The Menace of Privilege Chapter Thirteen second part
|January 9, 2007||Posted by Staff under Progress Report, The Progress Report|
The Menace of Privilege, by Henry George Jr.
We are pleased to present, in installments, a very rare yet significant book written by former Congressman Henry George Jr. in 1905.
Earlier installments are available at the Progress Report Archive.
end of CHAPTER 13, GOVERNMENT BY INJUNCTION
Legalized Mistreatment of Workers
The strike in the north involved the mines of the Clarksburg Fuel Company, and the fear of that corporation was not from what the weak local mine workers’ union would do, but what President John Mitchell and his fellow-officers and organizers of the United Mine Workers of America would do. Even if a State court could be induced to issue a drastic enough injunction, which seemed more than doubtful, the arm of such a court would not reach far enough.
So to a Federal court the mining corporation made appeal. Here came the trick. The Clarksburg Fuel Company, being incorporated in West Virginia, could not proceed in a United States court against its striking employees who were citizens of its own State. But the Guaranty Trust Company of New York had a mortgage for $2,500,000 against the Clarksburg Fuel Company for money loaned to the latter. The Fuel Company complained to the Guaranty Company that if the strike continued, interest payments on the debt would probably have to be suspended. Whereupon the Guaranty Company petitioned United States District Judge Jackson for a sweeping injunction against the officers and organizers of the miners’ national organization, and obtained it.
Some of the organizers ignored this order, or at least, Judge Jackson chose to consider that they did. He had them arrested for contempt of court and sentenced them to imprisonment. Appeal was taken to the United States Circuit Court, Nathan Goff being the judge. The ground of the appeal was that Judge Jackson had no jurisdiction to issue such an enjoining order. Argument was made that in all cases like this, involving mortgagee and mortgagor, the mortgagee cannot act without making the mortgagor a party; that the Clarksburg Fuel Company was therefore an indispensable party to the suit; that it was so shown to be in the spirit and wording of the original prayer for an injunction, the Guaranty Trust Company asking protection for property and privileges not its own, but belonging to the Clarksburg Fuel Company; that since the Fuel Company was properly a party to the suit, it had no standing in a Federal court as against the prisoners, but must seek protection in a court of the State of West Virginia.
This argument was of no avail. Judge Goff ignored the question of jurisdiction. He recognized only the fact that the prisoners had been in contempt of Judge Jackson’s restraining order, and he refused to release them.
I attended the argument of this remarkable case at Clarksburg, and talked afterward with a distinguished member of the State bar about it. He summed up the matter in this way: “It is just as if a farmer of Iowa should send word to an Eastern mortgage company from whom he had obtained a loan, that his farm hands had demanded more pay, and, on being refused an increase, had left him, making it impossible for him to meet the interest on his loan, unless the mortgage company should obtain an order from a United States court putting so many restraints upon the movements and utterances of the farm hands as to force them back into the farmer’s employ. And if this form of the injunction principle can be applied by the farmer against his withdrawing field hands, it may also be used by a mill owner against his striking mill hands, and by a factory owner against his striking operatives.”
But while this will indicate why Federal courts are preferred for enjoining orders, it is nevertheless a fact that from some of the State courts have issued extraordinary injunctions. A type of these was an order from Superior Court Judge Elmer of Connecticut, in a strike of street railroad men in Waterbury against a great company called the Connecticut Railway and Lighting Company. In an omnibus order, this judge enjoined practically every trade unionist in Waterbury, as well as every sympathizer, against “any act or language” intended to prevent persons from taking the strikers’ places; “against boycotting the plaintiff or its employees, either by threats, intimidation, unlawful persuasion or otherwise; against giving any information, directions, instructions or orders to any committee, association, confederate or other person or persons for the purpose of effecting any of the acts or things hereby enjoined.” Judge Elmer attached a $10,000 penalty to the infraction of his order. At the same time that the railroad corporation obtained this enjoining order the railroad men’s union and all the other trade unions of the city which had been contributing money toward a strike benefit fund were made parties to a damage suit by the Connecticut Railway and Lighting Company for $25,000.
