war. Capital and labor have no Hague Court. The limitations upon
the scope and method of their warfare must come from the courts and
the legislatures. The Treaty of Paris provided for the rights of
neutrals, for the freedom of peaceful ships of commerce from plunder
and destruction in war. The rights of neutrals in industrial war are
less protected but are no less important. In that warfare the neutral
party--the public--stands much as Mr. Pickwick did between the rival
editors, receiving the fire-tongs on one side of the head and the
carpet-bag on the other. The labor question in its militant phase is a
public question largely because the public has no desire to occupy Mr.
Pickwick's unhappy position.
It happens that all the so-called labor decisions which Judge Taft
made when on the bench involve directly and primarily the rights of
the general public and of outsiders having no direct part in any
industrial quarrel, who against their will have been drawn into the
warfare between capital and labor. In deciding these cases it has
been necessary not only to consider the rights of labor in industrial
disputes, but to pass upon the right of the general public and of
disinterested outsiders to be let alone.
_A Veto to Economic Excommunication_
The first of these cases was one decided by Judge Taft in 1890 when
he was a judge of the Superior Court of Cincinnati. A Bricklayers'
Union in Cincinnati, having about four hundred members, had a dispute
with the firm of Parker Brothers, contracting bricklayers. The
Union wanted Parker Brothers to pay a fine it had imposed upon one
of their employees who was a member of the Union, to reinstate an
apprentice who had left them, and to discharge another apprentice.
Parker Brothers refused to do so. A strike was accordingly called.
The Union also declared a boycott against Parker Brothers, and its
business agent issued a circular to material men, contractors, and
owners, which concluded with this announcement: "Any firm dealing in
building materials who ignores this request, is hereby notified that
we will not work his material upon any building nor for any contractor
by whom we are employed. (Signed) Bricklayers' Union No. 1." One
of the contractors to whom this notice was sent was the Moore Lime
Company, engaged in selling lime in Cincinnati. Parker Brothers were
customers of the Moores, and the Moores continued selling lime to them,
notwithstanding the notice. Another circular was then sent out by
the Union to its members, which read as follows: "Bricklayers' Union
No. 1, Ohio. We, the members of the Bricklayers' Union, will not use
material supplied by the following dealers until further notice": and
in the list they put Moore & Company. The effect of the circular was to
interfere with Moore & Company's business and to cause loss to their
customers, who feared a similar fate. On these facts the Moores sued
the Union for damage which they claimed had been done to their business
by a wrongful and malicious conspiracy. The case was tried by a jury,
which gave the Moores $2,250 damages. An appeal was taken by the Union
to the Superior Court of Cincinnati, where Judge Taft presided.
The facts just related show the issue involved. The Moores' employees
had no grievance against them. The only grievance which the Bricklayers
had against them was that they refused to permit themselves to be
used as a battering-ram in an assault on Parker Brothers. The Union
insisted on the right to boycott Moore's Lime Company because Moore's
Lime Company would not assist them in injuring the Parkers. Judge
Taft decided, as other judges have decided in many cases, that such a
combination to injure the Moores was without just cause or legal excuse
and was illegal. This, so far as the Moores were concerned, was not a
strike case, but a boycott, and in his decision Taft was very careful
to draw the distinction and so express himself that the legal rights of
labor in a lawful strike should not be impaired. He says:
If the workmen of an employer refuse to work for him except on
better terms at a time when their withdrawal will cause great
loss to him, and they intentionally inflict such loss to coerce
him to come to their terms, they are bona fide exercising their
lawful right to dispose of their labor for the purpose of lawful
gain. But the dealings between Parker Brothers and their material
men, or between such material men and their customers had not
the remotest natural connection either with defendants' wages
or their other terms of employment. There was no competition
or possible contractual relation between the plaintiffs and
defendants, where their interests were naturally opposed. The
right of the plaintiffs (Moore & Company) to sell their material
was not one which, in its exercise, brought them into legitimate
conflict with the rights of defendants' Union and its members to
dispose of their labor as they chose. The conflict was brought
about by the efforts of defendants to use plaintiffs' right of
trade to injure Parker Brothers, and, upon failure of this, to use
plaintiffs' customers' right of trade to injure plaintiffs. Such
effort cannot be in the bona fide exercise of trade, is without
just cause, and is, therefore, malicious. The immediate motive of
defendants here was to show to the building world what punishment
and disaster necessarily followed a defiance of their demands. The
remote motive of wishing to better their condition by the power
so acquired, will not, as we think we have shown, make any legal
justification for defendants' acts.
