HAPPILY IT IS not such a frequent occurrence as may be supposed that the
Judges of our Court of Errors and Appeals split apart so curiously as
they did in determining that the Van Ness Enforcement Act should be
declared unconstitutional. The result only shows that, like the doctors,
Judges cannot all think alike. On the subject of whether whiskey is
useful as a medicine or not our New Jersey doctors, on a canvass, split,
520 to 308, or 490 to 319, according as one interprets the replies. In
the Nation at large it ran 51 per cent. to 49 per cent., a closer
margin. But only half of those who were interrogated by the "Journal of
the American Medical Association" responded; what the rest thought we do
not know. So on the legal questions involved in the Van Ness Act,
counting those Judges who approved the Act as constitutional in the
Supreme Court, the difference between a yea and nay vote appears to have
been only one. On the subject of whether the Act could be sustained
because it took away from defendants the right of trial by jury, which
was the great burden in objections made by defendants themselves, the
Court held what this Journal has held, that the Legislature had the
power to direct that trials might be by magistrates without a jury. It
had done so over and over again in other matters and could do so in
liquor legislation as well. On other points there were various
differences of opinion. However, since the Act as a whole is declared
unconstitutional, on the ground that it does not conform to the Federal
Act, which declares that the illegal possession, sale, etc., of liquors
constitute a crime, instead of disorderliness, the Legislature has
passed new statutes which alter the basis of a conviction from a
disorderly proceeding to a criminal proceeding. There is no hope in this
for bootleggers, except as it permits them to escape by jury
disagreements or "not guilty" verdicts. If no law were enacted the
Federal Courts would be filled with cases, and the results there would
give no hope to criminals. Generally speaking, the upsetting of the Van
Ness Act is unfortunate, because jury trials are expensive as well as
uncertain; trials before Judges as magistrates are more certain and far
less expensive. In the end, however, bootleggers will not win in the
game.
* * * * *
On the question of the legality of "picketing" by strikes the Court of
Errors and Appeals of this State also held quite divergent views, but
sustained the Keuffel & Esser injunction granted by Vice-Chancellor
Buchanan against the International Association of Machinists. The
majority decision of the Court was rendered on Jan. 26th, in an opinion
by Mr. Justice Swayze. His finding was sustained by 9 affirmative and 5
negative votes. Besides Justice Swayze, the members of the Court voting
to affirm were Justices Parker, Bergen, Kalisch and Katzenbach, and
Judges White, Williams, Gardner and Ackerson. Voting to reverse were
Chief Justice Gummere, Justices Trenchard, Minturn and Black and Judge
Van Buskirk. "The object of the appeal avowedly is," said Justice
Swayze, "to secure a decision as to the legality of picketing when
unaccompanied with violence, molestation of others, annoying language or
conduct--in short, what is sometimes called peaceful picketing. Parading
in the neighborhood of complainants with placards indicating that a
strike is in progress is similar in its legal character to picketing."
He then pointed out that the Court is bound in a measure by the recent
decision of the Supreme Court of the United States in the case of the
American Steel Foundries v. The Tri-City Central Trades Council, in
which Chief Justice Taft wrote an opinion upon the rights of strikers,
both at common law and as governed by the Clayton act. Taking the
Federal decision as a foundation, Justice Swayze said it held the
employer had the right to the access of his employés to his place of
business and of egress therefrom, without intimidation or obstruction;
and the employés, recent or expectant, had the right to use peaceable
and lawful means to induce present employés and would-be employés to
join their ranks. He remarked that the legality of any particular
conduct depends on the facts of the particular case and that picketing
may or may not be lawful, as it has or has not an immediate tendency to
intimidate the other party to the controversy. Remarking that picketing
is illegal if it has an immediate tendency to obstruct free passage such
as the streets afford, consistent with the rights of others to enjoy the
same privilege, Justice Swayze continued:
"Thus men may accost one another with a view of influencing action, but
may not resort to persistence, importunity, following and dogging. The
number of pickets may of itself make the picketing unlawful, since it
may amount to intimidation. Everyone knows that threats of bodily harm
may be made by a mere show of force, without violence of language or
breach of the peace, and that mere numbers may intimidate. The real
question is, 'Does the conduct under existing facts amount to
intimidation?' Twenty-five or fifty pickets may, when a single picket
probably would not. If information alone were wanted in the pending
case, all the information necessary for the defendants to enable them to
prosecute their efforts to convert the complainants employés would have
been obtained by a few men. The use of twenty-five or fifty or two
hundred, as in fact used, was clearly unnecessary, and could not have
been intended for any lawful purpose. In view of the testimony as to
what actually went on, the Vice-Chancellor properly held that the
conduct of the defendants was an illegal interference with the
complainants' property rights."
* * * * *
The opinion noted above is, in the whole, a lengthy one. Judge White
concurred in it in a separate opinion. Justice Minturn filed a strong
dissenting view, taking the ground that the Court's conclusion served to
mark another step in the cycle of judicial legislation, which, beginning
with an appropriate effort to curb agitation of a forcible character,
has concluded with an edict which will be construed to put an end to
peaceable and constitutional economic agitation. "Nothing further," he
said, "would seem to be necessary to complete the chaplet of judicial
legislation, unless it be the invocation of the provisions of the
statute of laborers (Edward III.), under the provisions of which the
laborer was effectually conscripted to the service of the master, and to
that end was hounded as a helot, and labeled with the brand of Cain. In
every other walk of life the peaceful activities condemned by these
adjudications are quiescently tolerated, if not approving recognized."
