HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

CHAPTER XV

THE SUPREME COURT UNDER CHIEF JUSTICE
FULLER (CONTINUED)



Seven days after its obliterating the income-tax law, the Supreme Court of the United States handed down a decision which was then regarded, and has been since, by both legal profession and lay public, as one of the most extraordinary on record.


The Pullman Workers’ Strike.


This decision was in the Debs case, which was a result of the great strike of the railway workers in 1894.  That strike originated in the grievances of the workers in the Pullman Company’s shops.  Organized in 1867 to build sleeping cars, the Pullman Company, by methods which we have already described,1 possessed itself of the title to five hundred acres of land near Chicago.  In addition to constructing its plant, it used two hundred acres for the building of what it called a “ model ” town.  In this it accordingly owned the houses, the water and gas supply — and, in brief, controlled the town of Pullman absolutely.  For its flimsy, congested habitations it charged its workers $18 a month rental ;  the cost of gas to the Pullman Company was thirty-three cents a thousand feet, yet the Company’s tenants, comprising its own workers, had to pay $2.25 a thousand feet ;  taking advantage of the complaisance of municipal officials, the company bought water at four cents a thousand gallons, and charged its tenants ten cents a thousand gallons for that same water.  For the mere privilege of having shutters on the houses, the occupants were taxed fifty cents a month.

The average yearly pay of the Company’s wage workers was $613.86.  But few of the workers ever received their wages in cash.  Tenants of the company, their “ debts ” to the company were subtracted from the wages due.  So greatly were they exploited, that numerous witnesses testified before the Special Commission appointed later by President Cleveland that at times their bi-weekly checks amounted to sums varying from fifty cents to one dollar.  Nor did the company produce witnesses to disprove these statements.

When, in the year 1893, a panic was in process, the company reduced wages one-fourth, yet it made no reduction whatever in its charges for rent, water, gas and other necessities.  The company asserted that its diminution of business and profits compelled this reduction in wages.  But the report of the Government’s Special Commission subsequently appointed to investigate the causes of the strike, showed that the Pullman Company’s statement was not only untrue, but flagrantly so.  This report, prepared in 1895, detailed how the company’s capital had been increased from $1,000,000 in 1867 to $36,000,000 in 1894, and how “ its prosperity has enabled the company to pay two per cent. quarterly dividends.”  In certain years, however, the dividends had ranged from nine and one-half to twelve per cent.  The Special Commission further reported that the company had, in addition, laid by a reserve fund of profits in the form of a surplus of $25,000,000 which had not been divided.  For the year ending July 31, 1893, the distributed dividends amounted to $2,520,000, and the wages for that year were $7,223,719.51.  In the ensuing year, when wages were reduced one-fourth, and went down to $4,471,701.39, the stockholders reaped an even greater amount in dividends than in the preceding year, namely, $2,880,000.2

Hence, it is evident that the remonstrances of the Pullman workers against the intolerable conditions under which they had to labor and exist were more than well founded.  The company refusing to consider their grievances, the workers, on May 11, 1894, declared a strike.  The interests of the Pullman Company and nearly all of the large railroad systems were closely associated ;  the same magnates were often found as stockholders in both ;  and by reason of its immense profits, the company was continually extending its holdings in railroad lines.  At present the only three railroads in which the Pullman Company has no interest are the St. Paul, the New York, New Haven and Hartford, and the Great Northern.


The Great Railway Strike of 1894.


It was, therefore, with a view to compelling the Pullman Company to come to terms that the American Railway Union, under the leadership of Eugene V. Debs, declared a general sympathetic strike.  But there were other strong reasons.  For twelve years the General Managers’ Association, representing twenty-four railroads centering or terminating in Chicago, had been in aggressive existence.  Leagued together in this powerful organization, these representatives of the railroad magnates were reducing the wages of railroad workers below the level of subsistence, and on the other hand “ were combined for the purpose of extorting high passenger and freight rates.  In law it was a conspiracy in restraint of trade, but it is needless to say that no writ of arrest had ever been issued against a single member of the General Managers’ Association.  Neither did any court presume to issue an injunction, sweeping or qualified.  Railroad workers, agitating for better conditions, were discharged and blacklisted3 yet for this offense the General Managers’ Association was not even questioned by the authorities.  This systematic campaign against the railroad workers led to the formation of the American Railway Union, composed of employés, and was one of the contributing causes of the great strike of 1894.

Repeating their successful ruse used at Pittsburg in the strike of 1877,4 the railroad corporations caused cheap, wornout freight cars to be set on fire,5 and then forthwith accused the strikers of violence and rioting.  This charge proclaimed through twenty thousand subservient newspapers, prejudiced the general public mind, and was immediately seized upon as a pretext for the ordering out of Federal troops.  Evidently Governor Altgeld knew the real facts, for he refused to call upon the President for troops.  In violation of the law, and against Altgeld’s protest, President Cleveland, ostensibly to quell rioting, but in reality to interfere with strikers assembling and picketing, hurried Federal soldiers to Illinois.  At the same time Federal judges, some of whom had been attorneys for the railroads involved, issued unprecedented injunctions which even went so far as to forbid the strikers from persuading fellow workers to quit work.

One of these injunctions was issued by the Federal judge, Peter S. Grosscup, at Chicago.  It was notorious that Grosscup owed his position to the influence of corporations ;  recent disclosures regarding his conduct both before he was a judge and since that time are supposed to have been instrumental in causing his recent resignation.  Grosscup’s brother, Benjamin, was a Northern Pacific Railroad attorney.  On July 3, 1908, Charles H. Aldrich, a Chicago attorney who had originally indorsed Grosscup for the judgeship, sent to United States Attorney-General Bonaparte a communication in which he accused Grosscup of having asked railroads for free transportation for himself and family and for others.  After specifically charging Grosscup with other alleged malfeasances, Aldrich continued with this specific arraignment of Judge Grosscup’s methods :


There are many other acts calling for the severest censure and utterly incompatible with a high sense of judicial integrity ;  e.g., his connection with the Mattoon street railroad scheme.  You will note that he caused this company to have business relations with the Guarantee Trust Company of New York, which had then but recently become a complainant in his court and upon whose bill he had appointed receivers for all the traction properties of the north and west sides.  It is known that money was borrowed through the assistance of the people represented by the Guarantee Trust Company to enable Mr. Sampsell, one of the receivers and at the same time clerk of the United States Circuit Court, to pay for his interest in the property.

The receivership was a friendly one, the parties seeking a reorganization of the properties.  Ultimately, they desired the assistance and coöperation of the court and its receivers.  When, therefore, Mr. Sanipsell applied for a large loan to the parties interested in the litigation, and supported his application with a letter from Judge Grosscup, it was natural that these parties complied with the request through arrangements with the Knickerbocker Trust Company.  Perhaps this was rendered more probable by the order entered of record as an excuse for violating the statute forbidding the appointment of any clerk of court as receiver except for good cause shown.  This recited that Mr. Sampsell was appointed because he was near to the court.

The subsequent history of the Mattoon enterprise has been shameful and calculated to discredit the lectures of the same judge delivered in in parts of the country on the subject of overcapitalization and popularization of the trust.

This history need not be followed.  The view I wish to express is that a judge should not be in such relations to litigants and receivers in his court.

There are stories of a large speculative account carried by the judge with H.B. Hollins & Co., of New York, who were among the principal holders of the traction securities, and back of the suit of the Guarantee Trust Company.  I have no positive knowledge on this subject.


It was Grosscup who, at a critical stage in the strike, caused Debs and his associates to be haled up for contempt of court, and it was Grosscup who, acting as prosecutor, judge and jury all in one, convicted them of contempt of court, and sentenced them to jail.


Habeas Corpus Denied to Debs.


Debs, on January 14, 1895, applied to the Supreme Court for a writ of habeas corpus.

His counsel, Lyman Trumbull, a noted lawyer who himself had represented corporations, began his argument by reciting the circumstances of “ the extraordinary proceeding under which the prisoners were deprived of liberty.”  This action was begun by the filing of a bill of equity in the name of the United States under the direction of Attorney-General Olney.  As we have seen, Olney had been a railroad director.6  The bill was unsigned by anyone, and “ has attached to it an affidavit of George I. Allen, an unknown person, having, so far as the record shows, no connection with the case, stating that he has read the bill and ‘ believes the statements contained therein are true.’ ”  Was there anything unlawful, Trumbull asked, in the American Railway Union calling upon its members to quit work ?  If not, then Debs and associates were not engaged in any unlawful combination or conspiracy.  The boycott of the Pullman cars was, as the bill clearly showed, not to obstruct commerce, but for an entirely different purpose.  Refusing to work, Trumbull went on, was no crime.  Although such an action might incidentally delay the mails or interfere with interstate commerce, it was a lawful act and no offense.  The act of Congress to protect trade and commerce against unlawful restraints and monopoly did not apply to the case stated in the bill ;  if so, Trumbull said, it was unconstitutional.

