HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

CHAPTER XVI

THE SUPREME COURT UNDER CHIEF JUSTICE FULLER
(CONTINUED)



Oblivious to criticisms and the misunderstandings, the Supreme Court proved that in one essential respect it was not the reactionary institution that in certain quarters it was charged with being.  Its critics were accustomed to declaim against it as a small oligarchy of doddering, obdurate old men, blind or at least insensible to all of the signs and demands of progress, and determined to impede, thwart or annul every manifestation of progress.  This criticism, at once amusing and fallacious, is still current.


The Court’s Ultra-Progressiveness.


In reality the Supreme Court in the specific point in question, was the most alert, adaptable, ultra-progressive institution in the United States.  Frosted with heavy years most of its members truly were ;  but in depth of mind, in clarity of vision and grasp of affairs no body of men were less archaic or (in the particular referred to) more keenly responsive to the demands of altering conditions as required by the dominant division of the ruling class.  This was their one remarkable ability — an ability to be estimated and appreciated at its high historic worth.

Bred under laws applying to an obsolete, bygone economic period, the Supreme Court majority nevertheless refused to allow that stultifying code of laws to stand in the way of industrial evolution.  They declined to interfere with the orderly transition of society from an older, outworn, crumbling stage to a newer, more modern era.  At a time when legislatures and Congress were fatuously bent upon seeking to revivify historic anachronisms, the Supreme Court of the United States was the one body that thrust those reactionary laws aside and facilitated industrial progress.

The age of unrestricted competition had passed, and the age of huge combinations of capitalists in concentrated corporations had supplanted it.  Anarchy in production had been to a large extent superseded by systematic trust control.  But many statutes, relics of the era when the still powerful middle class was vainly and confusedly trying to stop the growth of the trusts, remained as unrepealed legislation.

Agitation to enforce these anti-trust laws was continually carried on, although in a declining ratio as the middle-class organization grew less influential.  Two concrete facts, however, obstinately protruded, conflicting side by side :  One fact was that the trusts were growing increasingly more powerful.  That the laws, markedly so the Federal anti-trust act, forbade the existence of those trusts, was the other fact.

But one of these was only the semblance of a fact, or rather the shadow of what had been a fact.  Unrestrained competition in industry, with its warfares and its many deficiencies, was largely become a memory.  It had ceased to be a fact, yet in the lifeless, bookish thing called statute law it was believed that it could be resurrected.  The skeleton alone remained ;  breath and spirit had departed.  Combination, however, was a living fact, and a mighty one ;  if anyone doubted its obvious economic superiority over its predecessor, competition, he at least could not but be impressed by its immense energy, system, power and resources.


The Existing Class War.


Three great groups now developed from the conflict within society.  One of these was that of the trust magnates, with an interassociation in ownership of transportation systems, industries, mines and other resources.  The wealth of this group was, computed by usual reckonings, almost illimitable ;  its power stupendous.  But its numerical strength was small, and diminishing as its individual and collective wealth increased, for the big trust magnate warred upon the small not less than the trust upon the petty manufacturer.

The second group was that of the middle class.  Many of the former strongest factors in this class — the small manufacturers, jobbers, etc.,— had either become absorbed in the trusts or had been driven from business.  If the inroads of the trusts had ended here, the middle-class agitation would largely have died away from sheer inanition.  Connected, however, with the middle class was a huge number of retail dealers.  As the profits of the trusts piled up, the magnates necessarily had to look about for new channels of investment.  The only remaining field, therefore, was the retail trade.  In this, some of the trusts, notably the Tobacco Trust, began to establish their own stores, selling direct to the consumer.  Naturally, this new move filled the shopkeepers everywhere with the most violent alarm, and gave the anti-trust agitation a new impetus.

Aligned with the middle class were the agricultural element and a large section of uninformed workers.  Altogether, the forces massed in the array opposed to the trusts were numerically great, and formed an overpowering political majority.  This explains why legislators, themselves often tools of trusts, were unwilling to risk their own political extinction by repealing laws aimed at the trusts.

The third group was that of organized labor.  On the political field its views and sentiments and actions at the time were similar to those of the middle class, although the two classes had nothing in common.  Only that fragment of the workers comprised in the Socialist ranks was then clear sighted enough to understand that the trusts were a natural outgrowth of evolutionary conditions.

But between trusts and labor unions a deadly conflict was in progress.  With their enormous issues of watered stock, the trusts sought to augment their profits in every way in order to give that stock value.  Added to this fact was the ever-present principle of the employer aiming to buy his labor as cheap as possible.  The labor unions were an obstacle to this programme of merciless exploitation.  On the other hand, the reverse principle operated, the laborer trying to get the utmost for his labor power.  While maintaining their right to carry on industry and transportation in modern, compact, concentrated corporations, the trusts denied the workers’ right of organizing along modern lines.  The trusts aimed at nothing less than the destruction of the labor unions.


An Absolute Institution.