* * * * *
The cash bonus asked--not asked but demanded in formal resolutions--by
various of the associations of the American Legion throughout the
country, and which has given the present Congress and the President more
concern than almost any domestic subject, has not struck a responsive
chord in the popular ear except from the soldiers--a minority of them,
as we believe--who want it. Every business man knows it is not the time
to pension well soldiers of the late war further than the States are
doing it. We have always doubted that the best officers and soldiers of
the country were behind the movement. It is to belittle their patriotism
to believe that they desire to foist billions of taxes, direct or
indirect, upon their country at the present moment.
* * * * *
When Senator Edge told an assembly at Atlantic City recently that the
Senate of the United States, of which he is a member, failed alarmingly
in performing its proper duties in a speedy and efficient manner, he
only stated what public opinion has long held. The mere fact, to which
he did not allude however, that a few men can talk any good project
before that body to death, the Senate rules permitting unlimited debate,
has served again and again to prove the truth of his statements. The
House of Representatives, with its too-many members, is far more
reflective of public sentiment than the Senate, and actually does its
work more expeditiously when a majority of members desire quick action.
A reform in the Senate is of such importance that too much public
attention to its improper methods of carrying on public business cannot
be given. The press of the country should be a unit in demanding a
change in methods and results. The New York "Times" thinks the trouble
is largely due to the fact that there is a dearth of strong men in the
Senate; that there is no great inducement for a strong man to go to the
Senate as a new member, because he is practically "frozen out" of any
good committee assignment for a long period of time. It says of a new
member:
"What will happen to him when he takes his seat in the Senate? He will
get only insignificant committee appointments. He will be expected to be
silent for at least six months. If he undertakes, as a new Senator, to
impress upon the Senate any positive convictions of his own, he will be
'hazed' like a college freshman in the effort to teach him his place. If
there is in the Senate a 'career open to talent,' it is open only after
long waiting. In short, the Senate that now professes an anxiety for the
accession of strong men itself puts formidable obstacles in the way of a
strong man. Its rules, as Senator Wadsworth has just been lamenting,
make it almost impossible to transact business. Its time is mostly taken
up by querulous and ineffective members. Its committees are manned by
the rule of seniority, which too often spells senility. Indeed, about
the only way in which the Senate as it is at present can be said to be a
nursery of political strength is in accordance with the maxim, Suffer
and be strong. A Senator who can survive for a few years the suffering,
mental and moral, which he has to undergo in the Senate, may emerge into
power and influence. But upon the strong man just arrived the Senate
always puts a damper."
Lots of truth in this. Nevertheless, present Senate rules combined with
too much politics and too little statesmanship and business activity are
responsible for a deterioration of the public esteem for our highest
governing body.
* * * * *
Dean Stone of the Columbia University Law School of New York City in a
report to the President of that Institution made recently sounds a
proper warning as to the quality and numbers of young men crowding into
the Bars of many of the States. Among other things he said:
"It may well be doubted whether there is any profession which makes
greater demands than the law on the capacity of its members for
sustained intellectual efforts, their powers of discrimination and their
ability to master detail. Yet, as I have often had occasion to point out
in these reports, increasing numbers of men of mediocre ability and
inadequate preliminary education are being attracted to the law by the
ever-increasing facilities for law study. What, under the conditions of
law study and admission to the Bar of a generation ago, was a task of
magnitude testing the patience, stability, character and intellectual
power of the prospective lawyer to the utmost may now be performed with
relative ease. This is partly attributable to the multiplication of
opportunities for law and study nicely adapted to the peculiar type of
Bar examination prevailing in most of our States, and partly because Law
Schools and Bar examinations too often place the interests of the
individual law student and sometimes their own interests ahead of the
interests of the profession. It is the duty of Law Schools to dissuade
the man of ordinary ability and meagre education from beginning law
study, and, if he will not be dissuaded, to apply to him standards of
proficiency and attainment worthy of the profession to whose membership
he aspires."
* * * * *
The Washington Conference is over and the results are more than
gratifying. Only the blindest obtuseness on the part of the United
States Senate has prevented early ratification of the various treaties
made by it. The great point gained by this Conference is that it brought
Great Britain, France, Japan, China and five other powers face to face
in friendliest attitude, and this is what should happen again when
occasion calls for it. Every country represented is happy over the
result, and to say that America should be is a truism. It marked another
great event in world history.
* * * * *
Some day perhaps, every moving-picture theatre will have this
description of the art it employs on its front curtain, for is it not
the lucid description recently published in a magazine devoted to the
"sublime art" of motion-picture writing? And it will be good for school
boys and girls to interpret: "The photodramatist enters the great cosmic
drama in keeping with the Infinite Plan; he will be, in the expanse of
days to come, a master of new values in art, science, philosophy,
religion. From the fastnesses of the invisible world of Thought,
fulgurous forces of the very essence of Beauty are sweeping into his
consciousness, attracted by the human desire for more complete
expression."