property were involved...
...Webster in publishing his argument in this case always admitted that there was "somthing left out" and it is this ex-pressien to which Mr...
...Then he had preserved the ark of the Constitution...
...some of the great and wealthy corporations actually having greater influence in the country at large, and upon the legislation of the country, than the states to which they owe their corporate existence...
...16 Some fifty years later, Mr...
...Must the vitiating cause operate on a majority...
...Must it be direct corruption...
Vol. 3 • August 1911 • No. 33