The doctrine of excommunication, the great engine of the Church in the
Middle Ages, has not been revived and transferred from the Pope to the
labor unions.
_End of the Engineers' Famous "Rule 12"_
The next decision of Taft's in a labor dispute came after his elevation
to the Federal Bench, and again involved the same principle--the extent
to which the rights of a third party, against whom neither labor nor
capital has any grievance, can be impaired by involving him against his
will in labor disputes. This case arose out of a strike of locomotive
engineers on the Toledo-Ann Arbor Railroad in 1893. The strike had
been called after numerous conferences between the railroad officials
and Mr. Arthur, the representative of the Brotherhood of Locomotive
Engineers. It was a legitimate strike, as against the Toledo-Ann
Arbor Railroad, for higher wages. The phase of the controversy which
came into court for Judge Taft's consideration, however, was not the
strike itself, but grew out of an attempt by the Union to compel other
railroads to refuse to receive freight from the Toledo Road and thereby
paralyze that road and coerce it into granting the demands of the
engineers.
On March 7, 1893, Mr. Arthur sent to the chairman of the General
Adjustment Committees of the Brotherhood on eleven railroad systems in
Ohio and neighboring States the following telegram: "There is a legal
strike in force upon the Toledo-Ann Arbor & North Michigan Railroad.
See that the men on your road comply with the laws of the Brotherhood.
Notify your general manager." A "legal" strike, as the term was used,
meant one to which the Grand Chief of the Brotherhood of Locomotive
Engineers had consented, and meant the promulgation of Rule 12 of the
organization, which provided in substance that after a strike had been
declared against a railroad, it should, while the strike continued,
be "a violation of obligation for a member of the Brotherhood of
Locomotive Engineers who may be employed _on a railroad running in
connection with or adjacent to said road_, to handle the property
belonging to said road or system in any way that may benefit said
company with which the Brotherhood of Locomotive Engineers is at issue."
In obedience to Mr. Arthur's telegram, representatives of the
Brotherhood on various railroads notified the general managers of these
railroads that after a certain date the engineers would refuse to haul
cars or freight forwarded by the Toledo Road. Some of these railroads
thereafter notified the management of the Toledo Railroad that in
view of the threatened actions of their own engineers, they would be
obliged to discontinue receiving or forwarding freight for the road.
The Toledo thereupon obtained from Judge Taft in the United States
Circuit Court an injunction against the Pennsylvania Railroad and other
railroad companies, enjoining them from refusing to handle its freight
and commanding them to perform their railroad functions as required
by the Interstate Commerce Act, which made it a criminal offense for
connecting railroads to refuse to receive or transport freight from
one another's lines. Mr. Arthur was made a party, and the injunction,
issued, and sustained after hearing, directed him to rescind his order
putting into effect Rule 12 of his organization. The decree did not
require the employees of these other railroads to continue to work
for the railroads if they saw fit to strike, but it did require them,
as long as they were in the employ of those railroads, to handle the
freight of the Toledo Road as they would the freight of any other road.
