THE CONVICTION OF LABOR LEADERS: THE PRINCIPLES INVOLVED

Before stating to our readers the facts in the case of the Bucks Stove and Range Company against Samuel Gompers, John Mitchell, and Frank Morrison, we state here certain fundamental principles of law which should be applied in interpreting those facts and reaching a just decision respecting the case. (I) Government exists in three departments-legislative, judicial, and executive. It is the business of the legislative department to determine what laws are just and expedient, and to enact them; it is the business of the judicial department to decide whether any law before the court for adjudication is one which the Constitution gives the legislature a right to enact, to determine the meaning of the law, and to apply it to the particular question in controversy. In case some one is accused of violating the law, it is the business of the court to determine whether he has violated it; it is not the business of the court to determine whether the law is just or unjust. If the judge thinks the law is unjust, he must still pronounce sentence of condemnation on the accused before him if the accused has violated the law. Thus, if, in 1850, a man accused of violating the Fugitive Slave Law

brought before an Abolitionist judge who thought the Fugitive Slave Law unjust, the Abolitionist judge would be morally bound to sentence the violator of that law for his illegal act. The judge is appointed, not to determine what is just, but what is lawful, and if he is unwilling to take part in enforcing the law he must resign from the bench. (II) It is not always immoral to violate law or even to set law at defiance. Sunday-school scholars are constantly exhorted to imitate the example of Daniel, who violated the law which forbade him to worship Jehovah; the men who conducted the underground railroad and permitted slaves to escape were violating

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the law, yet history has generally commended their action. There are times when the higher moral obligation calls on the citizen to obey the "higher law" and set the unjust human law at naught. If, however, he does so, he must be prepared to take the punishment for the violation of the law. It may be moral for him to violate the law and moral for the judge to sentence him to punishment for violating the law. is sentenced for doing an illegal act, not for doing an immoral act. The Bailey case, reported on another page, illustrates this principle. Judge Thomas, of Alabama, regards the labor law of Alabama as a grossly unjust law, and we agree with him. He also regards it as unconstitutional, and in that opinion we are inclined to agree with him. But the Supreme Court of Alabama has held that the law is constitutional, and in obedience to that decision he has refused to release from custody a colored man brought before him, who, in his opinion, ought to be released. He refused to release him because he is bound, as judge, to carry out the law of the State as it is interpreted by the higher courts, and he accompanied his decision with a protest against the law which he was compelled to enforce. (III) The judge is appointed to settle specific questions brought before him that arise under the law and that require an interpretation and application of the law. It is not fitting for him to take part in public controversies respecting particular laws, and it is extremely indecorous to take advantage of his position on the bench to take part in such a controversy. He should decide the case before him, and should give calmly and without passion the reasons for his decision. should not make his opinion an address to the American people for one side or the other of a publicly debated question in politics, religion, or sociology. He is to decide specific questions, not to debate

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the American Federation of Labor and its officers there are two stages: First, the proceedings to enjoin the boycott pronounced by the Federation of Labor against the Bucks Stove Company; second, the proceedings to enforce that injunction by punishing the defendants for contempt of court in violating it. The facts respecting the first stage can, for the purposes of interpretation of Judge Wright's decision, be here briefly stated, though, as a dramatic illustration of the method and the consequences of a boycott, we may report the facts more fully hereafter. The Federation of Labor pronounced a boycott against the Bucks Stove Company in March, 1907, and published its name in the " unfair" list and in the "we don't patronize" list of its official organ. It proceeded in addition to take vigorous and apparently effective means to prevent tradesmen from buying the Bucks stoves and ranges and to prevent individual customers from buying of tradesmen who dealt in the Bucks stoves and ranges. A suit was brought to enjoin them from continuing this boycott. No injunction in this suit was issued until after a hearing. It was then issued by Judge Gould, of the Supreme Court of the District of Columbia, on the ground that such a boycott was in itself a violation of law, a position stated and defended in an opinion of calm and judicial temper, in striking contrast to that of Judge Wright, to which we refer hereafter. In this opinion Judge Gould quotes the definition of boycott given by Judge Taft, when of the Circuit Court of the United States, in 1893: "A boycott is a combination of many to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause serious loss to them." And he adds a