(A sensation has been occasioned in the British industrial world by the decision of the House of Lords that a trade union could be sued “in its registered name,” even though not incorporated. This is a well-established principle in American law. Section 1919 of the New York Code of Civil Procedure allows an unincorporated association to sue or be sued. Other sections provide that where the funds of the association are not sufficient to meet the findings in the suit, then an action for the deficiency will lie against the effects of the individual members. Similar laws exist in the other States.)
Many more instances of the development of the injunction principle by the Federal courts, and emulated by the State courts, could be given. And it should be remembered that all this has come about within the last seventeen years. The rule of the injunction in labor disputes has been coincident with the era of trust combination.
Privilege, seeking to rob and rule in all provinces, has seized the courts for a weapon against rebellious labor unions. And by the irony of fate, it has made the peculiar bludgeon of its injustice and for strike breaking that very department of the legal institution that was created to succor the weak and lowly when they had no remedy in the regular processes of law. The old equity maxims must in the light of much of the present practice be changed: not “Equality is equity,” but “Inequality is equity”; not “He who asks equity must do equity,” but “He who asks equity may do inequity”; not “He who comes into a court of equity must come with clean hands,” but “He who comes into a court of equity may come with soiled hands” – with hands defiled with avariciousness and injustice.
Avoiding a Jury
For, says Judge Seabury, in the article already quoted, these enjoining orders issued out of courts of equity violate fundamental rights. “Assuming, for the sake of argument, that in every instance the workmen were engaged in acts in violation of the criminal law, these injunctions were unnecessary and unjustifiable. If the acts were not criminal, then the theory upon which the injunctions were issued is incorrect, and they were admittedly without justification. If the acts were criminal, the criminal law provides the punishment to be imposed and the procedure to be followed. The fact is that the only reason for issuing injunctions in those cases, where the prohibited acts are in violation of the criminal law, is to dispense with a trial by jury.
“Consider the protection with which the law, as a result of centuries of struggle and experience, safeguards the liberty of the lowest citizen. If he is charged with a crime, there must be a hearing before a magistrate, a grand jury must be satisfied that a crime has been committed, and that reasonable ground for believing the accused guilty exists. Upon the indictment found by the grand jury he is tried by a petit jury, and even their verdict, if improperly arrived at or contrary to the law, may be set aside upon appeal. This protection safeguards the rights of one accused even of murder.
“How different is the new method, introduced by these injunctions. A judge sitting in his chambers, upon the ex parte application of a private person or corporation, makes an order commanding not only the defendant in the suit, but all the world, to do or refrain from doing certain things which are specified in the order. Those violating the order are summarily arrested and brought before the judge whose ukases they are accused of violating. He inflicts punishment upon them. He is judge, jury and executioner, and if he had jurisdiction, his acts cannot be reviewed upon appeal, and the accused is not entitled to counsel. The committing magistrate, the grand jury, the petit jury, the right of appeal and the right to have counsel are all dispensed with.
“Under this system a person can be punished twice for the same offense. (Article v of the Amendments to the Constitution of the United States reads “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Article VI of the Amendments reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) He may be fined or imprisoned summarily for contempt in disobeying an injunction issued against him, and for the criminal offense charged he may be fined and found guilty and be subjected again to fine or imprisonment, or both.
“The sweeping character of these injunctions may be realized, when it is recalled that they are issued not merely against the parties to the action, but against all mankind. In the Debs case, the injunction was issued against all the persons named in the bill, and against all the members of the American Railway Union who were engaged upon twenty-three railroad systems, and, lest some should be forgotten, against ‘all other persons whomsoever.’
“In no legal sense is such an order an injunction at all. It is simply a general police proclamation, putting the community in general under peril of punishment for contempt if the proclamation is disobeyed.”