The opinion which Judge Taft wrote in this case is a long one. He
quotes the provisions of the Interstate Commerce Act, which clearly
made it a criminal offense for the officers, agents, or employees
of any of these connecting roads wilfully to refuse to receive and
transmit the freight of the Toledo Road, and declares that the attempt
of the Locomotive Engineers to compel the railroads to commit this
criminal offense through this Rule 12 was unlawful. As to the rule
itself, he says, after an exhaustive examination of it in connection
with the provisions of the Interstate Commerce Law:
We have thus considered with some care the criminal character of
Rule 12 and its enforcement, not only, as will presently be seen,
because it assists in determining the civil liabilities which
grow out of them, but also because we wish to make it plain, if
we can, to the intelligent and generally law-abiding men who
compose the Brotherhood of Locomotive Engineers, as well as to
their usually conservative chief officer, what we cannot believe
they appreciate, that notwithstanding their perfect organization
and their charitable, temperance and other elevated and useful
purposes, the existence of Rule 12 under their organic law makes
the Brotherhood a criminal conspiracy against the laws of their
country.
The Brotherhood of Locomotive Engineers acquiesced in the criticism
of this section of their laws and removed it. The fact that this
organization is in existence to-day, unimpaired in power and authority
throughout the American railroad world, is an indication of its
willingness to recognize and obey the law of the land. Its conduct in
subsequently withdrawing the rule shows that Judge Taft was justified
in setting forth with such painstaking clearness the illegality of the
rule, with the expectation that its illegality would be recognized and
the rule abolished--a confidence which was justified by its results.
_Phelan Sentence in the Pullman Strike_
The next labor decision made by Judge Taft was in the well-known Phelan
case in the great Pullman strike of 1894. The organization with which
he was then called upon to deal was of a totally different character
from that of the Locomotive Engineers. It was one managed in entire
disregard of the law, the courts, and the public. Eugene V. Debs, the
chief agent of that organization, the American Railway Union, is to-day
the Socialist candidate for the presidency. In the Pullman strike of
1894 Judge Taft sent one of Debs' chief assistants--Phelan--to jail for
six months. If his judicial conduct in this matter merits criticism,
here are the facts on which that criticism must be based:
Some of us have fairly hazy notions to-day as to the Pullman strike
and what it was all about. It began in May, 1894. The employees of the
Pullman Company, engaged in making cars at Pullman, Illinois, went on a
strike because of the refusal of the Company to restore wages which had
been reduced in the preceding year. The American Railway Union, which
then comprised some two hundred and fifty thousand railway employees
which Debs had organized and over which he was master in control, later
endorsed this strike and started in actively to make it a success. The
principal means by which that success was sought was by declaring a
boycott on Pullman cars. In Judge Taft's opinion in the Phelan case
(Thomas _vs_. Cincinnati, N. O. & T. P. Rd. Co.), he gives the plan and
scope of this boycott as follows:
Pullman cars are used on a large majority of the railways of the
country. The members of the American Railway Union, whose duty
it was to handle Pullman cars on such railways, were to refuse
to do so, with the hope that the railway companies, fearing a
strike, would decline further to haul them in their trains and
inflict a great pecuniary injury upon the Pullman Company. In case
these railroads failed to yield to the demand, every effort was
to be made to tie them up and cripple the doing of any business
whatever by them, and particular attention was to be directed to
the freight traffic, which it was known was the chief source of
revenue. As the lodges of the American Railway Union extended from
the Alleghany Mountains to the Pacific Coast, it will be seen
that it was contemplated by those engaged in carrying out their
plans, that in case of a refusal of the railway companies to join
the Union in its attack upon the Pullman Company, there would be
a paralysis of all railroad traffic of every kind throughout the
vast territory traversed by the lines using Pullman cars.
Phelan came to Cincinnati to carry on this warfare against the Pullman
Company by paralyzing, if he could, all the railroads centering there.
He did not stop even with the railroads using Pullman cars, but ordered
a strike against the Big Four, which used none of these cars. On the
day Phelan called the strike in Cincinnati, Debs telegraphed to him
to let the Big Four alone if it was not using Pullman cars, to which
Phelan answered: "I cannot keep others out if Big Four is excepted. The
rest are emphatic on all together or none. The tie-up is successful."