further quotation from the same judge given in the following year: "Boycotts, though unaccompanied by violence or intimidation, have been pronounced unlawful in every State of the United States where the question has arisen, unless in Minnesota; and they are held to be unlawful in England." Since Judge Gould's decision was rendered the Supreme Court of the United States has decided unanimously that a boycott is also a violation of the Sherman Anti-Trust Law, because it is an action in restraint of trade. That Judge Gould was entirely justified in issuing his injunction is, The Outlook thinks, clear. A combination for the purpose of injuring the person, the property, or the business of another is an illegal combination, and it ought to be an illegal combination. That the action of the Federation of Labor in endeavoring to interfere with the trade of the Bucks Stove Company was such a combination it is impossible to doubt. Indeed, the purpose to destroy the business of that Company unless it would come to terms with the Federation of Labor was frankly avowed. The injunction was issued December 23, 1907.

Gompers, Mr. Mitchell, and Mr. Morrison, the first the President, the second the Vice-President, the last the Secretary, of the Federation of Labor, were brought before another Judge of the same courtJudge Wright. Thus the principle for which The Outlook has contended, that the judge who issues the injunction should not determine the question whether it has been violated, and if so, what the penalty should be, was observed in this case. The result does not indicate that the principle is, in application, of any very great practical value. The facts as they are stated in Judge Wright's opinion may be briefly summarized as follows: Judge Gould decided the case on the 17th of December, 1907; but the issuance of the injunction was made to depend upon the filing of a bond by the plaintiff to make good all damages if the injunction should not be eventually sustained. This bond was not filed, nor

the injunction issued, until December 23. The interim was occupied by Mr. Gompers in printing and mailing copies of a pamphlet in which the Bucks Stove Company appeared on the "unfair" list, his object being to get the copies into the mail before the injunction was issued. The more distant copies did not reach their destination until after the injunction was issued, and Judge Wright holds that, although mailed before the injunction, by mailing them Mr. Gompers violated the injunction, because, to quote the Judge's words, "the mails were his agents, chosen by him as the medium for delivering to distant points; and if, after the injunction became operative, he violated it through the instrumentality of his own hands or through the instrumentality of another medium of his own preference is all one." We find it difficult to take even seriously this contention that a man who mails a letter which he has a right to mail becomes guilty of a violation of the law because it is afterward delivered when he could not lawfully have delivered it in person. The reader should remember that after the circular was mailed it no longer belonged to Mr. Gompers, and if he had wished on the 23d to stop its delivery he had no legal right to do so. According to this branch of Judge Wright's decision, a perfectly innocent act by one person is made criminal by the perfectly innocent act of another person; namely, the postmaster in, say, California. The second act for which contempt is charged is of more doubtful character. The injunction forbade referring to the Bucks Stove Company, its business or its product, in the "we don't patronize" or the "unfair" list. After the injunction was issued display advertisements were published announcing that Judge Gould had prohibited the Federation from "publishing the fact that the Bucks Stove and Range Company is on the unfair list of organized labor." There is a fair opportunity to argue, on the one side, that this was an evasion and therefore a violation of the injunction, and, on the other hand, in the words of one of these advertisements, that "this is not in conflict with the injunction, but a statement of fact." Judge Wright does not, however, discuss this question; he assumes, without debate, that