Justice Brewer delivered the decision of an unanimous Court.  The remarkable sight was now presented of this “ great and honorable court ” deciding the case upon a point in no way involved, thus violating one of the most fundamental principles of law.  Brewer denied Debs’ petition upon the ground that he and associates had obstructed interstate commerce traffic by derailing and wrecking engines and trains, and assaulting and disabling railroad employés.  If this were true, why was it that no such criminal action had ever been brought against Debs ?  And if it were true, Debs could have been convicted and sentenced to prison for a long term, instead of getting the sentence of six months in jail for contempt of court that the Supreme Court of the United States on May 27, 1895, thus affirmed.  In the very act of sending Debs to jail the Supreme Court established (as an entering wedge) the ominous precedent and principle that the Federal anti-trust law applied to combinations of wage workers.7

Of the Justices sanctioning this decision, these particulars, repeated here, are pertinent as indicating class bias :

Chief Justice Fuller had been counsel for Marshall Field, chief owner of the Pullman works, and he had represented the Chicago, Burlington and Quincy Railroad and other railroad capitalists and interests.8

Justice Field had been placed on the Supreme Court Bench by the Central Pacific and the Southern Pacific Railroad interests.

Field’s nephew, Brewer, had been sponsored by the same and allied interests.

Justice Gray was a capitalist with varied interests and connections.

Justice Shiras had represented the Baltimore and Ohio Railroad system.

Justice Brown had represented the Vanderbilt and other railroads as counsel in Michigan, and was a corporation stockholder.

Justice White was a rich Louisiana sugar planter.

Touching unanimous decisions, it will be desirable to insert a few words here of a decision of the Supreme Court of the United States which gave Justice Gray another sizeable fortune.


Justice Gray, “ Next of Kin.”


His grandfather, William Gray, had been one of the largest shipowners in New England, and was one of those asserting that his interests had suffered from French spoliations after the French Revolution.  For more than eighty years attempts were made to lobby through Congress acts to indemnify these claimants, but the claims were regarded as nothing more or less than tenacious efforts to raid the Treasury.  Finally, in 1885, Congress was induced to pass an act authorizing the referring of certain claims to the Court of Claims.  One of these was the Gray claim.

The question, however, was :  Who should get the money appropriated as indemnity for spoliations of William Gray’s ships ?  That William Gray had gone bankrupt was undeniable.  The Massachusetts Supreme Court had decided that the indemnity funds which had been paid to Codman, administrator of the Gray estate, should “ be paid over as assets to the estate of William Gray, the elder, and as passing under his will to the residuary legatees named therein.”9  These legatees were charitable and other societies.

But the Supreme Court of the United States upset this decision.  In delivering the unanimous decision of this Court, Chief Justice Fuller held that the act of Congress of March 3, 1891, should be construed to read not that the payments should go to the creditors, legatees, assignees or strangers to the blood, but that they should be turned over to the next of kin.  And by “ next of kin,” Fuller explained, was intended “ next of kin ” at the time the act was passed.

The “ next of kin ” in this case was Fuller’s colleague, Justice Horace Gray, who thereby was enabled to add a goodly sum to his bank account.10

A new Justice to succeed Jackson now came on the Supreme Court Bench in the person of Rufus W. Peckham.  President Cleveland had at first successively nominated William B. Hornblower and Wheeler H. Peckham, both corporation attorneys.11  But they belonged to a political faction in New York inimical to United States Senator David B. Hill who now in retaliation fought down their nominations with success.  Cleveland then compromised on Rufus W. Peckham, a brother of Wheeler H. Peckham.


Justice Peckham’s Career.


Rufus W. Peckham was a son of a jurist of the same name who had been a judge of the New York Court of Appeals and had died in 1873.  The junior Rufus, in 1866, married a daughter of D.H. Arnold, President of the Mercantile Bank, of New York City.  He became a member of the law firm of Peckham and Tremaine (later Peckham and Rosendale) in Albany ;  was elected District Attorney of Albany County in 1869, and subsequently Albany’s Corporation Counsel.  From thence on his private practice was large and lucrative.

We find Rufus W. Peckham as one of the counsel, in 1872, for the notorious Tammany judge, John H. McCunn, of the Superior Court, New York City.12  The Bar Association preferred charges of corrupt conduct against McCunn ;13  Peckham vigorously defended him at the trial, but McCunn was found guilty on eight specifications, impeached and removed from office.14  Six years later, Peckham appeared as counsel for John F. Smyth, Superintendent of the Insurance Department of New York State.  Smyth was charged with malfeasance and corruption.  The influence of the great insurance corporations was concentrated upon bringing about his acquittal ;  and by a vote of 19 to 12 (thus lacking the constitutional two-thirds majority) the New York Senate decided not to remove him from office.15  In 1883, Peckham was counsel for Lorenz B. Sessions, charged with bribery, and in the course of his argument Peckham pleaded that “ an acquittal would hurt no one, but the question of conviction was serious, for if a conviction was had, the defendant would be sent to prison for a term of years.”  Much comment was made upon Peckham’s peculiar views on the offense of bribery, in his arguing that bribery was a secret transaction, and that the informer was a “ squealer.”

As counsel or trustee or both for many banking, insurance and other corporations Peckham’s practice and activities were extensive.  His investments were considerable.  In 1884 he was elected a trustee of the Mutual Life Insurance Company of New York, and continued in that capacity for twenty-one years.  His associates on the board of trustees of that company at various times comprised many of the most powerful capitalists in the world ;  George F. Baker, Cornelius Vanderbilt, Henry H. Rogers, William Rockefeller, James Speyer and many others of lesser, but still enormous, power.16


His Magnate Associates.


Baker was president or vice-president or director of more than thirty corporations ;  he was the President of the First National Bank and a director in other banks ;  first vice-president and director of the Central Railroad of New Jersey, director of the Delaware, Lackawanna and Western Railroad, of the Northern Pacific Railway, of the Lehigh and Hudson Railroad, of the Consolidated Gas Company, trustee of the Southern Railway Company, etc., etc.17

The Standard Oil Company, in which Rogers and Rockefeller were among the few dominating magnates, then largely or wholly controlled, in league with the Goulds, twelve railroad systems with a total mileage of 28,157, and a total capitalization of $1,368,877,540.  These systems included the Missouri Pacific, the Texas Pacific, the Wabash, the St. Louis Southwestern, the Denver and Rio Grande, the Wheeling and Lake Erie, the Western Maryland, the Chicago, Milwaukee and St. Paul, the Colorado and Southern, and other railroad lines.18

The Vanderbilts controlled about eleven railroad systems — 21,888 miles of railroad in all — capitalized at more than a billion dollars, and they held formidable interests in other railroads.19

The J. Pierpont Morgan group, also represented on the board of trustees of the Mutual Life Insurance Company, was allied with James J. Hill in the control of 47,206 miles of railroad lines, capitalized at more than two billion dollars.20  Other groups of railroad capitalists were likewise represented.

But the railroad ownings of Peckham’s fellow trustees were only a fragment of their entire interests.  Rogers was an officer or director of twenty-five large corporations including railroads, great copper companies, gas corporations and others.21  Fish was an officer or director of twelve different corporations ;22  Julliard of twenty-one;23  William Rockefeller of thirty-one ;24  Iselin of twenty-seven ;25  Cornelius Vanderbilt of twenty ;26  Speyer of seventeen ;27  Lanier of eighteen ;28  Haven of thirty-two ;29  and so on.  The ramifications of the power of these men, owning and controlling, as they did, billions of dollars of the country’s resources, were stupendous.


Corruption by the Mutual Life Insurance Company.


Much of the immense surplus of the life-insurance companies was invested, by vote of the trustees, in the great outpourings of watered railroad and industrial stocks.  The Mutual Life Insurance Company alone held, in 1904, assets of $440,978,371 ;  it had liabilities of $366,620,553, and its surplus was $74,357,818.  The revelations before the New York Legislative Insurance Committee, in 1905, are perhaps tolerably well remembered ;  how syndicates of “ insiders ” made vast profits by dumping watered stock, which they as directors of railroads and other corporations had issued, upon the insurance companies, and how for decades corruption funds had been distributed in every legislative center to insure the passage of favorable special legislation and the defeat of laws hostile to the insurance company looters.