With this preliminary, we can now begin to get a clear conception of the fundamental meaning of the edicts of the Supreme Court of the United States.  If the legislators were afraid to recognize inevitable changes and enact laws in conformity with them, the Supreme Court was not.  It had no purblind constituents to appease, nor did it have to make explanations to anyone. It was, as its title implied, supreme, and could decree law as it pleased.  At the proper time it could even, as some of its apparent anti-trust decisions indicated, serve the ulterior purposes of the magnates in subtler forms.  It could put trusts to the trouble of nominally dissolving so that a cry of “ disturbed business conditions ” could be set up, and thus give legislators a pretext to pass laws legalizing trusts.

As for the labor unions the Supreme Court did not have to depend upon their favor or votes, the Supreme Court could strike at them without fear of retaliation ;  in truth, that exalted tribunal held workers in supreme contempt.  For good reason.  The trust magnates saw to it that every important post was filled by representatives of their own class, but the bulk of the voters were deluded into voting their avowed enemies into office year after year.  It was their votes that put capitalist Presidents in the White House, and it was those Presidents who appointed Supreme Court Justices.  Not a member of the Supreme Court was appointed unless his views and associations were known and canvassed in advance, and his record closely scanned by the great capitalist interests.

The Sugar Trust had been, as we have seen, given a bill of immunity, and at about the same time the Supreme Court had sent Debs to jail.  A series of decisions followed which further allowed the exemption of the trusts.  True, a few decisions were handed over seemingly antagonistic to certain trusts and combinations.  But in practical application they had no such effect.  At the same time, other decisions of the Supreme Court struck hard at labor-union leaders and labor-union measures and tactics, while permitting railroad corporations to pursue toward workers what had hitherto been held to be unfair and illegal methods.  We shall give the substance of the more important of these decisions.


Anti-Trust Measures Extinguished.


Anti-trust acts in thirteen States were wiped off the statute books by the decision of the Supreme Court in the case of Connolly vs. the Union Sewer Pipe Company, on March 10, 1902.  The action involved the constitutionality of an Illinois statute ;  Harlan delivered the court’s opinion pronouncing the law void ;  McKenna dissented.1

Shortly after this the Supreme Court expounded another decision in which it revealed that it was fully alive to the requirements of industrial conditions.  The case was that of the Carnegie Steel Company vs. the Cambria Iron Company.  The suit arose over a contention as to whether Carnegie was entitled to a valuable patent (the Jones invention) for manufacturing steel.  The Supreme Court decided for Carnegie, but Justices White, Fuller, Harlan and Brewer concurred in a dissenting opinion in which they concluded with the significant statement that by thus being allowed to exact tribute from the steel and iron making industry, Carnegie was in a position to hinder the operations of other steel makers from keeping “ pace with the natural evolution of modern industrial development.”2

The Carnegie Company was a main part of the Steel Trust, and one of its attorneys in the foregoing case was Philander C. Knox, of Pittsburg.  Knox had been the counsel for the Carnegie Company.  Back in 1894 he had pleaded for that company when it was proved that the company, in its contracts to supply armor plate for warships had “ perpetrated manifold frauds, the natural tendency of which was to palm of upon the Government an inferior armor whose inferiority might perchance appear only in the shock of battle and with incalculable damage to the country.”3  According to the reluctant testimony of A.J. Cassatt, president of the Pennsylvania Railroad, the Carnegie Company had been continuously receiving illegal rebates on a vast scale from the railroads.4

Knox had also been attorney for the Pittsburg, Bessemer and Lake Erie Railroad, the Pittsburg, Fort Wayne and Chicago Railroad, the Pittsburg and Birmingham Traction Company, and for other powerful corporate clients.  From the Carnegie Company alone Knox was reputed to have received a retainer of $50,000 a year.  When a Congressional Committee exposed the armor-plate frauds, Knox, as we have said, proved his skill by diverting all attempts at prosecution.

The nucleus of the Steel Trust, formed in 1901, was the Carnegie Company, and the two successive Presidents of the Steel Trust were Schwab and Corey, who, with Cline, had been superintendents of the Carnegie Plant in 1894.  Of Cline, Corey and Schwab the Congressional investigating committee had reported, “. . . The unblushing character of the frauds to which these men have been parties and the disregard for truth and honesty which they have shown in testifying before your committee, render them unworthy of credence.”5


The Eminent Mr. Knox.


Andrew Carnegie, then the principal stockholder of the Carnegie Steel Company, admitted in his testimony before the (Stanley) House Investigating Committee, on January 11, 1912, that, in 1901, he had written a letter to President McKinley recommending Knox’s appointment as Attorney-General of the United States.  Carnegie further testified that Knox had been one of the attorneys of the Carnegie Steel Company from 1890 (the date of the passage of the Sherman anti-trust law) to the year 1901, and that Judge Reed, Knox’s law partner, had become a member of the Directorate of the Steel Trust, formed in 1901.

