OUR JUDICIAL OLIGARCHY, (ELEVENTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY ELEVENTH ARTICLE:—DANGERS OF THE POPULAR DISTRUST OF THE COURTS By GILBERT E. ROE (Copyrighted 1911, The Robert M. La Follette Co.) Are Our Courts Inviting a Conflict with...
...It is entitled to fear, if not to respect: the question will arise, and arise in your day, though perhaps not fully in mine:—which shall rule—wealth or men...
...He visited my office and crawled on his knees and tried to kiss my hand in his efforts to get me to consent to a fine.' In addition to being a leader of a gang of rich smugglers, this defendant was a bail jumper...
...At this point lies the danger...
...Struggle is Upon Us NO ONE doubts that the struggle between wealth and men which Judge Ryan foresaw and eloquently predicted is upon us...
...5 Mr...
...The marshall is appointed by the President and is responsible to the President, and if the latter directs that the particular decree shall not be enforced, and the people support the President, that ends it...
...The mob is the human face in misery...
...In his debate with Lincoln, half a century ago, Judge Douglas speaking of the Dred Scott decision, well expressed the views, then and now, of those who argue that the decision of a Court of last resort is final...
...The Dred Scott Decision WITHOUT DWELLING UPON the controversies between the Courts and President Jefferson, or the later ones waged between the Courts and President Jackson, I call attention only to two or three instances in later years where the opinions of the Courts have been left without support in public sentiment...
...If a sheriff declines to execute the mandate of a State Court, the Court is powerless...
...10 Hepburn v. Griswold, 8 Wallace, 603, and Knox v. Lea, 12 Wallace, 457...
...the power of superintending the judiciary of the States, of annulling their judgments and commanding them what judgments to render...
...An illustration of a more peaceful, but quite as effective a method of setting aside a judgment of the Supreme Court of the United States was given in 1859 by the State of Wisconsin.7 In that case, the Federal Courts undertook to punish a man named Booth, because he had assisted a fugitive slave to escape...
...Give it thy ear, thy hand, thy arm, thy heart...
...There is great fear that it and its great rival have confederated to make partition of the 13 Philadelphia North American, Aug...
...make it spell truth...
...By a divided Court, the law in question was held "inconsistent with the spirit of the Constitution" and therefore, void...
...It is unscrupulous, arrogant, and overbearing...
...Without the confidence, approval and support of the people, all the opinions, decrees and judgments of the courts are only waste paper...
...that corporate franchises bought from corrupt legislatures are sanctified and placed forever beyond recall by the people...
...If our discussion thus far, has meant anything, it has shown that in the conflict between the masses of the people and the beneficiaries of special privilege, the Courts have, according to popular belief, at least, ranged themselves on the side of the latter...
...11 Legal Tender eases, 12 Wallace, 457...
...making the fundamental sovereign powers of government, such as the power of taxation, the subject of barter between corrupt legislatures and private adventurers...
...Industrious wealth has its honors...
...that those injunctions extend to preventing laboring men quitting their employment, although they are liable to be discharged by their employers at any time, thus creating and perpetuating a state of slavery...
...I refer to Judge Seymour D. Thompson...
...has to reverse that decision, since it is made...
...case was brought by Dred Scott, a former slave, to secure his freedom because he had been taken into territory where slavery did not exist...
...3 This was all that it was necessary to decide, but the Court, hoping to shape the political policy of the country on the subject, and to lay down a rule to govern other cases, went further and held in effect that the Missouri Compromise was unconstitutional, and that Congress could not prohibit slavery in the territories.4 This decision is, therefore, strikingly like the recent decisions in the Standard Oil and Tobacco cases...
...p. 427...
...that great trusts and combinations may place their yokes upon the necks of the people of the United States, who must groan forever under the weight, without remedy and without hope...
...We let this property abide by the decision, but we will try to reverse that decision...
...I shall always bow in deference to them...
...7 Ableman v. Booth, 11 Wis., 498...
...The accumulation of individual wealth seems to be greater than it ever has been since the downfall of the Roman Empire...
...In 1862 Congress had passed a law which made United States notes, legal tender in payment of all debts, whether public or private, without regard to when they were contracted...
...Haines, in concluding the chapters of his work just cited, says: "The Courts have been inevitably drawn into the social and economic conflicts arising in the course of our rapid industrial development, and there is an increasing number of instances in which judicial authority is being challenged in such a manner as to make it again the subject of political controversy...
...The former received a prison sentence...
...the power ®f degrading the powers of the two 15 American Law Review, Vol...
...But money as a political influence is essentially corrupt...
...the power of denying to Congress to raise revenue by a method employed by all governments...
