The Menace of Privilege Chapter Twelve first 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.
start of CHAPTER 12, USE OF THE COURTS BY PRIVILEGE
Injunctions: a Key Weapon Abused by Privilege
Men may construe things after their fashion,
Clean from the purpose of the things themelves.
– SHAKESPEARE: Julius Caesar.
When he speaks not like a citizen,
You find him like a soldier.
– SHAKESPEARE: Coriolanus.
TOWARD the end of his life, Thomas Jefferson spoke of the judiciary of the United States as a “subtle corps of sappers and miners constantly working under ground to undermine the foundations of our federated fabric.” (Letter to Thomas Ritchie, Dec.25, 1820. Jefferson’s Writings, Ford Edition, Vol. X, p. 169.)
And certain it is that the Federal courts have had a great share in the movement toward centralization of political institutions in this country. They have also been “a subtle corps of sappers and miners” in ways of which Jefferson had not the remotest surmise. They have been a most potent weapon in the hands of Privilege to crush strikes and break the back of trade unions. “No weapon,” says John Mitchell in his book, “has been used with such disastrous effect against trade unions as the injunction in labor disputes. It is difficult to speak in measured tones or moderate language of the savagery and venom with which unions have been assailed by the injunction.” (“Organized Labor,” p.324.)
Now as Jefferson has said, if the question arose as to whether the people had better be omitted from the legislative or from the judiciary department of the Government, it would be better to leave them out of the legislative, since the execution of the laws is more important than the making them. (Letter to L’Abbe Arnond, Paris, July 19, 1789. Jefferson’s Writings, Ford Edition, Vol. V, p.102.)
Yet the body of the people are as a general practice most effectually left out of the judiciary, the Federal judges being appointed almost wholly from thc ranks of attorneys representing the great monopoly corporations.
This may to some degree be due to the fact that other fields do not yield equal opportunities for the display of experience, ability and learning. Certain it is that other fields do not afford like opportunities for moneymaking, either in respect to fees or “business openings” in partnership with Privilege. This has become particularly manifest during the last decade. Mr. Bryce noticed it during his recent trip to this country, saying subsequently: –
- Lawyers are now to a greater extent than formerly business men, a part of the great organized system of industrial and financial enterprise. They are less than formerly the students of a particular kind of learning, the practitioners of a particular art. And they do not seem to be quite so much of a distinct professional class. Someone seventy years ago called them the aristocracy of the United States, meaning that they led public opinion in the same way as the aristocracy of England led opinion there. They still comprise a large part of the finest intellect of the nation. But one is told that they do not take so keen an interest in purely legal and constitutional questions as they did in the days of Story and Webster, or even in those of William M. Evarts and Charles O’Conor. Business is king. (“America Revisited: the Changes of a Quarter Century,” Tke Outlook, March 25, 1905.)
Of course what Mr. Bryce means by “business” is business with a monopoly element in it; business conducted around some government-made or fostered privilege. For mere competitive, unprivileged industrial or commercial business offers no enormous money-making. But as the attorneys for public franchise corporations, as the spokesmen for tariff-nurtured trusts, as the counselors for bond syndicates, as the legal guides, philosophers and friends of individuals or companies holding rich privileges in coal, oil, timber, urban and suburban lands, these lawyers grow rich.
The late James C. Carter, toward the end of his life the undisputed leader of the American bar, left an estate worth a million and a half. He acquired it through “corporation practice” and the taking advantage of “business openings.” Yet he was not regarded as a money-making man, and it is probable that many of our practicing lawyers, starting with only sufficient to pay their office rent, have acquired fortunes far larger than the Carter estate. Since the monopoly corporations endeavor to retain for their service all lawyers revealing the highest capabilities, and since the pay and honors in such service are generally large and frequently are very great, as against small and uncertain pay and indifferent honors in the service against them, most first-rate lawyers will persuade themselves that their proper course as attorneys lies on the former side, even though their private judgments, if taken abstractly, might be found opposing.
It is from the ranks of such men that the Federal court benches are almost altogether filled — men who have come more or less directly out of the employ of Privilege. It is needless to cast a breath of suspicion against their integrity to perceive that a bench made up of judges drawn from such sources will lean in the direction of Pnvilege. Judges are no less human than they were before hey put on the judicial gown. They may have the most scrupulous intention to deliver even-handed justice, but they will construe justice from their own point of view; and their point of view must have been affected more or less in favor of Privilege by formerly being in its service. We can easily appreciate how the reverse would be true were the judges drawn from those serving as attorneys for trade unions, and how the cry would be raised, and not improperly, that the trade unions had captured the judiciary. So may it be said that the monopoly corporations have captured the judiciary; that Privilege, which has first tested attorneys in its service, has afterwards obtained their appointment to the bench.
And as with the United States courts, so to large extent, if not quite so fully, is it with the higher State courts. The reason why it does not obtain so fully is that there the judiciary is nearer to the body of the people which elects its incumbents. Yet in nominating conventions and in the canvass for votes the open support or secret influence of the public franchise or other privilege-owning corporations is employed for their favorites. Even in cases where this is not so, it is frequently seen that the monopolies pay assiduous homage after election. The most subtle means of doing this is supplied by the railroad pass favor, touching which the following from a practicing lawyer, who for obvious reasons withheld his name, appeared in one of the Chicago newspapers (Chronide, March 6, 1904):-
- It is common knowledge among Chicago lawyers that as soon as a judge is elected to the bench his mail is full of passes from all directions sent him by both State and inter-State companies. It is difficult to see why the railroads should do this, except that they expect some advantage from these free gifts. I believe that, if the commissions make a full investigation on this subject and an exposure is publicly made of it, the facts will show that every county judge in the one hundred and two counties and every Supreme Court judge, including the Federal judges, is tendered yearly passes. The extent to which they are accepted can only be surmised. This point should be established and made a matter of record. Some judges spurn the passes, others use them. The people should know who they are. It is not the claim of any lawyer who is in favor of breaking up this practice that a railroad pass will affect the decision of a judge in an important case, yet the question remains whether any one for a moment supposes that railroad companies grant these favors without an expectation of getting something in return.
If trade unions were to procure the appointment or election or favor of judges they would be expected to use those judges in their own behalf. Privileged companies who do procure such appointment, election or favor appear to use it to issue enjoining orders.
An injunction has been defined in law as an order or process by a court possessing equitable powers operating upon the person, requiring the party or parties to whom it is directed to do or to refrain from doing some designated thing. Originally it was used in restraint of action, but recently it has come to be used to compel action, and it is now being used to restrain where there is full legal ight to act, or where the law, forbidding, provides a punishment; the penalty of disobedience to the restraining order being a summary sentence by the court disobeyed, or without trial by jury or respect to whether or not the person or persons so punished for disregarding the court order were only doing what they had a right under the law to do.
The court of equity began its operations in England (whence we get our legal practice) at a time when the ordinary judicial trials and processes being used by the nobles in their own behalf, the humbler subjects made petition for redress to their sovereign, or rather to the “keeper of the King’s conscience,” the Chancellor, who usually was a priest. Upon this hearing the petitioners were dismissed, or else a decree was issued by the King, or by the Chancellor in the King’s name, granting the petition and ordering it to stand as if by legal proceedings. From this the Chancellor developed into a judge, who, acting without a jury, issued mandates in cases where there was no adequate remedy at law.
At outset the equity jurisdiction was of wide latitude and its decisions were reproachfully described as varying with the size of the Chancellor’s foot. It was susceptible of being turned, like captured guns, against the very class of people it was devised to help. No better illustration of its early tyranny can be found than in the workings of the infamous English Star Chamber. This body, with the Chancellor at its head, and working without a jury and by summary process, under plea of reaching cases not determinable by common law, delivered arbitrary decisions and administered cruel punishments in furthering exercise of the right of absolute power asserted by the Stuarts. But while the Star Chamber fell with the head of Charles I, the practice of equity was continued under rules that calculated to keep the Chancellor within proper bounds. The Chancellor’s court and the law courts were, however, kept distinct, the latter to give judgments after a trial by jury, the former to issue decrees after hearing before the Chancellor.
But in the adaptation in this country of English legal and equity usages, our Federal courts and most of the courts of our States have come to embrace both functions. Our judges are both law judges and equity judges. They conduct trials before juries; they also issue decrees without juries. With what result? That, armed with the power to command, judges, who before ascension to the bench were formerly the representatives in litigation of monopoly corporations, issue, while sitting in “chambers,” mandates against bodies of workmen with whom such corporations may be in conflict, and refrain from bringing the case into court for trial before juries. This is not to question the integrity of such judges. It is only to say that they follow the rules of human nature and continue to think and act on the bench as they were accustomed to think and act before they went there.
Let any who will gainsay this answer how often these judges in their equity practice follow the precepts of that branch of jurisprudence: “Equality is equity;” “He who asks equity must do equity;” “He who comes into a court of equity must come with clean hands.” How often do our judges sitting in equity inquire into the preceding conduct of, say, great coal companies or of railroad companies when they petition for restraining orders? Is it not the common usage not to make any inquiry at all, but to issue the decree at once, and on a mere ex parte statement?
Next week — how injunctions subvert lawful organizations of laborers.
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