These were some of the antecedents of Knox, who, in 1901, became Attorney-General of the United States.  On the evening of March 22, 1901, J. Pierpont Morgan, the organizer and head of the Steel Trust, called upon President McKinley at the White House.  The next morning McKinley announced that the Attorney-General would be Knox.  Petitioning the Senate judiciary committee not to confirm the appointment, the Anti-Trust League pertinently inquired :

“ Is it proper for a lawyer to appear against his former clients ?  Can a lawyer willing to appear against his former clients be trusted to prosecute them if guilty ?  The charges we have filed refer not only to his dereliction of duty in the cases we have filed with him, but also bear upon his admitted intimate relations and his collusion with the criminal practices of the armor-plate trust which, we are informed, robbed the Government of millions of dollars during the time Mr. Knox was their associate and adviser.”

Having thus shed illumination on Knox’s career, and the great corporate interests he had represented, we shall be in a better position to understand why it was that he, as Attorney-General, brought suit to have the Northern Securities Company declared illegal.


The Northern Securities Case.


In 1874, the Minnesota Legislature had passed an act prohibiting the consolidation of parallel or competing railroads.  In 1901, James J. Hill, the controlling magnate of the Great Northern Railroad and part owner of the Northern Pacific Railroad, set out to get control of the Chicago, Burlington and Quincy Railroad.  In retaliation, competing magnates began to buy Northern Pacific Railroad stock which would give them a voice in one of Hill’s own railroads.

A great warfare in the stock market resulted.  The outcome of this conflict among the magnates was a merging of interests.  Morgan’s idea of a holding company with $400,000,000 capital to combine the interests of both the Great Northern and the Northern Pacific railroads was carried out.  The new corporation was called the Northern Securities Company.

It is not possible to ascertain the secret antagonisms or other underlying purposes then at work as the reasons for certain moves.  Between Morgan’s Steel Trust and Hill’s interests there was a direct connection of large magnitude.  Hill owned iron ore deposits of vast value near Lake Superior ;  testifying subsequently before the (Stanley) House Investigating Committee, on February 12, 1912, Hill said that he had bought these properties for $4,050,000.  He had leased 69,000 acres of the iron ore deposits to the Steel Trust which thus far — by the, year 1912 — had worked only 39,000 acres.  In the remaining 30,000 acres which will revert to Hill when the Steel Trust surrenders its lease (in 1913), there were, Hill testified, 500,000,000 tons of ore left, which he valued at $750,000,000.  We state these facts merely as facts ;  what relevancy they had to the Northern Securities action we do not know.

President Roosevelt ordered Knox to proceed against the Northern Securities Company.  Knox did so, but it was made a civil proceeding.  The question frequently asked in observant circles was this :  Did certain magnates have a secret motive for breaking up the Northern Securities Company ?  On March 14, 1904, the Supreme Court of the United States declared the corporation an illegal one in restraint of commerce and ordered its dissolution.6

Illegal it was thus pronounced ;  it followed, therefore, that under the law those guilty could have been criminally prosecuted and sent to prison.  Debs had been thrown in prison on an extraneous, manufactured charge.  But a labor leader was on a vastly different plane in the application of law from a magnate, or a galaxy of magnates.  Not the slightest attempt was made to prefer criminal action against the organizers of the Northern Securities Company.  Against this fact Justice Holmes protested in his dissenting opinion when he said :  “ It is vain to insist that this is not a criminal proceeding.  The words cannot be read one way in a suit which is to end in fine and imprisonment, and another in one which seeks an injunction.  I am no friend of artificial interpretations. . . . So I say we must read the words before us as if the question were whether two small exporting grocers should go to jail.”


Prisons for the Poor Only.


Here, indeed, was a vital and striking feature of the Supreme Court’s decisions, even when those decisions were nominally adverse to the trusts.  The prisons throughout the country were filled with convicts whose only real crime was that they were poor.  Poverty, unlike wealth, commanded no respect from the courts.7  For the slightest violation of law, the helpless and uninfluential were consigned to prison, more often than not for long terms.  But not a single railroad director, nor a solitary trust magnate has ever been condemned to prison for violating the anti-trust laws.

Given the alternative of inflicting fine and imprisonment or both, the courts have done nothing more than sentence the trust offender to a fine.  This has been a recognized travesty ;  to a corporation extorting hundreds of millions of dollars in profits, a fine of a few thousands is ludicrous.  Moreover, the amounts of the fines can always be abundantly recouped from the reduced wages of the workers or from consumers in added cost of necessaries.  Even in criminal matters, apart from conspiracies to restrain commerce, this is what happened, according to Attorney-General Moody :

“ But where the accusation is a grave one, and the accused ingenuity of his counsel opens many avenues of appeal which ultimately reach the Supreme Court, raising there a constant succession of trivial questions with consequent delays which may retard or even defeat the purposes of justice.”8


The Beef Trust Ignores the Supreme Court.


In the Supreme Court’s pretended application of anti-trust laws the soberest judgment can direct nothing else than a prolonged farce, perhaps relieved by the stern tragedy of fining multimillionaires a few thousand dollars.  In the Beef Trust case, the Supreme Court, on January 30, 1905, affirmed an injunction restraining Swift and other packers from carrying on a conspiracy of combination.9  No doubt the packers have treasured the writ as a curious yet harmless souvenir ;  the injunction has become faded, but the Beef Trust has been joyously pursuing the same old extortionate line of business, as is proved by more actions recently brought against it by the Government.10


Immunity for Trust Magnates.