...If these suggestions seem unduly pessimistic, I invite your attention to the language of one of the greatest jurists this country ever produced, whose opinions as Justice of the Missouri Court of Appeals are read and quoted wherever the common law prevails, and whose legal text books are authority in every English-speaking Court in the world...
...And the enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economic conquests only, but for political power...
...1 The executive, with its command of the military forces, and Congress, with its control of the revenues, and each with an army of dependent appointees, have the means at hand for the enforcement of their respective policies...
...I cannot dwell upon the signs and shocking omens of its advent...
...government had run well over the million mark, and whose goods were sold to the fashionable trade throughout the country...
...Judges do not even appoint the officers who execute their decrees...
...Alas...
...Three judges dissented...
...5 Lincoln & Douglas Debates, p. 16...
...It so happened that at the time in question, two men were sentenced for the crime of smuggling...
...Already, here at home, one great corporation has trifled with the sovereign power and insulted the state...
...In the cases last mentioned, all that it was necessary to hold was that the acts under consideration violated the Anti-Trust law, but the Court went further, and hoping to shape the political policy of the country on the subject according to its own economic theory, and in order to establish a rule to apply in other cases, held that only certain acts, which the Court in the future might characterize as "undue" restraints of trade, would violate the statute...
...The United States District Attorney protested...
...state and share it as spoils...
...sacrifice everything except justice...
...The Wisconsin officials, acting under the direction of the Supreme Court of the State, simply set Booth at liberty, and though the Supreme Court of the United States repeatedly and very solemnly reversed the decision of the Supreme Court of Wisconsin,8 no one paid any attention to it, and Booth obtained his liberty.9 Legal Tender Cases THE LEGAL TENDER CASES10 illustrate how, by the addition of Republican Judges to a Democratic Supreme Court, an unconstitutional law is converted into a constitutional one...
...THE JUDICIARY is constitutionally the weakest department of the government...
...14 Address of Edward G. Ryan, Chief Justice of the Supreme Court of Wisconsin, delivered before the University of Wisconsin Law School, June, 1873...
...that the power thus seized includes the power of amending the Constitution...
...Rich Man Fined: Poor Man Jailed ON THE 20th of July last, an incident occured in the Federal District Court in New York City which was widely commented upon by the press of the country as tending to prove that there was one law for the rich man and another for the poor one in the Federal Courts...
...that civilisation should have liberty as a queen, and that the servant of ignorance should be the light...
...that progress should have courage as a leader...
...There is danger that the people will see these things all at once...
...Judge Douglas said last night that before the decision he might advance his opinion, and it might be contrary to the decision when it was made...
...The big smuggler was discharged with a fine, $25,000, a fraction of what he had swindled from the government...
...The Mob "SACRIFICE to the mob, O poet...
...Fines for the rich law breaker and prison for the poor one is the general rule...
...Human Rights THE DECISIONS which I have reviewed in these articles constitute the reply which the Courts have made and are making to this progressive movement...
...While judges, and particularly federal judges, are farther removed from popular control than any other public officials, the enforcement of their orders and judgments depends wholly upon the confidence and good will of the people...
...2 Dred Scott v. Sanford, 19 Howard, 393...
...that those powers are being steadily exercised in behalf of the wealthy and powerful classes, and to the prejudice of the scattered and segregated people...
...With last week's article, Mr...
...The judge who imposed the sentences was quite within his right, and was well fortified by precedent for what he did...
...Correct it, warn it, instruct it, guide it, train it...
...nor acquire public confidence and respect which, as the last resort of the justice of the nation, it should possess...
...that trial by jury and the ordinary criminal justice of the States, which ought to be kept near the people, are to be set aside, and Federal court injunctions substituted therefor...
...12 These cases are gathered together and discussed by Charles Grover Haines, in his chapter on "The Conflict Over Judicial Powers," in his ''Studies in History, Economies and Public Law," edited by the Faculty of Political Science, of Columbia University...
...The distinction between the rich law breaker and the poor one, however, in the matter of the sentence imposed after conviction, is insignificant compared with the distinction the law makes between the poor man in the lawful pursuit of a living and the rich one engaged in adding to an already swollen fortune...
...Their resistance ought not to take place as advised by Jefferson, by 'meeting the invaders foot to foot,' but it ought to take place under the wise and moderate guidance of the legal profession, but the danger is that the people do not always so act...
...The editorial, after referring to some further statements of the District Attorney to the effect that the defendant had tried in various ways to reach him, concluded: "We do not insist on the law's pound of flesh...
...4 id...
...I have no idea of appealing from the decision of the Supreme Court upon a constitutional question, to the decisions of a tumultuous town meeting...
...For it is beautiful on this sombre earth, during this dark life, brief passage to something beyond...
...which shall lead— money or intellect...
...Lincoln...
...Where this contest will lead us no man knows, but the Courts seem already to have taken their position in it...