these announcements violated the injunction. Statements made by the defendants prior to the injunction are quoted at some length by Judge Wright, including an extract from a volume of Mr. Mitchell's published in 1903, four years before the injunction. This particular sentence, whether justifiable or not, was certainly not criminal, and had not even a remote connection with those contempt proceedings four years subsequent to its publication. It is as follows: "When an injunction, whether temporary or permanent, forbids the doing of thing which is law ful, I believe that it is the duty of all patriotic and law-abiding citizens to resist, or at least to disregard, the injunction.” The justification adduced by Judge Wright for referring to these utterances made long before any injunction was issued is that they afford evidence that it was the predetermination of the defendants to violate the injunction if it should be issued. They seem to us, however, to throw very little light on the question whether in fact the injunction was violated or not. This cannot be said of other voluminous quotations from the publications and the speeches of Mr. Gompers after the injunction was issued. Few, perhaps none, of these utterances do in terms violate the injunction, but they are manifestly intended to keep before the labor constituencies the fact that the Federation of Labor is engaged in a bitter war with the Bucks Stove Company. The two following may be taken as types of these sentences: "This injunction cannot compel union men or their friends to buy the Bucks stoves and ranges." "They tell us that we must not boycott. Well, if the boycott is illegal, we won't boycott. But I have no knowledge that any law has been passed or any order issued by any court compelling us to buy, for instance, a range or a stove from the Bucks Stove and Range Company." These constitute, with one exception, all the forms, though of course not all the specific instances, of violation with which the defendants are charged. That exception is, curiously, an act not of Mr. Gompers, but of Mr. John Mitchell, who, a month after the injunction was issued, presided at a meeting of the United Mine Workers of America in which a resolution was passed in explicit terms placing the

Bucks Stove Company's stoves and ranges on the "unfair" list.

THE CONVICTION OF LABOR

LEADERS

Such are the facts in the two THE OUTLOOK'S JUDGMENT charges of the Bucks Stove Company against the Federation of Labor, as we gather them from a somewhat careful reading of the full and official copies of the opinions of Judge Gould of last December and of Judge Wright last week. To these facts we briefly apply the principles which we have laid down in the first of these four paragraphs. (1) The law in this case not legislative enactment, but the common law, as interpreted by a long course of judicial decisions both in this country and in England - makes a combination to injure the business of others, commonly called a boycott, an unlawful conspiracy. With the facts before him, and the decisions of the courts which had preceded, Judge Gould could render no other decision than he did, when he issued the injunction against the boycott which had been announced against the Bucks Stove Company by the Federation of Labor. (II) If Messrs. Gompers, Morrison, and Mitchell thought that this law was unconstitutional in that it violated their right of free speech, which claim is made (though we think the claim unfounded), or was immoral because it forbade them to do a lawful act in defense of the rights of labor (which we also think an unfounded claim), they had a moral right to disregard the injunction. But they did so at their peril -the peril of being adjudged by the courts guilty of an illegal act, and of being punished for so doing. He who violates a law for the purpose of making the country see the injustice of that law by reason of his martyrdom cannot complain if he is made a martyr. (III) The evidence that they did violate the injunction is not convincing. The only clear violation of it was the act of Mr. Mitchell in presiding at the meeting in January, 1908, which reaffirmed the boycott. Utterances made before the injunction may be legitimate evidence of a previous intent to violate the injunction, but they are not evidence that the injunction was violated. On no principles of justice or

common sense can mailing circulars before the injunction be regarded as a violation of it because they were delivered afterward by the Post-Office. Announcements of the decision of the court, whatever the effect of those announcements, can only by implication be regarded as a violation of the injunction. The skillfully worded utterances of Mr. Gompers came perilously near a violation, and perhaps overstepped the legal bounds. (IV) These questions, however, ought to have been considered in a judicial temper by Judge Wright, who tried the case. They were not so considered. His opinion is a passionate attack, if not upon Trades Unionism, certainly upon a Federation of Trades Unions. The New York Evening Post's correspondent calls it a "scathing denunciation of the defendants." Editorially, the same paper characterizes "the somewhat turbid rhetoric and occasional excess of heat in Judge Wright's opinion." The Evening Post will not be accused of undue sympathy with organized labor. It is evident that the undue heat of Mr. Gompers in a political campaign, a heat for which some excuse may be found in the fact that he was campaigning, excited a lie quality in Judge Wright, for whose passion the same excuse cannot be found. His opinion illustrates quite as strikingly as any quotation he makes from Mr. Gompers's writings "the furious way" and the "turbulence" of spirit and of measures which he condemns in the accused before him. And in the court-room, when the sentence was pronounced, the dignity of language was all manifested by the supposed criminals, and the passion by the Judge. Happily, this opinion is an exception to what is the general, though we regret not to say the universal, spirit of the judiciary. For if judges were generally to jump into the fight between the suitors before them, to reinforce the passion upon one side by passion of their own, the most important peacemaking and conserving influence in America would be destroyed.