Next came that illuminating series of decisions in the General Paper Company and Tobacco Trust cases, in March, 1906.  The Supreme Court held that immunity was extended to trust magnates who testified, but declared that the corporation could be punished.

Quite true, this decision was based upon an act passed by Congress in 1903, the object of which was clearly to give immunity to trust owners.11  With alacrity the Supreme Court accepted this law as constitutional ;  it saw nothing null and void in the granting of exemptions to trust heads for acts for which they personally were responsible and from which they were personally benefiting to the extent of billions of dollars.  A corporation cannot be imprisoned ;  there was something screamingly funny in the solemn mummery of inflicting a nominal fine upon a corporation capitalized at hundreds of millions of dollars.


Anti-Railroad Acts Effaced.


The power of the States to pass acts fixing railroad rates was swept aside by a Supreme Court decision, of March 22, 1908, which declared unconstitutional railroad rate laws passed by the States of Minnesota and North Carolina.  Justice Peckham, erstwhile trustee of the Mutual Life Insurance Company, associate of numerous magnates, wrote this decision.12  Peckham also it was who a little previously wrote a decision declaring unconstitutional a tax levy of the City of Chicago on various utility corporations,13 and it was Peckham, too, who wrote a decision relieving the Smelter Trust of a tax imposed by the State of Colorado on its capital stock ;  such a tax, said the Supreme Court, was unconstitutional.14

Another characteristic decision of the Supreme Court was that on December 15, 1909, relieving E.H. Harriman from testifying in an investigation carried on by the Interstate Commerce Commission.15  This was the period when Harriman, by the most extensive system of fraudulent railroad manipulation and bribery, was acquiring the immense fortune that he left.  The Interstate Commerce Commission was thus balked in its effort to learn whether Harriman and his associates had profited by sales of $120,000,000 of stocks to the Union Pacific Railroad of which they were directors.

But the Commission discovered enough to report in detail upon the extent of the frauds and how those frauds were accomplished.  It reported that in the manipulation of the Chicago and Alton Railroad alone, nearly $60,000,000 had been stolen by Harriman and his associates.  To themselves, Harriman and partners sold $32,000,000 of bonds (representing essentially no improvements) at 65.  Then Harriman induced the New York Legislature to pass an act, which Governor Theodore Roosevelt signed, authorizing savings banks to invest in those bonds.  The price of the bonds was then put up from 82½ to 94.  This is but one of the various methods described by the Interstate Commerce Commission.16

By its decision the Supreme Court virtually protected Harriman at the identical time he had consummated his gigantic frauds in the manipulation of the Chicago and Alton, the Illinois Central, the Union Pacific and the Southern and the Central Pacific and allied railroads.

The Supreme Court had declared the Northern Securities Company illegal.  Why did it not declare the Harriman combination owning parallel lines likewise illegal ?  The Interstate Commerce Commission reported that the Union Pacific and parallel roads were held by the Harriman combination and that those allied railroads had in force a specific division of freight traffic, so that each should get a certain share.17  This meant nothing more or less than an illegal combination.


An “Illusory” Decision.


Still another interesting decision of the Supreme Court was that in the “ Commodities Clause Cases.”  The Hepburn Act of 1906 made it unlawful for any railroad company to transport products of any mines in which it might have an interest, direct or indirect.  This law was aimed at the Coal Trust ;  it was notorious that the coal-carrying railroads controlled the coal deposits.  The Supreme Court did not pronounce this law unconstitutional, but it decided on May 3, 1909, in favor of the railroads on this ground :  That the prohibition did not apply to the transportation of commodities by another corporation the only interest of which lay in its ownership of capital stock of coal-mining corporations “ at the time of such transportation.”18

The exalted tribunal chose to make itself the subject of general criticism by ignoring the obvious fact that the way corporations control subsidiary corporations is by owning a majority of their capital stock.

Attorney-General Wickersham denounced the decision.  “ If,” he wrote, “ the prohibition of the statute can be successfully evaded by the simple device of transfer of ownership of property to a corporation, all of whose stock shall be owned or controlled by the carrier, Congress should amend the statute so as to make it an effectual, and not merely an illusory, prohibition, or else repeal it.”19

These are a few examples of decisions selected from a mass.  On the other hand, the Supreme Court of the United States demonstrated a very different attitude toward cases affecting the rights or welfare of the working class.


Shorter Hours Denied Bakeshop Workers.


After protracted agitation, the labor unions finally succeeded in getting the New York Legislature to pass an act making the lot of bakeshop workers more tolerable by prescribing a ten-hour law.  The master bakers contested this law up to the Supreme Court of the United States.  That Court, on April 17, 1905, declared it unconstitutional.

On what ground ?  The Supreme Court held it unconstitutional on the ground that it “ curtailed liberty of contract.”  The austere tribunal was extremely solicitous about the right of the worker to contract to work as long as he “ pleased ” in filthy, torrid cellars, for a miserable wage.