“ The testimony,” reported the legislative committee, “ taken by this committee makes it clear that the large insurance companies systematically attempted to control legislation in this [New York] and other States, which could affect their interests directly or indirectly.  The three companies divided the country, outside of New York, and a few other States, so as to avoid a waste of effort, each looking after its chosen district and bearing its appropriate part of the total expenses.”30

One of these three companies was the Mutual Life Insurance Company.  At Albany it maintained a sumptuously appointed house, jocosely styled “ the House of Mirth,” where Andrew C. Fields, its regular lobbyist, manipulated legislation and distributed corruption funds.  “ At times,” reported the Committee, “ members of the Senate while serving on its Insurance Committee, lived at this house in Albany which the Mutual maintained.”31  The corruption funds were cloaked under the guise of “ legal expenses ”;  from 1898 to 1904, the Mutual Life Insurance Company thus corruptly expended more than $2,000,000.32  Vast thefts of the policy holders’ money were committed in the Mutual’s “ Supply Department ” which was under Fields’ charge.33  “ Large sums,” the Committee further reported, “ have been expended in the attempt to influence public opinion through the press by the insertion of so-called ‘ reading notices’;  that is to say, by disguised advertising and by payments to newspaper correspondents and news writers for presumably similar services.”34


Manipulation of Elections.


Of the Mutual Life Insurance Company, the Committee still further reported that “ it is a purely mutual company, and in theory is governed exclusively by its policy holders. . . . In practice the policy holders have had little concern with the selection of trustees or with the management of the Company.  Notices of election have been published in New York City papers — but have not been mailed to policy holders.  There are probably between 400,000 and 500,000 policy holders entitled to votes for trustees, but for a long period of years not more than 200 votes have been cast at any election.  The voters who vote personally have generally been employés of the company or of subsidiary companies.  The policy holders are entitled to vote by proxy, but as a rule proxies have not been used.  In order to secure the continuity of the management and to guard against an uprising of the policy holders, proxies to the extent of 20,000 or more were held by President Richard A. McCurdy and Vice-President Richard Grannis, having been obtained, under suitable instructions, by the local managers. . . . The result has been an autocracy maintained almost without challenge.  Whatever efforts have been directed against it have proved abortive.”35


Peckham Did Not Protest.


Peckham, as we have said, was a trustee of the Mutual Life Insurance Company for twenty-one years, beginning in 1884.  He had been on the Bench of the Supreme Court of the United States for nearly ten of the years covered by this report.

Was he unfamiliar with this colossal corruption and these illegal methods ?  If he were, then he was unfit to be a trustee of a company of the administration of which he was ignorant.

This lack of knowledge might be assumed of an official who served but a short time ;  but Peckham had been a trustee continuously for more than two decades.  Moreover, as we have seen, Peckham, back in 1878, had defended State Insurance Superintendent Smyth, charged with corruption ;  the details in that long trial were such that they could hardly have left anyone innocent of the methods of the life insurance companies.  We have also seen how Peckham had defended the corrupt Judge McCunn, and how in the Sessions case he had slighted the gravity of the offense of bribery.  Finally, in view of the disclosures concerning the autocratic methods by which a few men manipulated the choice and election of trustees, was it possible that he would have been kept on the board of the Mutual’s trustees if he had not been passive or subservient ?

During the twenty-one years as trustee, Peckham did not once protest.  On the contrary, he retained his office and associations.  Not until during the height of the disclosures before the Legislative Insurance Committee, when the New York World addressed some sharp editorial letters to him, did he resign ;  and this he did, in November, 1905, with many sanctimonious expressions of “ righteous indignation.”  During the very time that he was serving as a trustee of the Mutual Life Insurance Company he was, as a Justice of the Supreme Court of the United States, handing down decisions declaring certain anti-corporation laws unconstitutional — decisions of incalculable value to his capitalist associates.36  It was this same Peckham, blind (let us assume) to the prodigious corruption of the corporation of which he was a trustee, who saw and declared that a law establishing a ten-hour work day for hard-driven bakeshop workers was unconstitutional.

Peckham’s appointment to the Supreme Court of the United States represented another significant stage of economic development.  His associates on the Mutual Life Insurance Company, especially during the latter part of his trusteeship, were not exclusively railroad magnates, factory owners or banking grandees.  Their elaborate interests embraced railroads, banking syndicates, street railway systems, electric light plants, coal mines, copper, gold and silver mines, realty companies, and industrial trusts of all descriptions.  In those men, or some of them, was concentrated the control of some of the mightiest trusts which, in turn, controlled a host of subsidiary trusts.  They were the arch-types of the newer era of trusts and the sway of trusts.

Briefly, we shall now give a succession of decisions of the Supreme Court of the United States, the first in the list of which was given before Peckham’s appointment.


The Sugar Trust Decision.


On January 2I, 1895, the decision in the action of the Government against the Sugar Trust was handed down.  This trust controlled 98 per cent. of the output of sugar, yet the Supreme Court decided that it was not a combination in restraint of trade under the Sherman anti-trust act.37

This decision demonstrated that the Supreme Court was pro-trust, and could be surely depended upon to validate any trust in maintaining its monopoly.

From the point of view of industrial progress, there was nothing in this decision intrinsically open to criticism ;  the trust was a superior institution to the archaic, passing one of unrestricted competition, and was bound to prevail by force of its economic superiority.  But the fact to be noted is that, despite drastic legislation against trusts, the Supreme Court could or would not see that it violated the laws.  In the Debs case a little later it microscopically searched laws to find a ground on which to commit Debs to jail, and had to invent a fictitious point in order to do it.  In the one case, the Supreme Court of the United States refused to enforce the clearest and most unmistakable laws against powerful capitalists ;  in the other, it manufactured law in order to strike a blow at the workers by jailing one of its most active, sincere and able leaders, thus setting a precedent for the future imprisonment of other labor leaders.


Long-Continuing Sugar Frauds.


Exempted from hostile decrees, the Sugar Trust, as later developments proved, set out vigorously on an even more oppressive process of illegally undermining remaining competitors, and at the same time defrauded the Government of vast sums by the underweighing of imported sugar material.

The testimony recently given — May and June, 1911 — before the Stanley Congressional Investigating Committee revealed that the Sugar Trust had been a trust since 1887 when, as Edwin F. Atkins of Boston, acting president of the trust testified, seventeen sugar-refining companies had been organized into a trust by H.O. Havemeyer.  Atkins admitted, too, that the trust had, in violation of law, consistently received rebates from the railroads.  Of the mass of corroborating testimony we shall not reproduce more here.  And as to the methods used by the Sugar Trust in trying to rid itself of a dangerous competitor like Spreckels, one of many facts testified to was that dead rats were surreptitiously placed in barrels of sugar packed in Spreckels’ factory. The import frauds of the Sugar Trust were so gigantic that when they were discovered in 1908-1909, that trust hastened to pay over in April, 1909, a settlement of about $2,000,000 to the Government, hoping to avert criminal proceedings.  It was estimated that the total sums of which the trust had defrauded the Government reached tens of trillions of dollars.  One of the directors of the Sugar Trust during this period was John E. Parsons who made the argument for the trust before the Supreme Court of the United States, in 1894.  He and all the other responsible magnates escaped criminal punishment ;  they were indicted in 1909, it is true, yet not for customs frauds, but for violations of the anti-trust act.  The only punitive action enforced was against a few trust employés, and some Government weighers who had been bribed.  They were sent to prison.


A Series of Decisions.


To return to the succession of Supreme Court decisions :

On March 30, 1896, that Court nullified the grant of power to the Interstate Commerce Commission to settle maximum rates for railroad transportation.38

On the same day the Supreme Court handed down a decision practically allowing interstate railroads license to charge two or three times as much for carrying American, as for foreign, freight, between the same points and conceivably on the same car.39

On the other hand, the Supreme Court of the United States, in the Arago case, so construed the thirteenth Amendment to the Constitution as to make it the basis for a new form of involuntary servitude for all workers, white, black, red or yellow.

Robertson, Olsen, Bradley and Hansen, seamen who had shipped by contract in the bark Arago, decided because of intolerable conditions, to quit work when the vessel reached Astoria, Oregon.  They were subsequently arrested at San Francisco, and were charged under Rev. Statute 4596, with refusing to work.  When their petition for a writ of habeas corpus came before the Supreme Court of the United States, that Court held that the statute in question did not conflict with the Constitutional amendment forbidding slavery and involuntary servitude.  That provision, the Court said, was never intended to apply to such contracts ;  the contract of a sailor involved, to a certain extent, the surrender of his personal liberty during the life of the contract.40

It can easily be seen how such a precedent can be stretched a little further to cover workers of all kinds as well as labor unions signing contracts.  Whatever oppression and injustice are heaped upon them, workers can be held in servitude to the letter of their contract, while if the capitalist decides to throw his workers out of jobs, he can plead various reasons for justification, and no contract is enforced against him.

More decisions favorable to railroad corporations followed.  On May 24, 1897, the Supreme Court handed down a decision reasserting and even amplifying some of its previous anti-interstate commerce decisions.41

It repeated the performance in an anti-interstate commerce decision, on November 8, 1897.