...and sometimes at great cost to the country...
...Unmindful of their experience in the past, they are again inviting a conflict, the consequences of which must certainly be disastrous to them and possibly to the country as well...
...I respect the decisions of that august tribunal...
...John Jay, the first Chief Justice of the Supreme Court of the United States, resigned because the Court had so little power, under the Constitution, that he felt it a waste of time to remain in that office...
...One was a comparatively small offender...
...He said: "As a lawyer, I feel at liberty to appear before the Court and controvert any principle of law while the question is pending before the tribunal...
...The case came up to the Supreme Court of the United States, from the District of Missouri...
...But I am doing no such thing as that...
...The contest has begun for the control of the government as well as the natural resources of this country between organized wealth and the individual demanding the right to live as a free man...
...9 See discussion of Ableman v. Booth with explanatory note in Selected Opinions of Chief Justices Dixon & Ryan of Wisconsin, by Gilbert E. Roe, p. 69-100...
...But on the same day that this million-dollar thief was set free on repayment of part of his stealings the same judge sent a poor little consumptive Greek to jail for frauds trifling in comparison...
...We will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed...
...The Anti-Trust law, the laws regulating public service corporations, and shortening the hours of labor, workmen's compensation laws and many similar measures, together with the movement for the conservation of our natural resources, and the attempts to break down our tariff wall, and the measures looking to the more direct control of the government by the people, such as direct primaries, the initiative, referendum and recall,—all these merely represent the efforts of the masses to break the grip which organized wealth has upon our government, and upon the natural resources of the country...
...the power of superintending the action, not merely of Congress, but also of the State Legislatures...
...If I wanted to take Dred Scott from his master, I would be interfering with property, and that terrible difficulty that Judge Douglas speaks of, of interfering with property, would arise...
...They represent in part the beginning of the movement to free men from the dominion of corporate wealth and power...
...that intelligence should have honour as a sovereign...
...Both sentences were imposed on pleas of guilty...
...by far the most dangerous to the free and just administration of the law...
...As a matter of fact, while the dramatic features attending the imposing of the above-mentioned sentences caused the affair to be generally commented upon in the press of the country, there was nothing unusual about it...
...The Judiciary has no such power...
...the latter was merely fined twenty-five thousand dollars...
...put it to the school of honesty...
...and we mean to reverse it, and we mean to do it peaceably...
...The Court held that Dred Scott was not a citizen of Missouri and "not entitled as such to sue in its Courts, and consequently that the Circuit Court had no jurisdiction of the case...
...These it is the duty of the law to assert and protect, though wealth has great power of self protection and influence beyond the limits of integrity...
...Just so...
...When one considers how the work of building up a Judicial Oligarchy has gone forward since Judge Thompson used the language quoted above, it must be admitted that we have steadily advanced toward the realization of the dangers he pointed out...
...it is one of the most dangerous to free institutions...
...but after it was made, he would abide by it until it was reversed...
...Are Our Courts Inviting a Conflict with Public Opinion that is Fraught with Dangers...
...1, 1911...
...p. 447-454...
...Sacrifice to that unfortunate disinherited, despairing mob, if it must be, and when it must be, thy repose, thy fortune, thy joy, thy liberty, thy life...
...all that I am doing is refusing to obey it as a political rule...
...The other was one of a syndicate of smugglers whose known and proved smuggling amounted to $1,400,000 worth of gowns and millinery goods...
...see them present a spectacle not unlike that of Nero fiddling while Rome burns...
...houses of Congress, in making those investigations which they may deem accessory to wise legislation, to the powers which an English court has ascribed to British Colonial legislatures...
...teach it to read virtue, probity, generosity, mercy, hold thy book wide open...
...Then by the simple device of adding two judges to the bench who were known to be favorable to the law, the question was again brought up and the law was held to be constitutional.11 Courts Provoke Conflict THE ATTEMPTS of the Court to interfere with the reconstruction policy of the Government following the Civil War and the disastrous consequences to the Courts, is a familiar chapter of American History.12 Concerning the tendency of the Courts, during the last few years to again provoke a conflict with public sentiment, Prof...
...Ryan's Memorable Prophecy THE DISTINCTION that was made by the New York Court in the afore-mentioned cases is being made every day in the year throughout the Courts of the country...
...it suffers so much, and it knows nothing...
...holding that a venal legislature, temporarily vested with power, may corruptly bargain away those essential attributes of sovereignty and for all time...
...In his address to the State Bar Association of Texas, in 1896, Judge Thompson reviewed the cases decided up to that time, showing the tendency of the Courts to override and control the other departments of government and to protect property rights at the expense oF human rights, and concluded his address as follows:15 "The dangerous tendencies and extravagant pretensions of the Courts which I have pointed out ought not to be minimized, but ought to be resisted...