Who, it may be inquired, wrote this memorable decision ?  Justice Peckham.  To Peckham, Chief Justice Fuller and the three other concurring Justices it was clear that “ the freedom of master and employé to contract with each other in relation to their employment and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution.”20  Now, by gracious leave of the Supreme Court of the United States, the boss bakers could make their drudges sweat in underground holes eighteen hours of the twenty-four, if the aforesaid drudges, driven to it by hunger, would so contract.  “ Liberty of contract ” is a precious phrase.  The Supreme Court had thrown its protection around Harriman when, after accumulating a vast fortune by fraud, he was seeking to protect his criminal transactions from too sharp an official inquiry.  But it refused to extend the slightest protection to overworked wage earners in bakeshops.  Back these were driven by the Supreme Court’s edict to their slavery, without any prospect of bettering their condition.21


The Fourteenth Amendment.


The most noteworthy feature, however, in this decision applying to bakeshop workers was that the law was declared unconstitutional under the Fourteenth Amendment.

Now this amendment had been one of the amendments adopted to secure the full freedom of Negroes, and to safeguard them from the oppressions of their former owners.  Yet for more than twenty years the Supreme Court of the United States, in deference to the demands of the ruling class, had consistently emasculated it.  The Supreme Court had refused to define what the rights of Negroes were ;22  it had held that the amendment had no reference to the conduct of individual to individual ;23  it had declined to give the Negroes the protection of the National Government when it decided that “ sovereignty for the protection of rights of life and personal liberty within the States rests alone with the States.”24  This meant that the former slave States were empowered to abridge the liberty of the Negro as they pleased.

Other decisions, each curtailing the rights of Negroes, followed.  On the ground that it was not warranted by the amendment, an Act of Congress giving Negroes the right co-equally with whites of enjoying inns, public conveyances, theaters and other public resorts, was declared unconstitutional.25  The right of suffrage was neither granted nor protected by the Amendment.26  A State could curtail the right of trial by jury without violating the amendment.27  It was further held that a State enactment requiring whites and Negroes to ride in separate railroad cars did not violate the amendment.28

These are a few of the many decisions of the Supreme Court of the United States, the cumulative effect of which was to allow States to nullify guarantees of freedom for the Negro.  That many States did this is common knowledge.  Finally, the Supreme Court sanctioned the most revolting kind of Negro peonage in the case of Clyatt who had been found guilty in Florida of forcibly keeping Negroes in virtual slavery.  Passing on a writ of certiorari, the Supreme Court of the United States ordered the case back for a new trial on the pretext that the trial judge erred in permitting the case to go to the jury.29


First the Negro, Then the White Worker.


With complete indifference, or with outright approval, according to locality, the white workers had thus seen the Negro stripped of his Constitutional rights and reduced to a position of inferiority in law as well as custom.  The Supreme Court of the United States now began to use that same Fourteenth Amendment, designed to protect the Negro, against the whole of the working class, white and black.  When this fact became evident, the amazement of the white workers was great.  Now they — or at least some of them — perceived that the rights of no one portion of the workers could be curtailed or obliterated without the construction being applied to all workers of all races.

Using the Fourteenth Amendment to load the helpless Negro race with the obloquy of prejudicial law and custom, and to snatch away from the white worker what trivial rights he still had, the Supreme Court availed itself of that same amendment to put corporations in a more impregnable position in law than they had ever been before.  This new development turned up in the case of the Consolidated Gas Company vs. the City of New York.  The decision in that case revealed — what had so often previously been demonstrated — that while in the very act of apparently deciding against a corporation, the Supreme Court in reality set another precedent vastly extending intrenched corporate power and legalizing corporate extortions.


Property Under the Fourteenth Amendment.


The Legislature of New York, in 1906, had passed an act compelling the Consolidated Gas Company of New York City to reduce its rates to eighty cents per thousand cubic feet.  Asserting that this was a confiscatory measure, the company contested its constitutionality.  But why was it alleged to be confiscatory ?  Because, so the company contended, the reduced rate would not allow a “fair return” upon the investment.

Let us see what was included in the “ investment.”  In its total capital the company budgeted a certain $12,000,000.  Did this amount represent a single dollar that had ever been invested ?  No.  It represented wholly the value that the company set upon its franchise rights.  That is to say, the company capitalized at $12,000,000 the permission it had fraudulently obtained to lay pipes in New York City’s streets.30

The Consolidated Gas Company was a virtual and peculiarly oppressive combination, formed in 1884, of the New York, Manhattan, Harlem, Metropolitan, Municipal and Knickerbocker gaslight companies, with a total capital of $45,000,000.  A New York Senate Committee, called the “ Thomas ” Committee, was appointed, in 1885, to investigate.  It reported that nearly every company had hugely watered its stock ;  that although, for example, the Knickerbocker Company claimed $3,104,000 capital, there was nothing to show what capital it actually had ;  the records of the tax department showed that it had been paying taxes on only a small proportion of the total with which it was credited.31  Of the Consolidated Gas Company’s alleged $45,000,000 capital, the committee reported that there was less than $20,000,000 of actual investment.32  The company valued its various franchises at $7,781,000, yet it had never paid anything whatever to the city for them.  The committee further reported that during ten years the consumers had paid $9,000,000 to the company, and that, “ If these ten per cent. dividends should be calculated upon the capital actually paid in by the stockholders it would appear that the gas consumers in ten years have not only contributed such dividend, but a further amount sufficient, in fact, to nearly duplicate the present system of gas supply.”33