On March 7, 1898, the Supreme Court’s decision in the Nebraska maximum rate case was made public.  This decision was another step in the process of stripping the Interstate Commerce Commission of the power given it by Congress to make interstate railroad rates reasonable.  The effect of the decision was to nullify legislation in many States, and allow the railroads to charge what rates they pleased in both intrastate and interstate transportation.42

In that same year the Supreme Court, on October 24, decided the live-stock cases, both companion cases to the Sugar Trust cases.  Although each of these live-stock combinations was flagrantly violating the laws in restraint of interstate commerce, a bill of immunity was extended to both by the Supreme Court.43

The decision in the Joint Traffic Association case was handed down on the same day.  The unsophisticated accepted this decision as one of an anti-trust nature, but the well-informed believed that this association, representing thirty-one railroads, wanted a decree for its formal dissolution, so as to be able to plead arguments for the necessity of legislation by Congress virtually allowing combination.  Ostensibly defendants, they in reality secured a much-desired decision which they were making great pretenses of contesting.44

The decision in the Addyston Pipe and Steel Company case was hailed as one adverse to the trusts, but this company was entirely too small to be ranked among the great trusts and it was believed that the suit for its effacement was secretly instigated by great capitalists objecting to its competition or scheming to annihilate it.45

One of the Supreme Court’s decisions of immense value to the land-grant railroads was that of May 31, 1898, declaring that the land grant of the Northern Pacific Railroad, under the act of July 2, 1864, extended two hundred feet on each side of the track along the entire right of way.  The railroad company did not bring ejectment proceedings until 1877, by which time cities and towns had been built along the road ;  and not until after these sites had become of great value did the company think of asserting title to these valuable stretches of real estate under its claim of right of way.  This decision, of course, presented the company with property worth vast sums.46

These are a few typical decisions of the Supreme Court of the United States during this period.  The infirmities of age were publicly exhibited in a painful and pathetic manner on the exalted Bench of the omnipotent Supreme Court of the United States.  During the hearings of some of the most important cases, Justice Gray, suffering from kidney trouble, frequently fell asleep ;  Justice Shiras often nodded in slumber, blissfully oblivious to the learned arguments of learned counsel who were often put at their wits’ end to conceal their confusion.  As for Justice Field, he could be seen, on occasion after occasion, staggering to his seat, all out of breath, his eyes bulging, and his frame in the shiver of extreme decrepitude ;  he required all assistant to hold him up.


McKenna Chosen to Succeed Justice Field.


Field died on April 9, 1899, aged nearly eighty-three years.  As personal wealth went, his estate was comparatively inconsiderable.  By his will, dated May 5, 1897, he bequeathed the whole of his real and personal estate to his wife, excepting a portrait of his sister Emilia which he left to his nephew (Emilia’s son), Associate Justice Brewer.  Mementos and books were bequeathed to other members of the family.  Field’s real estate consisted of his fine house and grounds facing the east front of the Capitol, which property he had received from his brother, David Dudley Field, in 1880.  This property was valued at from $80,000 to $100,000.  According further to the inventory of Field’s estate filed May 5, 1899, the value of his personal estate was $65,000, comprehending “ a library, household effects, horses and carriages of the value of about $15,000, and also a small balance in bank, stocks and bonds and promissory notes which will not exceed in aggregate the value of $50,000, making the total value of his personal estate about $65,000.”  Including both real and personal property Field’s estate was, therefore, about $165,000.

Here again was another example of a judge who by his decisions had given vast properties and privileges to individuals and corporations but who was incorruptible as far as bribes or jobbing were concerned.  Probably no judge was ever a more open, undisguised tool of great capitalist interests than Field ;  no judge served their purposes more unblushingly and with less disingenuousness.  But it is evident that he personally profited nothing ;  his corruption was that of a purely mental subservience induced by his class views, attachments and obligations.  For thirty-six years Field had been on the Bench of the Supreme Court of the United States, and at the end of that time he left less of an estate than many a petty merchant or even a half-way successful shyster lawyer.  No one could be more brutally inhuman than Field in his application of law (or what he construed to be law) to the advantage of capitalists and to the subjugation of the workers.  Yet as his will revealed, he had his personal human qualities ;  he did not forget the twenty-five years of faithful service of his messenger, William Joice, to whom he left a legacy of $500.

Field’s successor, appointed by President McKinley, was Joseph McKenna, of California.  McKenna had been an obscure “ crossroads ” lawyer at Suisun, California.  The politics of California were notoriously controlled by the Southern and Central Pacific railroads ;  the political bosses were the creatures of the Stanford-Huntington group who saw to it that no one unfriendly to their interests was elected or appointed to any office.  McKenna was elected district attorney in his county, but was thrice defeated for Congress because of his Roman Catholic faith.  But in 1884 he was successful, and was reëlected to Congress of which he was a member for three successive terms.

In Congress McKenna spoke little, but when he did so it was for the railroads’ interests, particularly those of the Central Pacific Railroad Company.  In the debate over the bill, in 1887, to establish the Interstate Commerce Commission, he protested against the long and short haul clauses, and was one of the forty-one Congressmen voting against the bill.47

When the General Deficiency bill came up in the House, in February, 1891, he again made himself conspicuous by his defense of the Central Pacific Railroad.  At that identical time, the Central Pacific owed the Government $60,000,000 in principal and interest.  Despite this debt, the Supreme Court of the United States had (as he have already noted) handed down a decision compelling the Government to pay the railroad for the transportation of troops, supplies, etc.  The General Deficiency Bill contained an appropriation of $3,000,000 to pay these railroad claims.  McKenna spoke in favor of the provision.

McKenna :  “ We know, sir, that the grants to the railroad had their impulse in patriotism — a patriotism enterprising and conservative.”  [The reports of the Senate “ Wilson ” Investigating Committee, the Pacific Railway Commission and the San Francisco Grand Jury had successively and specifically revealed that the kind of “ patriotism ” used had been the distribution of a total of more than $4,000,000 in bribes.]48  “ Mr. Chairman,” McKenna went on, “ there is nothing to justify the refusal of this payment except a false sentiment, and possibly some false politics.”

A member —“ Claptrap ! ”

McKenna :  “ And as the gentleman near me suggests, claptrap.  It would be claptrap if it were not adorned by gentlemen of ability, and sanctioned by them.”49


The Pacific Railroads Victorious.


Soon after this, McKenna, on March 17, 1892, was appointed a United States Circuit Court judge, to sit in the California circuit.  A year later Leland Stanford died, and it was stated that McKenna was named in the will as one of the executors.  When McKenna was on the Circuit Bench the suit of the Government to recover $15,237,000 from the Stanford estate as its share of the Pacific Railroads’ indebtedness, was decided by that court against the Government.  This decision was sustained by the Supreme Court of the United States.50  Various other cases affecting the interests of the Pacific railroads were decided favorably by the Circuit Court when McKenna was a member.  The action involving the claim of the Southern Pacific Railroad Company to continued possession of the water front of Oakland was held up for nearly two years, creating much unfavorable popular feeling, and in the case of the railroads against the California Railroad Commission, McKenna’s colleague, Judge Ross, delivered the Court’s decision holding that the Commission had not the power to fix rates, and that the eight per cent. reduction ordered was illegal.51

During the American Railway Union strike in 1894, this court also issued a comprehensive injunction restraining the strikers from interfering with the United States mail trains.  The injunction enabled the railroads to defeat the strikers by attaching mail cars to all trains, and by carrying Federal troops ostensibly to protect those cars.

When McKinley became President in 1897, he appointed McKenna Attorney-General of the United States.  It was currently reported in the newspapers, and not denied, that McKenna consented to accept this post on the understanding that when Justice Field resigned he would be appointed to succeed Field.  At this point it should be noted that E.H. Harriman was acquiring the Central, Southern and other Pacific railroads ;  Harriman contributed heavily to McKinley’s campaign fund, as he later did to Roosevelt’s.  McKenna’s appointment as Attorney-General aroused a storm of severe criticism, the point of which was that his decisions had always favored trusts and corporations.


Protests Against McKenna’s Appointment.


But those criticisms were mild compared to the widespread strictures upon him when he was appointed to the Supreme Court of the United States.

Protests poured in upon the United States Senate.  One extended petition from Oregon, signed by former United States Attorney-General George H. Williams, Judges Gilbert, Shattuck, Sears, George, Bellinger and many others, including fifty members of the Portland (Ore.) bar, demanded the rejection of McKenna’s appointment, on the ground that he was unfit.  “. . . The Hon. Jos. McKenna among his legal brethren has not been accorded a high place, but on the contrary, the consensus of opinion has been and is that he is not, either by natural gifts, acquired learning or decision of character, qualified for any judicial place of importance, much less for the highest place in the land. . . .”