If it be said that many of these injunctions were only temporary, and were never made permanent, the reply is that they would probably have been made permanent on application. But in most labor wars a temporary injunction serves all the purposes of those who obtain it, since the temporary paralysis into which obedience to it casts the trade union is as fatal to the strike as disobedience which brings immediate arrest for contempt, and summary arraignment and punishment.
Governor Sadler of Nevada put the case in essence when in 1897, during a coal miners’ strike, he said. “The tendency at present is to have committees make the laws and to have the courts enforce them by injunction.” Who are those committees? The privileged corporations.
And not only are they potent enough to capture and use the courts in this way, but they have been powerful enough to prevent thus far recapture by the people. The Supreme Court of West Virginia declared unconstitutional a law passed by the Legislature in 1898 to restrict the use of injunctions. The courts were held to be coordinate with the Legislature, which therefore had no right to restrain the powers of the judiciary, or to prevent the judiciary from protecting itself by proceedings in contempt. If a State Supreme Court can take this ground, why may not the Supreme Court of the United States do likewise, if any bill really curtailing the “restraining” power now exercised by the Federal judiciary shall ever get past the committee stage in Congress and be enacted into law?
And furthermore, let it be noted that if this is the way the courts are used and abused by Privilege against unions and for its own power and glory, there would be small hope of such unions obtaining redress of their grievances through compulsory arbitration courts or through incorporation, the institution of which is urged by monopoly speakers and organs, with protestations of disinterestedness. Reading the future by what we have witnessed in the past, labor union incorporation and compulsory arbitration courts would prove to be only additional weapons in the crowded arsenal of Privilege.
Most assuredly remedial measures must be but patchwork and ineffectual so long as Privilege exists, to create, to adapt, to pervert to or for its own continuance and benefit. So long as Privilege exists, it will crowd and oppress unorganized labor. So long as it exists it will, where it cannot make terms satisfactory to itself with organized labor, use and abuse the powers of the courts to club laborers into submission.
Indeed, we have recently witnessed how the combined railroad, mining and smelting monopoly powers in the State of Colorado used the injunction power to strike at the ballot itself. This was done on the theory of protecting the political prerogatives of the sovereign people — the kingly prerogatives which the American people derive from the common law of England. (See signed letter from Denver by Louis F. Post in the The Public, Chicago, Dec. 3, 1904 (p. 547, seventh year).) On this plea two of the three judges of the Supreme Court enjoined certain persons from committing election frauds in the gubernatorial election there in the fall of 1904 — election frauds that were crimes under the law. After the election the two judges who had issued the injunction ordered all the ballots of certain voting precincts to be thrown out; not because the vote was tainted by fraud, as was commonly believed, nor yet because the statutes authorize such action, for they do not. The exclusion was made solely on the ground that acts were committed in those precincts in violation of the injunction.
Said a brilliant publicist at that time, Mr. Louis F. Post of Chicago: “The integrity of elections in Colorado is by that decision removed from the protection prescribed by the election statutes; and the function of regulating the voting at elections and determining the results is arbitrarily assumed by the Supreme Court, sitting simply as a court of equity. So sitting, it makes no discrimination between honest and fraudulent voting, but throws out whole precincts upon learning that its injunction has been to any extent violated. In this way a Legislature is packed by the Supreme Court; not in regular statutory proceedings, but in extraordinary injunction proceedings. If fear of popular outbreak does not deter them, even the governorship will probably be determined by these usurping judges through this wholesale throwing out of precincts in proceedings for contempt of a ‘prerogative’ writ of injunction.”
Mr. Post’s observation was prophetic. Although on the face of the returns Alvah Adams was elected Governor by a large plurality, the Legislature, packed by the Suprerne Court, seated J. H. Peabody in the Executive Chair, as a result of a post-election gubernatorial contest, the understanding being that Peabody would at once resign and give place to J. F. McDonald, who had run for the office of Lieutenant-Governor on the ticket with him. This was done, and the present Governor of the State of Colorado may properly be called an injunction-made Executive.
After such things what is not possible for courts sitting in equity?
Next week — The Bayonet in Civil Affairs.
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