Debs replied "About twenty-five lines are paralyzed. More following.
Tremendous blockade." A few days later Debs telegraphed: "Advices
from all points show our position strengthened. Baltimore & Ohio, Pan
Handle, Big Four, Lake Shore, Erie, Grand Trunk, and Michigan Central
are now in the fight. _Take measures to paralyze all those which enter
Cincinnati._ Not a wheel turning between here and the Canadian line."
_"Starvation of a Nation" Illegal_
On the day that Debs telegraphed Phelan to take measures to paralyze
all those lines which entered Cincinnati--work which was already well
under way--at the very crisis of the strike, on the application of
the receiver of the Cincinnati, New Orleans & Texas Pacific Railway
Company, and on a petition which alleged a malicious conspiracy to
prevent the receiver from operating that road, Phelan was arrested by
an order of Judge Taft for inciting the employees of the receiver to
quit their employment and for urging them to prevent others from taking
their places, by persuasion if possible, by clubbing if necessary. The
receiver asked for the commitment of Phelan for contempt, alleging that
the whole boycott was an unlawful and criminal conspiracy, and that,
for his acts in maliciously inciting the employees of the receiver, who
was operating the railroad under order of the United States Court, to
leave his employ in pursuance of that unlawful combination, Phelan was
in contempt of court.
Was the combination of Debs and his associates illegal? Judge Taft
said that it was, not only because boycotts are illegal under the law
of every State in the Union where the question has arisen, with one
possible exception, but because this combination of men, in their
efforts to gain their own personal ends, had trampled upon the rights
of the public. He said:
The railroads have become as necessary to the life and health and
comfort of the people of the country as are the arteries in the
human body, and yet Debs and Phelan and their associates propose,
by inciting the employees of all the railways in the country to
suddenly quit their service without any dissatisfaction with the
terms of their employment, to paralyze utterly all the traffic
by which the public live, and in this way to compel Pullman, for
whose acts neither the public nor the railway companies are in the
slightest degree responsible and over whose acts they can lawfully
exercise no control, to pay more wages to his employees. Certainly
_the starvation of a nation cannot be a lawful purpose of a
combination_, and it is utterly immaterial whether the purpose is
effected by means usually lawful or otherwise.
The "starvation of a nation," for such purposes, by such means,
stopped, so far as Phelan was concerned, on the day these words were
read by Judge Taft--the 13th day of July, 1894. It stopped because
after a protracted and exciting trial, in which many witnesses were
called and Phelan was fully heard in his own defense, Taft sent Phelan
to jail for six months. Those who believe that the starvation of a
nation is within the rights of labor engaged in a private quarrel, must
tell us wherein this Judge did wrong.
These three cases are legal landmarks showing the limitations of
industrial warfare. They are what the lawyers call "leading cases."
They lay down clearly and dispassionately the law which marks the
rights of the public to remain unmolested by the conflict of labor and
capital at war. Such decisions are in American law what the Treaty of
Paris is in the Law of Nations--a declaration of the rights of neutrals.
If, as a candidate for the presidency, Mr. Taft is to suffer from
unpopularity created in any quarter by these decisions which he made as
judge, he must endure it, for the search for popularity is not a part
of the functions of a judge.
_The Courage of Great Judges_
The picture of Taft in the Phelan case, reading in a court-room crowded
with angry and hostile men a decision which was to send their leader to
jail; a decision which was to play a large part in determining one of
the most distressing industrial wars of our day;--this picture recalls
another court, another great occasion long ago.