On December 6, 1897, a memorial signed by many prominent lawyers, was sent from San Francisco to the Senate :  “ In the first place, we accuse the judge of being slow and incompetent.  He is a man of confused ideas, and his record on the Bench is disgraceful. . . . During the last two years of his administration of the affairs of his circuit, he had but three jury cases, six court cases, twenty-seven demurrers and motions.  Many of the demurrers were left undecided.  On retiring he left thirty-five important matters wholly undecided.  He had one case of minor importance under advisement for two and a half years.  In Case No. 12,127, the suit of the Railroad Commission against the Southern Pacific Railroad, he was six months hemming and hawing over the simplest matters ;  questions that any other judge of the most mediocre ability would have passed on inside an hour.  He feared he would displease either the railroad or the people.”  The petition concluded by referring to McKenna as “ a small man in every sense, and a cunning politician and trimmer.”52

According to a San Francisco newspaper which had bitterly opposed the Southern Pacific Railway, “ those opposing McKenna have been working stealthily for their petition. . . . Their excuse for not coming out more boldly is that if it had been known ... W.F. Herrin and the Southern Pacific would at once have started a counter petition. . . . This would have been done in gratitude for the Railroad Commission case, and the silence on the Open Water Front controversy. . . . At the time of the decision, some of the remarks made by the attorneys for the people were of so decidedly a derogatory nature that it was a wonder that they had not become public. . . . Stories are put in circulation that McKenna is not of a mental caliber to sit upon the Supreme Bench, but behind the open controversy looms up a more guarded insinuation of the Attorney-General’s subjection to corporation influences.”53

In addition to these and other protests many newspapers in editorials severely denounced the appointment.  Of the numerous editorials, we shall quote from the New York World, a Democratic newspaper which, however, had virtually advocated the election of McKinley in the McKinley-Bryan campaign of 1896.  Said the World of McKenna :

But he is equally unfit by reason of his affiliations and actions as a lawyer and a judge.  He has been the tool of corporations and the pet of plutocrats.  His advancement has been due entirely to the favor of Stanford, Huntington and other multimillionaires of his section.  Every important decision he made in corporation cases was clearly in the interests of his former clients.  He represents in a peculiar degree that perversion of judicial power to the service of plutocracy, against which 6,500,000 voters protested in the last election.  [This referred to the Bryan campaign, the platform of which severely criticized the Supreme Court for its shifting on the income-tax decision.]  To confirm him in a seat on the Bench of the Supreme Court would be an infamous betrayal of the people’s trust.54

Another editorial in the same newspaper the next day declared :

The nomination of McKenna to be a Justice of the Supreme Court is a scandalous abuse of the appointive power.  (1) The man’s unfitness by reason of a lack of learning, a lack of capacity, a lack of fruitful experience and a lamentable lack of that high integrity which is the most essential qualification of a Supreme Court Justice, is attested by the indignant protest of the judges and lawyers in his own part of the country.  (2) His entire career has been one of servitude to the Pacific Railway robbers, trust magnates and their kind, and even his decisions as a judge upon the bench have been tainted by evidence of that subserviency.  It is a shame to put this man upon the bench of the highest court in the land.  It is a wrong to the nation and its people.  It is an insult to widespread public opinion.  It is a menace to the public welfare.  It is a blistering disgrace to the administration which is responsible for it.  The Senate’s duty is clear.  It should reject the nomination as shamefully unfit.55

A Suspicious Feature.


No doubt much in these protests was well founded and to the point.  But there was one suspicious feature of the opposition to McKenna which we cannot pass by without comment.

And it was so understood in Washington.  The batches of petitions and protests against the confirmation of McKenna were of no avail, especially in a Senate where but few members were not railroad attorneys or railroad magnates, and where Harriman’s influence at that particular stage proved all potent.  McKenna’s nomination was confirmed.

Few appointments to the Supreme Court had aroused such caustic personal criticism, publicly expressed, as that of McKenna.  Yet it must be said that McKenna’s course on the Supreme Court Bench was by no means all that the charges in those protests would lead one to expect.  In one memorable case, at least, his dissenting opinion stood forth as an exceptional and noteworthy defense of the grossly invaded rights of kidnapped working-class leaders at a time when the most powerful capitalist interests were banded in an effort to prosecute those leaders to the limit of judicial execution.

This, however, is anticipating.  With McKenna’s confirmation criticism of his career ceased, but an occasion arose three years later when both he and Harlan were invidiously attacked in the United States Senate.  As a result of the Spanish-American War, in 1898, the United States acquired Porto Rico and the Philippines.  Instantly, trusts and other syndicates of capitalists set out to take advantage of the change.  The Tobacco Trust, the Sugar Trust and other trusts coveted lands in the conquered regions and trade advantages, while associations of powerful capitalists rushed to get concessions for railroads, water rights, timber lands, mines, and, in brief, all of the resources worth while appropriating.


“ Constitution Does Not Follow the Flag.”


But the question remaining unsettled was this :  Were those colonies to be held as subjugated possessions or were they to be admitted as integral parts of the United States ?  Did the Constitution apply to them ?

To determine this issue, several test cases growing out of disputed customs payments were carried up to the Supreme Court of the United States.  During the time when these “ Insular Cases ” were under consideration, President McKinley nominated sons of Justice Harlan and Justice McKenna to important Government posts in Porto Rico.  This fact led to biting comments by Senators Pettigrew, Teller and Butler on the subverting of the “ independence of the judiciary ”;  the appointments, they declared, singularly coincided with the fact that the question of the status of the colonies was before the Supreme Court at that precise time.  The general effect of the various associated decisions was certainly in line with that desired by McKinley and the capitalist groups behind him.  “ The Constitution did not follow the flag,” the Supreme Court decided, thereby reducing the insular conquests to mere appendages.

Since this decision, the spoliation of the Philippines has gone on uninterruptedly ;  syndicates and trusts of American capitalists have obtained from the local officials great areas of sugar and timber lands, mines, coal deposits and railway and other concessions.

At this point it is necessary to chronicle the appointment of three new Justices of the Supreme Court.  The first of these was Oliver Wendell Holmes, Jr., selected to succeed Justice Gray, who died in 1902.


Justice Holmes Succeeds Gray.


Holmes was of a different type from the usual Supreme Court appointment.  He had never represented any large corporations.  As a member of the Boston firm of Shattuck and Holmes, his practice was for comparatively small corporations, middle-class business men and rich landholders of, however, a not very important group compared to the great plutocrats.

Shattuck and Holmes had been attorneys, beginning in 1873, for such corporations as the Dorchester Insurance Company ;  the Winnisimmet (ferryboat) Company ;  the receivers of the Mechanics’ Insurance Company and for similar corporations.56  Shattuck, while Holmes’ partner, was attorney for the South Boston Railroad, the Eastern Railroad bondholders and so forth.57  We see Holmes, too, as a young lawyer, contesting claims for damages due to injuries,58 and arguing against the rights of workers.  One such case, for example, was that of Temple, Watford and fellow seamen against vessel owners for unpaid wages of which they had been defrauded.  Holmes argued that Turner, one of the ship’s owners, did not personally make the contract, or engage the seamen, and, therefore, could not be held technically responsible.  But the Massachusetts Supreme Court, on September 7, 1877, decided in favor of the seamen.59

Holmes was one of that type of lawyer that is personally honest, but hide-bound by class views and class associations — “ a Back Bay specimen ” as some persons termed him.  He, no more than the other Justices, knew or cared about the conditions under which the working class had to labor.  Like them, he was educated and developed in a fixed environment of both law and custom, as well as of self-interest — an environment hostile to the working class, and regarding it as a class of preordained drudges to be looked down upon as hopelessly inferior.  The class among which Holmes moved, and from which he had derived his clientele, was suspicious and resentful of the slightest move of the working class to better its conditions, knowing that the extent of its sway and profits depended upon the corresponding subjugation and degradation of the workers.  On the whole, this analysis could be applied to Holmes without injustice.

A professor of law at Harvard in 1882, Holmes became an Associate Justice of the Massachusetts Supreme Court in that year, and from 1882 to 1889 was its Chief Justice.  When appointed to the Supreme Court of the United States he was sixty-one years old.  Roosevelt’s selection of him was generally understood to be somewhat of a personal choice.  Holmes’ father had been an essayist of tolerable fame ;  and Roosevelt, who liked to pose as a literary luminary, was partial to writers and to the sons of writers.  But had not Holmes abundantly proved that on the general issues of property domination his class instincts were thoroughly dependable, his appointment would not have run the gauntlet of the United States Senate, the overwhelming majority of which was composed of vigilant corporation attorneys, or of the magnates themselves.60


Shiras Resigns, and Day Takes His Place.


The next appointment to the Supreme Court made by Roosevelt was that of William R. Day to succeed Justice Shiras, who resigned on February 23, 1903.