In view of these facts — matters of public record — it may well be asked whose property had been confiscated ?  If any had been, it was certainly that of the labor power of the army of workers who had built and who operated the plants, and of the working class of New York City in general constituting the great body of gas consumers.  When the contesting case was decided by Judge Hough in the United States Circuit Court in New York he accepted the estimate of the company’s capitalization as being $60,000,000, of which $12,000,000 was put down as representing franchise value, and Judge Hough then declared the eighty per cent. law confiscatory, and issued an injunction against its enforcement.


A Fact Not to be Overlooked.


The Supreme Court of the United States reversed that decision, assigning Justice Peckham to write the court’s opinion.  Considering the explosive hidden in Peckham’s decision, there was one especially remarkable fact which escaped general attention.

It was this :  Only two years before the eighty-cent bill was enacted, Justice Peckham’s brother, Wheeler H. Peckham, a corporation lawyer in New York, had given a written opinion in favor of the notorious “ Remsen gas grab ” bill the passage of which was being vigorously denounced by opponents of the steal.34  This was a bill giving a comprehensive new franchise as a practical gift to the Consolidated Gas Company.  The corruption in the New York Legislature in 1905, as disclosed by the findings of the Legislative Investigating Committee of 1910, was appalling.  The suppression of the eighty-cent gas bill in 1905,35 and the passage in that year of the Niagara water-power bill turning over Niagara Falls power to a corporation, resulted, it was estimated, in the distribution of at least $500,000 in bribes.  And these were only two of many scandals.  In fact, Senator Allds, later the majority leader, hastily resigned, in 1910, from the New York Senate.  Immediately after, the Senate by a vote of 40 to 9 found him guilty of corruption.


A Double-Edged Decision.


There doubtless was not, it is true, any connection between Wheeler H. Peckham pleading for the gas franchise “ grab,” as embodied in the Remsen bill,36 and the decision of his brother, Justice Peckham.  At any rate the facts bear reciting.  The decision of the Supreme Court, delivered by Peckham, reduced the Consolidated Gas Company’s capital to less than $56,000,000.  But in the act of declaring the eighty-cent law constitutional, it held that the company was entitled to earn dividends on $7,781,000 of franchise values.  And it also held that corporations were entitled to six per cent. “ earnings ” on their stock, thus giving the highest legal sanction to the minimum amount capitalists were allowed to drain from the wage workers on the enormous outputs of watered stock, not a dollar of which represented any actual investment.37

“ Thus,” says a legal analyst, “ was the legislative sword, drawn against monopoly, turned back into the vitals of the people, in whose protection it had been raised.  A prohibition designed to check overcapitalization had been transformed, in the judicial crucible, into a license for extortion.  Thus, as often happens, the people got the decision, but the corporations got the law — for future use.”38  This juridical law was that a mere franchise, no matter to what extent fraud and bribery had been used in getting it, became property, and could be capitalized.  All of Peckham’s associates — Fuller, Harlan, Brewer, White, McKenna, Holmes, Day and Moody concurred in the decision.

Chief Justice Fuller and Justice Day in particular were well versed in authoritative legal precedents as regarded franchise powers, having as attorneys, represented gaslight corporations.  Many of the gas and electric light plants in large cities, as well as industries and transportation systems, were controlled by the Standard Oil group.  This group, as we have seen, was powerful in the control of the Mutual Life Insurance Company.39


Doctrine of “ Transitory Risk.”


For forty years the courts had been steadily narrowing the rights of injured workers to get compensation, or those of their survivors from recovering damages.  By a remarkable decision the Supreme Court of the United States now still further curtailed the insignificant rights of the workers, if indeed any rights at all remained.  To do this the majority of the Supreme Court resourcefully invented a new term which they called “ transitory risk.”

Chauncey A. Dixon, a fireman operating an extra train on the Northern Pacific Railroad, had been killed by a head-on collision.  The time tables did not provide for the running of extra trains.  The train was not on the regular schedule, and the local telegraph operator had made an error.  Therefore, said Justice Brewer in delivering the opinion of himself, Brown, Peckham, Day and Holmes, the fault was the telegrapher’s ;  he was a “fellow servant” with the fireman, and in no way could the railroad be held responsible.  Chief Justice Fuller, and Justices White, Harlan and McKenna dissented.  The consequence, said they, of the application of the doctrine of “transitory risk” was that a railroad operating its trains solely through the orders of a train despatcher “ is a licensed wrongdoer as respects its employés,” and was exempted from the provisions of the law.40  Practically the railroad corporations were thus authorized to continue the slaughter of workers, and their immunity from the consequences was enlarged.