...6 People Reversed That Decision UNFORTUNATELY all the people were not as wise, nor as temperate as Mr...
...The other was a rich man, a member of a very large importing firm whose frauds on the 6 From a speech delivered by Mr...
...He was tendered a reappointment by President Adams in 1800, but declined it, saying: "I left the Bench perfectly convinced that, under a system so defective, it would not obtain the energy, weight and dignity which was essential to its affording due support to the national government...
...He pleaded guilty to frauds on the government in the weighing of importations of figs and cheese...
...neither had the most objectionable decisions been rendered against organized labor and the courts had barely entered upon the work of destroying state statutes regulating great corporations...
...Independent of the popular will in the tenure of their office, but wholly dependent upon it for the enforcement of their judgments, the judges are constantly tempted to a conflict, in which they must always be worsted...
...EDITOR'S NOTE...
...Do everything for it except evil...
...In the same editorial, it is said: "Once let the people be thoroughly convinced that their Courts are not impartial, that there is one law for the rich and another for the poor and the seeds of revolution will have been sowed...
...If a United States marshall should decline to execute the decree of a Federal Court, what could the Court do about it...
...We see their colors, we hear their trumpets, we distinguish the sound of preparation in their camps...
...Property Rights vs...
...For the first time really in our politics, money is taking the field as an organized power...
...I quote from one of the numerous editorials on this subject.13 "On July 20th, while he (the Federal Judge) sat in the United States District Court in New York, two men were brought up for sentence for smuggling...
...The sheriff is elected by the people of a county, and is usually removable by the governor of the state...
...I would rather see the defendant get one day in jail than be let off with a million-dollar fine...
...There is danger, real danger, that the people will see at one sweeping glance that all the powers of their government, Federal and State, lie at the feet of us lawyers, that is to say, at the feet of the judicial oligarchy...
...who shall fill public stations—educated and patriotic free men, or the feudal serfs of corporate capital...
...The decision was reversed, but it was not reversed "peacebly...
...If the people and the governor support the sheriff in his refusal to execute the order of the court, the order will remain unexecuted and will accomplish nothing...
...The little smuggler was sentenced to three months in prison...
...Somebody 3 id...
...Dangers Ahead...
...see their enrobed judges doing their thinking on the side of the rich and powerful...
...show it the alphabet of reason...
...see them look with solemn cynicism upon the sufferings of the masses, nor heed the earthquake when it begins to rock beneath their feet...
...AT THE TIME this language was used the employers' liability law, the workmen's compensation law, and the laws regulating employment in various industries had not been nullified by the courts...
...In his next article, Mr...
...In the fallowing article he points out some of the dangers that grow out of this distrust...
...Be there attentive, vigilant, kind, faithful, humr ble...
...Wealth has its rights...
...Almost forty years ago, one of the greatest judges this country ever produced, in a memorable address,14 thus foreshadowed the present crisis: "There is looming up a new and dark power...
...8 Ableman v. Booth & United States v. Booth, 21 Howard, 506...
...Lincoln represented and stated the opposite view many times, and in various forms...
...It is beautiful that force should have right for master...
...The Dred Scott case is a familiar example.2 This 1 Pellew, Life of Jay, p. 337-338...
...One was a poor man, far gone with consumption, whose frauds on the government had been trifling...
...Victor Hugo...
...Roe finished presenting the reasons why there is popular distrust of the courts in this country...
...Lincoln at Chicago, 111., July 10, 1858...
...Sacrifice to it thy gold, and thy blood, which is more than thy gold, and thy thought, which is more than thy blood, and thy love, which is more than thy thought...
...but when the decision is made, my private opinion, your opinion, all other opinions must yield to the majesty of that authoritative adjudication...
...He said: "I have expressed heretofore, and I now repeat, my opposition to the Dred Scott decision...
...697-699...
...The mob is the great victim of darkness...
...You should read it very carefully, particularly what is said by fudge Ryan and fudge Thompson on this point...
...that conscience should have duty as a despot...
...The mob is the mournful beginning of the people...
...This statute, after having been accepted by the people, and most of the State Courts, as valid for a number of years, was, in 1869, attacked in the Supreme Court of the United States as unconstitutional...
...We have no notion that the law should be vindictive...
...Hence, I am induced to doubt both the expediency and propriety of my returning to the Bench under the present system...
...30, pp...
...There is danger that the people will see all this at one sudden glance, and that the furies will then break loose and that all hell will ride on their wings...
...Roe will discuss the remedies for the present popular distrust of the Courts...
...In popular governments, evils are often borne with stolid patience until a culminating point is reached, when the people burst into sudden frenzy and redress their grievances by violent and extreme measures, and even tear down the fabric of government itself...
Vol. 3 • August 1911 • No. 34