Day’s appearance was so striking in one respect that it commanded the instant scrutiny of the observer.  His body was so attenuated that he seemed almost to have none, and his leg bones were not much larger than the average man’s arm bones.  He had lived among musty law books which appeared to have transmitted their atmosphere to him, devitalizing the warm currents of heart and mind.  In fact, it might be said that legal tomes had been the first objects that his infantile eyes had perceived ;  his father, Luther Day, was a lawyer and judge, long serving as a Justice of the Ohio Supreme Court.  Law became the family heritage ;  a brother of William R. Day is now a judge of the Common Pleas Court, at Canton, Ohio, and two sons of William R. Day are lawyers, one associated with a firm of corporation lawyers in Cleveland, the other, William R. Day, II, a Federal judge.

Yet buried as Day’s mind was in the sepulchral caverns of moldy precedents of law, no man was more zealous and alert in applying those precedents to the changing interests of corporations.  He made the past serve the purposes of the present ;  in unremitting and able retainership to his clients his record as an attorney was consistent.  He wore no double coat ;  he made no pretenses of caring for the interests of the poor, the helpless and defenseless.  Candidly and openly he opposed them, which is equivalent to saying that he was a genuine corporation attorney, bent solely and inexorably upon performing the service for which he was paid.


Day as a Corporation Lawyer.


Some forty years ago he formed a law partnership with William A. Lynch, at Canton, Ohio, under the firm name of Lynch and Day.  The records abundantly tell how they prospered.  Lynch, for example, held the lucrative post of local attorney for the Pittsburg, Fort Wayne and Chicago Railway (now a part of the Pennsylvania Railroad).  He was also a director of the Connotton Valley Railroad.61  The name of the firm varied at different times ;  in 1880 it was Lynch, Day and Lynch, the other Lynch being Austin, a brother of William.  For many years the firm represented the Valley Railway Company62 (now of the Baltimore and Ohio Railroad system).  During more than twenty years William R. Day appeared with great frequency as attorney for the Wheeling and Lake Erie Railroad,63 which became one of the Gould railroads.

For a long series of years Day and his partners were attorneys for the Canton Street Railway Company, the Connotton Valley Railroad Company (now part of the Wheeling and Lake Erie Railroad) ;  the Farmers’ Bank ; the New England Trust Company ;  the City National Bank of Canton ;  the Mahoning National Bank of Youngstown ;  the Alliance Bank ;  the Cleveland and Canton Railway Company ;  the Canton Gas Light and Coal Company ;  the Dueber Watch Case Company, the American Screw Company ;  the Bolton Steel Company (now a constituent of the Steel Trust) ;  the Alliance Gas Company ;  the Wrought Iron Bridge Company (a large corporation absorbed by the American Bridge Company) ;  the Electric Light and Power Company, the Massillon Valley Coal Company (a large coal-mining corporation in Ohio) ;  the Rough Mining Mountain Company and other corporations.64  In fine, Day’s practice was a general corporation practice for railroads, trusts, banks, street railways, gas and electric light companies, coal-mining companies and many kindred corporate concerns.

Far from being a noted lawyer, Day was simply a local corporation attorney ;  he did not appear in any large corporation actions.  When such suits came up, the corporation cases were argued by lawyers of national reputation.  In his railroad practice Day usually appeared to contest suits brought for damages for injuries.


The Case of Mary Birtch.


One of these cases, giving Day not a very enviable reputation among common folk in Canton, was the action of Mary Birtch against the Wheeling and Lake Erie Railroad.  In a wreck near Navarre, Ohio, in 1891, Mary Birtch, sixty-two years old, was one of the passengers hurt ;  her spinal column was so severely injured that she could hardly move.  She brought suit for $10,000 damages.

When the case came up in 1894 in the Court of Common Pleas at Canton, Day personally appeared as the railroad’s counsel to contest her suit.  The evidence proved that the ties were so rotten that the rails parted and the cars were derailed.  But throughout the trial the proceedings were so conducted that the jury became prejudiced against her.  Judge McCarthy would not allow her lawyer or her doctors to be present at a physical examination to determine her injuries.  The judge allowed the railroad’s physician to say that she was faking, and Judge McCarthy himself denounced her in open court as an old fake.  The jury gave Mary Birtch a verdict for $65.  Her counsel made a motion for a new trial ;  this, Day vigorously opposed and the judge denied the application.

Six weeks later Mary Birtch died.  A post-mortem examination by three physicians revealed that her spinal column had been so seriously injured that it had become completely decayed.  She had suffered great pain and her death was directly caused by the injury.


A Five-Cent Judgment.


A result of the same wreck was the action of William McLain’s Administrator for damages.  A young route agent in the postal service, McLain jumped when the cars were derailed.  A snag of a bush along the track penetrated his abdomen ;  peritonitis set in and caused his death.  Day appeared in court as attorney for the Wheeling and Lake Erie Railroad, and argued that McLain was guilty of negligence in jumping.  The entry in the Appearance Docket at Canton shows that on February 10, 1893, the jury brought in a verdict for five cents damages.65  A motion on April 7, 1893, for a new trial was overruled, and each party was ordered to pay its own costs.

A similar case was that of Frederick Heiman’s Administrator vs. the Cleveland Terminal and Valley Railroad Company (at present belonging to the Baltimore and Ohio Railroad system).  Day’s firm was counsel for the railroad company.66  On March 15, 1898, a verdict for $4,200 was given for the plaintiff.  The railroad’s motion for a new trial was overruled, but the judge struck $1,700 from the judgment.  If the plaintiff had not consented to this the motion for a new trial would have been granted.  The State Circuit Court reversed the decision and remanded the case for a new trial.  The judgment in the new trial was only $1,000.


Death a Part of the Worker’s Task.


Another of many such cases in which Day, or the firm of which he was a member, appeared, was the action of David L. Morgan vs. the Krause (Coal) Mining Company.  This corporation was represented by Day, Lynch and Day (for so the firm was now constituted).  The precedent set in this case is a noted one in Ohio.

On February 17, 1891, Morgan bad been injured by an explosion of fire damp.  When his suit came up the Court excluded the evidence of Kline, the mine boss ;  if Kline had been allowed to testify, the fact, it was alleged, would have been proved that the mine owners had not supplied safety lamps.  The result of this omission of testimony, as well as the fear of other miners to testify (because they might be deprived of their jobs) was a verdict in favor of the company.  The Ohio Supreme Court affirmed the action of Common Pleas on the ground that “ where the injured party knowingly and deliberately assumes a risk that leads him into immediate danger, he ought not to have a remedy for injuries arising from perils that are obvious and certain.”67  A characteristic judicial construction ;  the laws decree that employers should provide safe tools and proper precautions, but the judges declare that death is a fixed part of a worker’s task.

These are not isolated, but typical, specimens of the uniform kind of cases that Day pleaded for several decades ;  he was a regular corporation attorney appearing constantly to contest the claims of workers or their survivors for damages for injuries causing disability or death.  He himself lived in the provincial aristocratic style of the well-paid corporation lawyer ;  and if he cherished a latent spark of sympathy for the disfigured, the maimed and crippled, the widowed and orphaned, it was smothered by the income that he received from railroad and mining companies.

Nor is his long record of tenacious pleading against impoverished, injured or slain workers introduced here aimlessly.  It was significant of the type of lawyer often chosen for judgeships, especially for seats on the Supreme Court of the United States.  Chief Justice Waite, Chief Justice Fuller, Justices Swayne, Shiras and others had ascended to their eminence by route of (among other corporation practices) seeking to prevent injured workers or the destitute widows or children of the killed from recovering damages.

One of the most important and insistent series of cases coming up before the courts was that resulting from employers’ liability laws.  The slaughter of workers in the industrial field was immense, greater in a single year than the most dreadful carnage of the most destructive battle the world has ever known.  Nevertheless, the railroad, mining and industrial corporations contested even the mildest legislation designed to compel them to install improved equipment and safety appliances, and violated such laws as did exist.

On the railroads alone, from the years 1888 to 1907, a total of 53,046 railroad employés were killed and more than 800,000 were maimed or crippled while at work.68  Such lawyers as Fuller, Day, Shiras and others had used all of their ingenuity as attorneys to argue the narrowing of the laws applied to workers and, on the other hand, the extension of the rights, privileges and immunities of corporations.  And this was the type of lawyer going on the Bench of the Supreme Court of the United States — men who had faithfully done their careers of subservient service to the railroad, mining and industrial magnates.  After becoming Justices they generally construed laws and handed down decisions precisely in line with what they, as attorneys, had received fat retainers to argue.

Day, too, was now elevated to a judgeship.  Appointed a member of the United States Circuit Court, he sat with Taft (now President of the United States) and Lurton (now a United States Supreme Court Justice).  This trio on the Sixth Circuit, handed down delectable decisions refusing time after time, to award damages to destitute workers injured through no fault of their own.69  Selected by President McKinley solely because he was McKinley’s neighbor in Canton and his close personal friend and attorney, Day was appointed Assistant Secretary of State of the United States, and subsequently Secretary of State.  It was when occupying this post that Day negotiated the generous treaty with Spain by which $20,000,000 was paid to Spain for the already conquered Philippine Islands, and it was Day who arranged the negotiations by which the United States munificiently paid $18 an acre for the Roman Catholic Friar lands in the Philippines — a great part of which lands have since been sold by the Government to the Sugar Trust for $6.50 an acre.70  This latter fact is stated merely for explanatory reasons ;  Day had no connection, directly or indirectly, with the sales to the Sugar Trust.