In the year in which this decision was handed down 3,632 railroad employés were killed, and 67,067 injured.  The total carnage, including passengers, for that one year was 10,046 killed, and 84,155 injured.41

Did ever a battlefield show a more ghastly slaughter ?  And what of the resources of the railroads that refused to pay the injured or the survivors of the killed ?  They had a total capitalization of nearly fifteen billion dollars, and a net average income of about three hundred million dollars.42  For the destitute worker, maimed or crippled, or for the widows and orphans of the slain, no redress of any kind ;  every point, construction and twist of law was used against them.  Vice versâ, law, or what purported to be law, was stretched to its farthest limits on behalf of railroad magnates so glutted with wealth that the mere spending of a moiety of it taxed their ingenuity.  And just as the railroad workers were treated by the Supreme Court, so were the workers in factories and mines, the slaughter in which was continuous.


Kidnapping of Workers Legalized.


The kidnapping of workingmen was the next step legalized by the Supreme Court of the United States.

On December 30, 1905, former Governor Steuenberg of Idaho who had incurred bitter enmity because of his extreme brutality toward miners striving for better conditions, was assassinated by a bomb.  The bomb was placed at the gate in front of his house.  At once, without the slightest proof or justification, the whole capitalist press of the United States declared that the crime had been committed by the Western Federation of Miners, or its agents.

A month and a half later, heavily-armed, special officers arrested Secretary-Treasurer William D. Haywood, President Moyer and former Executive Committeeman Pettibone of the Western Federation of Miners at the dead of night in Denver, Colorado.  Despite the law, they were not allowed to communicate with friends or to consult counsel.  Every chance was denied them of testing in the courts of their own State the legality of their arrest and extradition.  According to the provisions of the most elemental law, no one could be denied these rights.  Nor could any arrested person be extradited without regular and due process of law.  Common and statute law asserted these rights.  The Constitution of every State proclaimed them.  The Constitution of the United States guaranteed them, or professed to.


What Happened to Three Labor Leaders.


But Moyer, Haywood and Pettibone were boldly kidnapped.  The kidnapping officials had a special train in readiness, and the three union officials were rushed aboard.  It was evident that the Governors of Idaho and Colorado, both at the time tools of the mine owners, had secretly arranged, or connived at, this audacious undertaking.  When the next day the news was published, a roar of protest and indignation went up from the organized workers throughout the nation.  Time and time again they had seen capitalists, accused of heinous crimes, given every consideration and every opportunity of contesting extradition.  Now the workers again clearly saw that two kinds of law prevailed — one variety for the capitalist, and another for the working class.

Even before a trial was held, the Mine Owners’ Association, the Citizens’ Alliance and other capitalist organizations declared Moyer, Haywood and Pettibone guilty, and demanded that they be hanged.  The Western Federation of Labor immediately started habeas corpus proceedings before a Federal circuit judge.  Upon his denying the writ, an appeal was taken to the Supreme Court of the United States.

From old it had been held a sacred rule in the courts that habeas corpus cases should be determined with the least possible delay, for the reason that they involve the personal liberty of the individual.  But instead of considering the appeal, the Supreme Court of the United States took a long summer vacation.  Meanwhile the arrested men remained in prison.


Habeas Corpus Writ Refused.


Finally after it had leisurely set a day for the hearing, the Supreme Court of the United States, on December 3, 1906, by a vote of eight to one, handed down its decision, Harlan delivering it.  That decision virtually legalized the kidnapping of workers, annihilated the right of habeas corpus so far as the working class was concerned, and reduced that class to the complete mercy of capitalist oppressors.  Only Justice McKenna dissented.  He denounced the kidnapping as “ a crime, pure and simple,” and declared that “ the States, through their officers, are the offenders.”  This, he said, was not, as the majority disingenuously sought to make it out, a case of an individual kidnapping an individual.  “ No individual or individuals could have accomplished what the power of two States accomplished ;  no individual or individuals could have commanded the means and success ;  could have made two arrests of prominent citizens by invading their homes ;  could have commanded the resources of jails, armed guards and special trains ;  could have successfully timed all acts to prevent inquiry and judicial interference.”43

More delay ensued before the three labor-union officials were brought to trial before the local court at Boise, Idaho.  A verdict of acquittal was the result of the whole affair.  The combined power of the most powerful capitalist organizations, with the power of Government and States and the utterances of a prejudiced President at their command, had been unable to produce the slightest evidence against Moyer, Haywood and Pettibone.  But the proceedings did reveal the fact that private detectives, in the pay of capitalists, had blown up a depot at Independence, Colorado, with the object of charging the striking miners with the deed, and thus discrediting them.


A Sinister Precedent.


The decision of the Supreme Court of the United States legalizing kidnapping thus set the precedent for the similar kidnapping recently of the two McNamara brothers, officials of the Structural Iron Workers’ Union.  Secretly kidnapped in Indianapolis, they were denied counsel or process of law, and were rushed, under armed guard, to Los Angeles, California, where they were accused of instigating or causing the destruction of the Los Angeles Times building and the Llewellyn Iron Works and the loss of twenty-one lives.