Carnegie. Mr. Carnegie's article in the Century Magazine, already commented upon by The Outlook, in which the statement was made that the steel industry in America no longer needs protection, resulted in his being requested to appear before the Committee. Mr. Carnegie was questioned by Chairman Payne and other members of the Committee in detail, and in such a way as to indicate the desire of Chairman Payne and Mr. Dalzell to weaken the force of this expert testimony in favor of the removal of duties from steel products. Mr. Carnegie evidently shares the feeling of tariff reformers throughout the country that the Ways and Means Committee has not been interested in a serious attempt to revise the tariff in pursuance of the promise in the Republican platform. The following incident, recorded in the New York Evening Post's account of the hearing, throws not a little light on this aspect of the case:

An interesting bit of business within the Committee here took place, of which Mr. Carnegie evidently did not catch the drift. Mr. Payne had leaned over and whispered to Mr. Dalzell, who sat at his right. "I wish the chairman would tell me what he said to Mr. Dalzell. I think I ought to know," Mr. Carnegie said. Then, for the benefit of the auditors, while the room shook with laughter, making a trumpet of his hands, he leaned toward the audience, imitating the attitude assumed by Mr. Payne in whispering to Mr. Dalzell:

"I thought," he said, while the auditors shrieked with laughter, "that Payne leaned over to Dalzell and whispered, 'The jig's up.' Mr. Carnegie asserted that while a protective duty may have aided American steel manufacturers in establishing the business, it is the scientific methods of manufacture and efficient business organization, and not the duty, which has made our steel mills successful competitors of foreign producers. It is Mr. Carnegie's opinion that steel can be sold at considerably less a ton without preventing American steelmakers from making a handsome profit. It is said in reply to Mr. Carnegie that the United States Steel Corporation is willing to have the duty removed because its ownership in railways, ore fields, and other adjuncts of the steel business is so enormous that England, Belgium, and Germany cannot profitably compete with it on any terms; while with the duty removed foreign steel-makers can compete

with and perhaps drive out of business independent American manufacturers, thus leaving the field clear to the Steel Corporation. We do not believe this is the true explanation of Mr. Carnegie's attitude, but even if it were, it would not justify the maintenance of a duty solely for the benefit of a few manufacturers who have neither the facilities nor the genius to compete with the Steel Corporation without Government protection. The way to protect the American consumer from the real or fancied despotism of the Steel Corporation in the steel industry is not to try to foster some helpless antagonists who shall keep that so-called trust so busy that it will have no time to injure the consumer; the way is to regulate the Steel Corporation by some sort of Federal law that will enable the consumer at least to get a hearing for his grievances when he has any.

THE TREASURY AND ITS DEFICITS

The annual report of Secretary Cortelyou contains some startling

figures. It shows that the Federal Government during the current year has spent fifty-eight millions of dollars more than its income, and yet its current income was six hundred millions of dollars. At the present rate of income and expenditure Mr. Cortelyou estimates that the deficit, or excess of expenditure over income, will be very much larger, and on an increasing scale, in 1909 and 1910. It is true that part of the enormous deficit of the current year is properly explained by the business depression of last winter, and by the fact that some of the expenses of the Government, which by the present method of bookkeeping are charged to income account, should be charged to capital account. That is to say, the Government is already doing, in the case of certain permanent improvements, what, as we point out in an editorial on another page, it ought not to undertake to do in expenditures for the conservation of natural resources. In spite of explanations, however, the fact remains that in thirty years the Government's expenses have increased fourfold, from $135,000,000 in 1878 to $638,000,000 in 1908. A large part of this increase is justified by a parallel growth in population and government