The Great Boon of “ Voluntary Contract.”


Day, as we have said, succeeded Justice Shiras.  To give a concrete illustration of the type and circumstances of decisions of the Supreme Court of the United States regarding injured workers, let us pick out, for example, a decision written by Shiras just before he left the Bench.

Injured by a collision, William Voight, an employé of the United States Express Company on the Baltimore and Ohio Railroad, sued for damages.  In the lower courts he was successful.  On the ground that when he obtained his job Voight had signed a contract releasing the railroad company from liability, the company appealed.  Shiras held that Voight was not compelled to enter into such a contract, but did it voluntarily, secured work by means of it, and that such a contract did not contravene public policy.  Only Harlan dissented.71

Shiras had been counsel for the Baltimore and Ohio Railroad branch at Pittsburgh, and he well knew that no man could get work unless he signed such a contract.  Here, in brief, was the Supreme Court of the United States upholding the power of a corporation to force illegal contracts from men seeking work, or else consign them and their families to hunger and destitution.  It gave the corporation the right to say to a worker :  “ Sign this contract, or starve ;”  and then after the worker had been injured, threw him out of court, denying him the paltry damages sued for, caring nothing what became of him or his family.  Day was, indeed, a worthy successor of Shiras.


Justice Moody Enters.


The next Associate Justice appointed was William H. Moody of Massachusetts ;  he took his seat on December 17, 1906, succeeding Brown, retired.  Born in 1853, Moody, too, was a Harvard graduate ;  for sixteen years before his appointment to the Supreme Court he had held a succession of public offices.  Associating with the Lodge political machine, he became district attorney for the eastern district of Massachusetts in 1890.  Five years were spent in that office, and in 1895 he was elected to Congress.  He was appointed Secretary of War on May 1, 1902, and on July 1, 1904, succeeded Knox as Attorney-General of the United States.  Like Knox (Steel Trust attorney), Moody made a frantic appearance of seeking the dissolution of the trusts, but it was merely an illusory proceeding quickly degenerating into a travesty.

Moody was a follower and close friend of Senator Henry Cabot Lodge, who has been viewed with sincere and unbroken approval by the great corporate interests in Massachusetts.  Lacking the support of these interests, no man could expect to be sent to the United States Senate, or elected or appointed to any other public office.  Even the much-bepraised Hoar, Lodge’s predecessor, had been attorney for railroads and for the most powerful industrial concerns.72  Lodge’s associate United States Senator from Massachusetts was Murray Crane, an extensive manufacturer, who as Governor of that State had recommended and ratified legislation by which the Boston and Albany Railroad was turned over to the Vanderbilts under a perpetual lease.  This railroad was built largely by the State, but private capitalists owned part of the stock.  Among the large stockholders was Murray Crane, but when elected Governor he had virtuously transferred his holdings to his brother and partner, Zenas Crane.73  The methods by which the State’s interests were surrendered in this transaction and also in the selling of the State’s stock in the Fitchburg Railway to the Boston and Maine Railroad, caused a blare of public scandal.74

At no time could Senator Lodge be accused of violating his signal fidelity to the interests of the Massachusetts manufacturers and railroad corporations.  Unvaryingly he advocated measures for their benefit, nor did he suffer himself to prove false to his class interests by supporting working-class legislation.  In the Massachusetts factories an immense number of child laborers have been employed under peculiarly degenerating conditions, but neither Lodge nor Holmes nor Moody ever even whispered a protest.  Foremost of all corporations controlling the politics of Massachusetts are the Boston and Maine Railroad and the New York, New Haven and Hartford Railroad ;  they have invested themselves with the practical veto power over nominations or appointments to public office.  It was Lodge, the personal friend of Roosevelt, and his mouthpiece in the Senate, who induced Roosevelt to appoint Moody Attorney-General, and it was Lodge who, when Moody retired from the Supreme Court of the United States, in 1910, did Moody the friendly service of rolling a bill through Congress granting Moody a pension of $12,500 a year.  When, later, in the same year, Lodge’s campaign for reëlection met with vigorous opposition, Moody displayed his gratitude by writing a letter to the members of the Massachusetts Legislature urging them to reëlect Lodge.  “... We have, in the person of Senator Lodge,” Moody wrote, “ one of the best equipped men in public life ;  in fact, I think he is the most competent legislator in the country. ...”75

We shall now proceed to consider in aggregate some of the more important of the mass of decisions of the Supreme Court of the United States during this period.  It will be understood that some of these decisions were handed down before the different times when Holmes and Moody went on the Bench, but their participation is included in the various later decisions.




1 In the preceding chapter, as set forth in the Case of Speck et al. vs. Pullman, by deceit, fraudulent sales and other methods therein detailed.

2 See, “ Report on the Chicago Strike of June and July, 1894,” by the U.S. Special Commission, 1895.  It may be added that the Pullman Company’s present capital is $120,000,000, and that in its recent report to the Interstate Commerce Commission (1911) it admitted that it never had any new capital paid in except from “earnings.”  At the same time, it has been paying an average annual dividend of eight per cent.

3 See testimony affirming the general existence of this practice, “ Report of the Industrial Commission, 1900,” Vol. IV (Transportation) : pp. 52, 123. 516. 528, etc.

4 The late Carroll D. Wright, so favorably and widely known for his work as United States Commissioner of Labor and in other fields, related in his “ Battles of Labor ” (p. 122) how at Pittsburg a number of worthless freight cars were fired by railroad emissaries, and the strikers were then charged with riot.  Wright wrote that from all he was able to gather, the reports that the railroads manufactured riots were true.

5 Parsons’ “ The Railways, The Trusts and The People,” 196.  Also see, Report of Chicago Chief of Police for 1894.

6 And, according to a list of the ten largest security holders of the leading railroads in the United States given out by the Interstate Commerce Commission, January 15, 1909, Richard Olney, G.F. Richardson and B.P. Cheney of Boston were trustees for 204,700 shares of preferred stock of the St. Louis and San Francisco Railroad.

7 In re Debs, 158 U.S. Reports, 564. While Attorney-General Olney was thus pressing the case against Debs and having the anti-trust act applied to labor unions, he was allowing an important case against the cash-register combination to go by default.  The important allegations of the Government against this trust were clearly sustained.  Olney, into whose control the prosecution of the case had come from his predecessor, allowed the indictment to lapse, giving the remarkable and specious reason that the complaining witnesses had entered into the combination of the defendants ! — See, U.S. vs. Patterson et al., 55 Federal Reporter ; 605 and 59 Ibid., 208.

8 Noted on the record in Case of Chicago, Burlington and Quincy Railroad vs. Chicago, 166 U.S. Reports, 227 (October, 1896) : “ The Chief Justice took no part in the consideration or determination of these cases ” (p. 263).

9 159 Mass. Reports, 427.

10 See, Case of Brooks vs. Codman, and Foote vs. Women’s Board of Missions, 162 U.S. Reports, 439.  “ Mr. Justice Gray did not sit in these cases or take any part in their decision.”— p. 466.

11 Hornblower had represented the Pacific Railroad of Missouri (IV Supreme Court Reporter, 584), the New York Life Ins. Co., and other corporations.  Wheeler H. Peckham was also a well-known corporation attorney ;  he was a director of the Buffalo, Rochester and Pittsburg Railway, and was interested in other corporations.  See later.

12 For Peckham’s pleas and arguments for McCunn at this trial, see, “ Proceedings in The Senate on The Investigation of The Charges Preferred Against John H. McCunn,” etc., Albany, 1874 : pp. 80, 100, 102, 110, 134, 142, etc.

13 It is curious to note that one of the three members of the acting committee of the Bar Association was John E. Parsons, the very same who has long been chief counsel for, and a director of, the Sugar Trust, the enormous thefts of which in defrauding the Government of import duties, were exposed in 1909-1910.

14 See, “ Proceedings In The Senate On The Investigation Of The Charges Preferred Against John H. McCunn,” etc., pp. 604-605.

15 See, “ Testimony and the Arguments of Counsel Before The Senate on Charges Against John F. Smyth, Superintendent of the Insurance Department, Albany, 1878”: pp. 5, 7, 40, etc.  Peckham’s final argument for Smyth is to be found on pp. 365-384, and the vote on the question of Smyth’s removal on page 518.

16 See, “ The Insurance Year Book ” for 1905 : p. 175.  Other trustees were Stuyvesant Fish, Augustus Julliard, George G. Haven, Charles Lanier, Elbridge T. Gerry, Elihu Root, Adrian Iselin, Jr., etc., etc.