In 1768 John Wilkes, who had been prosecuted relentlessly by the
British Crown, and who had been outlawed and driven to France, returned
to England, appeared before Lord Mansfield in the Court of Kings Bench,
and demanded that the judgment of outlawry be reversed. The nation
was frenzied by faction. Abuse and threats of personal violence were
heaped upon the Chief Justice. In a court-room crowded with the enemies
of Wilkes, the greatest of English judges reversed and annulled the
decree of outlawry. In doing it, he gave what seemed a death blow to
his own favor with the King, who had placed the judicial ermine on
his shoulders. After he had rendered this judgment, facing the angry
sycophants of the Crown, he spoke these words:
If during the King's reign I have ever supported his government
and assisted his measures, I have done it without any other
reward than the consciousness of doing what I thought right. If
I have ever opposed, I have done it upon the points themselves,
without mixing in party or faction, and without any collateral
views. I honor the King and respect the people; but many things
required by the favor of either are, in my account, objects not
worth ambition. I wish popularity, but it is that popularity which
follows, not that which is run after. It is that popularity
which, sooner or later, never fails to do justice to the pursuit
of noble ends by noble means. I will not do that which my
conscience tells me is wrong, upon this occasion, to gain the
huzzas of thousands, or the daily praise of all the papers which
come from the press. I will not avoid doing what I think is right,
though it should draw on me the whole artillery of libels; all
that falsehood and malice can invent or that the credulity of a
deluded populace can swallow.
The two qualities which make a great judge are wisdom and moral
courage. No great judge ever lived who did not possess them both.
When the Phelan case was on trial before Judge Taft, it was a time of
tremendous excitement. It was the very crisis of a great strike. The
friends of the Judge feared for his life and asked him not to read his
decision from the bench. He read it. The last sentence of that decision
directed the marshal safely to convey Phelan to the Warren County Jail.
When he read that final sentence he turned to the packed court-room and
looking squarely into the angry faces before him said: "If there is any
power in the army of the United States to run those trains, the trains
will be run." To those who honor judicial courage no less than judicial
wisdom, such occasions deserve to be recalled and remembered, for they
are part of the great traditions of the bench.
But these decisions are not solely declarations of public rights.
They contain statements of the legal rights of labor organizations in
strikes, stated so clearly that the decisions have been cited time and
again in subsequent litigation by labor organizations themselves as
precedents in their favor. They affirm unequivocally the right of labor
organizations to strike to better the condition of their members, and
the right to use peaceable persuasion to prevent other employees from
taking the place of strikers, a right which in some jurisdictions,
particularly Pennsylvania, has been denied.
_The Right to Strike_
Quite apart from his judicial decisions, Taft's position on the strike
question is clearly stated in public addresses. Last January, at Cooper
Institute, he said to an audience of workingmen: "Now what is the right
of the labor unions with respect to the strike? I know that there has
been at times a suggestion in the law that no strike can be legal. I
deny this. Men have the right to leave the employ of their employer in
a body in order to impose on him as great an inconvenience as possible
to induce him to come to their terms. They have the right in their
labor unions to delegate to a leader power to say when to strike.
They have the right in advance to accumulate by contributions of all
members of the labor union a fund which shall enable them to live
during the strike. They have the right to use persuasion with all other
employees who are invited to take their places in order to convince
them of the advantage to labor of united action. It is the business of
the courts and the police to respect these rights with the same degree
of care that they respect the owners of capital in the protection of
their property and business."
No public man has placed himself more clearly on record on the
so-called injunction question. The plank of the Republican platform
which advocates a modification of the present federal court practice,
under which injunctions are issued without notice to organizations
sought to be enjoined, is a plank adopted at Mr. Taft's request and
suggestion. The jurist who, in a decision in the coal mine cases of
1902 in West Virginia, described an organization which has done more
for the coal miners than any other social force, the United Mine
Workers, as a band of walking delegates fattening on the poor and
ignorant, declared in the same decision that no injunction had ever
been issued in strike cases which was not entirely justified by the
facts. Judge Taft says this is not true; that such injunctions have
been issued unjustly; and in his Cooper Union address he said: