The Menace of Privilege Chapter Twelve second part
|October 7, 2002||Posted by Staff under Archive, 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 12, USE OF THE COURTS BY PRIVILEGE
The Amazing Truth of How Anti-Labor Injunctions Became Customary
It is a fixed principle of the equity court that an injunction should not be issued merely to prevent the commission of crime, because a court of equity has no criminal jurisdiction. An injunction should not be issued when there is a remedy at law, or when the facts or the law are in doubt.
Do our courts observe these limitations? Not at all. “Courts of equity,” says a courageous jurist in New York City — Justice Samuel Seabury of the City Court — “have traveled over the whole field of human action to restrict whenever it has seemed to the individual judge that restraint should be imposed … The ridiculous extreme to which their power has been stretched is nowhere better illustrated than in the opinion of the Texas Court of Appeals, sustaining an order punishing a defendant for contempt of court for violating an injunction which prohibited him from attempting to alienate the affections of his neighbor’s wife.” (“The Abuses of Injunctions,” The Arena, June, 1903.)
That is to say, mixing what men have a right to do, such as peaceably to persuade, with what they have not a right to do, but for the doing of which they are punishable under the law, a restraining order may forbid all alike. To ignore this order is not to bring the case for jury trial as to the law and the facts. Men’s rights under the law have nothing to do with it. The question to be determined is: Was the restraining order ignored? If it was, then those who ignored it were in contempt of court. For such contempt they are punishable by the judge who issued the order, no matter how fully they might, if they could but get a jury trial, prove they were within their legal rights when they disobeyed the restraining order.
It is true that the injunction when first issued is only temporary. The theory upon which the court is supposed to proceed is that it will grant a petition for a restraining order pending an examination of the matter to decide if such restraint should be made permanent or be dissolved. But in most injunction cases the date for argument for a permanent injunction is far removed, and the enjoined persons are in the meanwhile so tied up by the temporary order and confronted with summary punishment for contempt of court if they ignore it, that the temporary injunction is just as effective as a permanent one in killing hand-to-mouth strikes.
Our practice of applying injunctions to labor disputes originated with a case in England in 1868. Upon that foundation all our wonderful edifice of industrial court orders has been built up. And yet mark how unsubstantial this foundation! The English case is known as Springhead Spinning Co. vs. Riley (6 L. R. Eq. Cas. 551). In that case members of a labor union were restrained from issuing placards which requested “all well-wishers” of the union “not to trouble or cause any annoyance to the Springhead Spinning Company Lees by knocking at the door of their offices, until the dispute between them and the self-actor reminders is finally terminated.”
Vice-Chancellor Malins, who sat in the case, held that the defendant workmen were in this issuing of placards guilty of “threats and intimidation, rendering it impossible for the plaintiffs to obtain workmen, without whose assistance the property became utterly valueless for the purposes of their trade.” The court therefore held that it should interfere by injunction to restrain such acts, insomuch as they also tended to the destruction or deterioration of property.
But this injunction order was only temporary, and the Vice-Chancellor had some doubts as to whether it would stand on subsequent hearing, should argument be made for making the order permanent, for no precedent for such action existed. He said : –
In the present case, the acts complained of are illegal and criminal by the Act of George IV. . . . Upon the general question whether this court can interfere to prevent these unlawful proceedings by workmen issuing placards amounting to intimidation, and whether acts of intimidation generally would go to the destruction of property, that will probably have ultimately to be decided at the hearing in the case.
In the meantime I would only make this observation, that by the Act of Parliament, it is recited that all such proceedings are injurious to trade and commerce, and dangerous to the security and personal freedom of individual workmen, as well as to the security of the property and persons of the public at large; and if it should turn out that this court has jurisdiction to prevent these misguided and misled workmen from committing these acts of intimidation, which go to the destruction of that property which is the source of their own support and comfort in life, I can only say that it will be one of the most beneficial jurisdictions that this court ever exercised.
That is to say, Vice-Chancellor Malins thought that if, when on motion to make the injunction permanent, the court should be found to have authority so to act, such enjoining order would be found beneficial to the workingmen against whom it operated! Similarly, it was argued in the Southern States that chattel slavery was beneficial to the slaves.
The motion to make this injunction permanent apparently never was argued, and the case ended there, probably for the reason that the temporary injunction broke up the strike, and the court order lapsed into desuetude.
A year later, 1869, Vice-Chancellor Malins, in the case of Dixon vs. Holden, issued another temporary injunction of the same kind. This order, like that in the case of Springhead Spinning Co. vs. Riley, was not appealed to a higher court.
But in 1875 both these cases were cited as furnishing precedents for an injunction case carried to the Chancery Court of Appeals, and known as the Prudential Assurance Company vs. Knott (10 L. R. Chancery Appeals, p. 142, 1875). Then that highest equity tribunal deliberately and unanimously repudiated Vice-Chancellor Malins’s action. Ground was taken that the court had no jurisdiction to restrain publication of a libel as such, even if it is injurious to property. In reference to the Vice-Chancellor’s restraining orders of six and seven years before, Lord Chancellor Cains of the Appellate Court said:-
I am unable to accede to these general propositions. They appear to me to be at variance with the settled practice and principles of this court, and I cannot accept them as an authority for the present application. I think that this appeal must be refused with costs.
Lord Justice James said:
I think that Vice-Chancellor Maims, in the case of Dixon vs. Holden, was, by his desire to do what was right, led to exaggerate the jurisdiction of this court in a manner for which there was no authority in any reported case, and no foundation in principle. I think it right to say that I hold without doubt that the statement of the law in that case is not correct.
Lord Justice Melligh said: “I am also entirely of the same opinion.”
Could anything be stronger and clearer than this? The Chancery Court of Appeals unanimously negatived Vice-Chancellor Maims’s action on the ground that it was “at variance with the settled practice and principle” of the Chancery Court; that it had “no authority in any reported case”; that it had “no foundation in principle.”
Yet clearly and emphatically as all this appears in the law reports, in 1888 – twenty years after the Springhead Spinning injunction, and thirteen years subsequent to that injunction’s repudiation by the English Chancery Court of Appeals – a Massachusetts court, in the case of Sherry vs. Perkins (147 Mass. 212), took Vice-Chancellor Maims’s action as a precedent for the issuance of a similar restraining order. It was held that the displaying of a banner constituted intimidation, deterring others from working for the employer. The only visible sign of a conspiracy which the court found to exist was the following inscription upon a banner: “Lasters are requested to keep away from P. P. Sherry’s. Per order L. P. U.”
This enjoining order of 1888 in the Sherry vs. Perkins case began the long procession of American injunctions in labor disputes. And then when this plant, which had been uprooted from English soil, took root in American soil and grew to size and strength, behold what happened, all ye who put your faith in the consistency of courts! The English Chancery courts began to cite the American equity courts for injunction precedents, entirely ignoring the former declaration of its own Chancery Court of Appeals that all such action was “at variance with the settled [Chancery] practice and principle.”
To pile wonder on wonder, the Canadian courts have now begun to cite those recent English Chancery cases for the issuance of restraining orders, and doubtless ere long our courts will quote the Canadian judges as additional injunction authorities.
Thus, while an attorney for a great monopoly corporation will now quote a perfect cloud of American and English labor injunction authorities, the facts are that they all sprang up in America since 1888, and that in England and America they came from a single temporary injunction issued by an English Vice-Chancellor in 1868, who had some doubt of his jurisdiction; which jurisdiction was subsequently declared by the highest equity court in England not to exist.
Upon such a foundation rests the recent great construction of labor injunctions.
Next week — how democracy itself is sometimes removed by injunctions.
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