17 “ Directory of Directors ” for 1899 : pp. 22-23.

18 Moody’s “ The Truth About The Trusts,”  “ Gould-Rockefeller Group ”: pp. 435-436.

19 Ibid., 432.

20 Ibid., 434.

21 “ Directory of Directors In The City of N.Y.,” for 1904 : 795-796.

22 Ibid., 307.

23 Ibid., 495-496.

24 Ibid., 792-793.

25 Ibid.,, 472-473.

26 Ibid., 967-968.

27 Ibid., 885-886.

28 Ibid., 536-537.

29 Ibid., 409-410.

30 “ Report of the [New York] Legislative Committee, 1906, Vol. X : 23.

31 Ibid.  See full details, pp. 17-22.

32 Ibid., 16.  The “legal expenses ” of the Mutual Life Insurance Co. for a series of years were : 1898, $266,403.95 ;  1899, $286,048.74 ;  1900, $304,756.85 ;  1901, $243,516.78 ;  1902, $275,989.64 ;  1903, $347,254.95 ;  1904, $364,254.95.

33 “ Report of the [New York] Legislative Committee,” etc., Vol. X p. 25.

34 Ibid., 26.

35 “ Report of [N.Y.] Legislative Committee,” Vol. X : 9-10.

36 See later.

37 Case of U.S. vs. E.C. Knight Company, 156 U.S. Reports, I.  Practically, this decision legalized the operations of the trust and absolved its powerful heads from criminal prosecution.  The all-wise Supreme Court of the United States failed to discover that a trust was a trust.  But the Federal Grand Jury, in July, 1909, seems to have keener eyesight.  It indicted John E. Parsons, originator of the trust idea and formerly general counsel, and leading director of the American Sugar Refining Company.  Thomas, vice-president, Donner, Frazier and other officials of the trust were also indicted.  For two years Parsons and associates contested the indictments, but the Federal Circuit Court in New York recently decided that they must stand criminal trial for alleged conspiracy to restrain commerce.

38 Cincinnati, New Orleans and Texas Pacific Railway vs. I.C.C., and I.C.C. vs Cin., N.O. and Texas Pacific Railway, 162 U.S. Reports, 184.  Justice Shiras wrote the Court’s unanimous decision.

39 Texas and Pacific Railway vs. I.C.C., 162 U.S. Reports, 197.  Shiras also wrote this decision ;  Harlan and Brown dissented.

40 Case of Robertson vs. Baldwin, 165 U.S. Reports, 275. Brown delivered the Court’s decision ;  Harlan dissented.

41 I.C.C. vs. Cincinnati, New Orleans and Texas Pacific Railway Co., 167 U.S. Reports, 479.  Brewer delivered this decision. In the other case, I.C.C. vs. Alabama Midland Railway Co. (168 U.S. Reports, 144), Shiras wrote the decision.  Harlan dissented in both cases.

42 Smyth vs. Ames, 169 U.S. Reports, 466.  Harlan wrote the Court’s unanimous decision.  “ The Chief Justice took no part in the consideration or decision of these cases ” (p. 550).

43 Hopkins vs. U.S., 171 U.S. Reports, 578, and Anderson vs. U.S., Ibid., 604.  Peckham delivered the court’s opinion ; Harlan dissented.

44 U.S. vs. Joint Traffic Association, 171 U.S. Reports, 505.  Peckham wrote this decision also.

45 Addyston Pipe and Steel Company vs. U.S., 175 U.S. Reports, 211.  This decision was also written by Peckham.

46 Northern Pacific Railroad vs. Smith, 171 U.S. Reports, 260.  Shiras wrote the decision ;  Harlan dissented.  Brewer, although concurring in the decision, excepted to some of its conclusions.

47 Congressional Record, Forty-ninth Congress, Second Session, Vol. 18, Part I : pp. 857 and 881.  It was when this bill was before the House that Representative Henderson, later Speaker, said :  “ This city is swarming with keen, zealous, able agents of the railroad power, trying to defeat the passage of this bill.  Every vote cast at their dictation, and every vote against this bill, is a vote for railroad supremacy against the people.”

48 It is hardly necessary to say that we have given the particulars of these briberies in preceding chapters.

49 Congressional Record, Fifty-first Congress, Second Session, Vol. 22, Part 4, p. 3397

50 161 U.S. Reports, 413.  Harlan wrote the Court’s unanimous opinion holding that the various acts of Congress contained no clause imposing personal responsibility upon the stockholders.  Field was, of course, on the Supreme Court Bench in 1896, the year of this decision.

51 Southern Pac. R.R. vs. R’d Commissioners, 79 Federal Reports, 236.

52 These petitions were published in all of the leading newspapers of the time.

53 San Francisco Examiner, December 4, 1897. W.F. Herrin was both lawyer and political manipulator, first for Stanford and Huntington, and then for their successor, Harriman.

54 “New York World, December 17, 1897.

55 New York World, December 18, 1897.

56 112 Mass. Reports, 150 ; 114 Ibid., 66 ; 120 Ibid., 497, etc.

57 121 Ibid., 487, etc.

58 Joy vs. Winnisimmet Company. 114 Mass. Reports, 66.

59 Temple vs. Turner, 123 Mass. Reports, 125.

60 Philander C. Knox, who had been attorney for Carnegie and later for the Steel Trust, was Attorney-General of the United States at this time, and even Vice-President Fairbanks, Roosevelt’s official associate (in 1905-1909), had been, shortly before his previous election as United States Senator, president of the Terre Haute and Peoria Railway Company.—(“ Poor’s Railroad Manual ” for 1890, p. 1365.)

61 “ Poor’s Railroad Manual ” for 1880 : p. 612.

62 See, Appearance Docket, Court of Common Pleas, Stark County, O., Vol. 54, p. 1673, Vol. 56, p. 3037, etc.

63 Ibid., Vols. 54, 55, 63, 68, etc., etc., in which his appearances as counsel are entered with great frequency.

64 The above facts are to be found in Ibid., Vols. 54 to 58, 60, 62-64, 68-69, 70, etc.

65 See, Appearance Docket, Court of Common Pleas, Stark County, for that year, p. 8024.

66 Appearance Docket, Stark County, etc., Vol 71 : p, 11,913.

67 Ohio State Reports, Vol. 53 : 26-43.

68 These figures are compiled from the annual reports of the Interstate Commerce Commission.  See particularly the Nineteenth Annual Report of that Commission (1907) giving a tabulation on p. 109.  But even these figures give no adequate picture of the full and terrible truth.  At a recent hearing in Washington, this fact was brought out :  That only such as died within twenty-four hours after accidents, were reported to the Interstate Commerce Commission under the list of deaths.  Otherwise, they were included in the roll of “accidents.”

69 See later.  Both Taft and Lurton had been railroad attorneys.

70 The San Jose Estate (Friar lands) of 55,000 acres of Mindoro Island, was sold to E.L. Poole, representing H.O. Havemeyer and associates ;  the Isabella Tract of 49,000 acres was taken over by E.B. Bruce, representing the Havemeyer syndicate ;  and other Friar lands were likewise appropriated.— See, “ Friar Lands Inquiry,” House Committee on Insular Affairs, Feb., 1911 : 40-44.

71 Case of B. and O.R.R. vs. Voight, 176 U.S. Reports, 498.

72 Hoar represented the Worcester and Nashua Railroad Company, the Amoskeag Manufacturing Company, etc.—131 Mass. Reports, 495 : V Supreme Court Reporter, 441, etc.

73 In the list compiled by the Interstate Commerce Commission of the ten largest stockholders of railroads, in 1908-1909, Lenas Crane appeared as the owner of 150,000 shares of common, and 10,000 shares of preferred, stock of the Chicago, St. Paul, Minneapolis and Omaha Railroad.

74 Lucius Tuttle, President of the Boston and Maine Railroad, dominated New England politics.  That this railroad corrupted legislatures is a matter of record.  We will give an excerpt from a speech made by former United States Senator Chandler, at Laconia, N.H., on August 17, 1910 ;  what he said of New Hampshire was equally true of Massachusetts, so far as the railroad was concerned :

      “ Railroad passes and railroad money dominate the State, and the governor, councillors, senators and representatives are the mere agents in their offices of the two great railroads.

      “ It may be said truthfully that nearly all the lawyers in the State are influenced by one or the other railroad companies, either by annual passes alone, or by such passes and money.

      “ New Hampshire has been one of the greatest victims of corporation rule, mainly governed in its industrial, political and government career by the Boston and Maine Railroad.  There has been added to this influence the Amoskeag Manufacturing Company of Manchester, which, when it has not been adjusting its disputes with the railroads, has been joining with the railroads in taking possession of the State government.”

75 Ostensibly a letter from a “ constituent to his representatives solely,” this letter was immediately published in every Boston newspaper and in the press generally throughout the State.