As the trial was proceeding at Los Angeles they confessed their guilt on December 1, 1911, James B. NcNamara to the blowing up of the Los Angeles Times building, and J.J. McNamara to dynamiting the Llewellyn Iron Works.  The one was sentenced to life imprisonment, the other to fifteen years.44  The strong evidence gathered against them led, it was stated, to their confessions.  But this very fact — the strength of the evidence — made the matter of their being kidnapped all the more unnecessary, arbitrary, and tyrannical.  Since the evidence was claimed to be so conclusive, the prosecution was under all the more reason to move according to due process of law.  Cases had frequently happened of prominent officials or capitalists, accused even of murder like a former Governor of Kentucky, fleeing to other States but no attempt had been made to kidnap them.

The significant fact should be added that by a judicial device the case of the detective Burns, who was indicted for kidnapping the McNamaras, was transferred from the State courts to the Federal courts, and Judge Anderson at Indianapolis cancelled his bond, quashed his indictment, and set him completely free without even subjecting him to trial.

The decisions of the Supreme Court of the United States undermining the power, or extinguishing the rights, of the working class were sinister enough.  But now came another decision of so extravagant, unexpected and ominous a nature, that labor unions were dumfounded from sheer amazement.


Sherman Act Used Against Labor Unions.


For twenty-one years the Sherman anti-trust law had been on the statute books.  When the law was passed, trade unions had supported it.  It did not contain the remotest reference to labor unions.  It did not appear to apply to them ;  few dreamed that the time would ever come when it would be so applied.  That law was passed at the behest of the middle class, and was expressly and distinctly aimed at trusts and railroad combinations.

The Supreme Court of the United States had been unable to discover that the Sugar Trust was a trust ;  it had not broken or even impaired a single trust ;  not a trust magnate had suffered a day’s imprisonment because of its decisions.  But it did now fully discover that the labor union was a trust in restraint of trade.  The very trust capitalists who were amenable under that law now used that self-same law to disrupt labor unions.  Enjoying immunity themselves, they demanded that the labor unions be strictly prosecuted.


Danbury Hatters’ Case.


The action in which this extraordinary turn developed was the Danbury Hatters’ case.  Alleging that the United Hatters’ Union had injured their business through a boycott, Loewe and Company of Danbury, Connecticut, brought suit against the union.  Further alleging that the union was a conspiracy in restraint of trade, under the provisions of the Sherman antitrust law, Loewe and Company asserted that they had suffered to the extent of $80,000, and they demanded that under that law threefold damages be awarded them.  The object was clear.  If such an enormous sum in damages were allowed, the union would be bankrupted, and with no striking fund in the treasury, it could not prosecute a strike, or perhaps even exist.


Labor Unions “ Conspiracies.”


The Federal Circuit Court in Connecticut gave a verdict of $220,000 against the two hundred members of the United Hatters’ Union.  The particular question, however, carried to the Supreme Court of the United States was whether under Section 7 of the Sherman anti-trust law the Loewe Company could maintain an action against the Hatters’ Union.  The Supreme Court unanimously decided that it could.  It held that the union was a combination in the form of a trust, and its so-called boycott was an interference with a free flow of trade between the States, and, therefore, in restraint of trade.

Here was a capital blow at organized labor, the masterpiece of all assaults.  Under this decision every labor organization could be proceeded against by any Federal prosecuting officer, and union members could be punished by a fine of $5,000 and by imprisonment for a year.  Soon after this decision the hat manufacturers entered into a combination or “ lockout ” to enforce non-union conditions, which meant a reduction in the workers’ wages and further privation.

For the reasoning of the Supreme Court one would be justified in feeling the supremest contempt, were it not for the evident fact that this species of reasoning coincided exactly with the demands of the capitalist class.  A labor union is an organization to protect the only property its members have to sell, which is that of labor power.  On the other hand, a trust is a concentrated organization to monopolize the production and control the distribution of the means by which people must live.  Suddenly, and without warning, an act intended to break up trusts is applied to labor unions.


Chattel Slavery Outdone.


Capitalist organizations hailed this decision with joy, and their mouthpieces once more eulogized the Supreme Court as the bulwark of “ the rights of property and the freedom of trade.”  Among the workers the decision was received with execrations.

“ We are living in a time portentous of results for the present as well as the future,” wrote Samuel Gompers, the president of the American Federation of Labor.  “ The slave owner was usually restrained from going to extremes in the treatment of his slaves by the fact that they represented property value to him, but if the industrial situation ensues indicated by this court decision, the wage workers would be more under the control of the unscrupulous employer than was the slave under his owner. . . . The event which we feared has come to pass.  The [Sherman anti-trust] law has long been admitted to be of no value in restraining or really punishing trusts.  Useless as an instrument of good, perverted from its original intent, it has now been made an instrument of positive mischief.  We know the Sherman law was intended by Congress to punish illegal trusts and not the labor unions, for we had various conferences with members of Congress while the Sherman act was pending, and remember clearly that such a determination was stated again and again.”  Outlaw the normal activities of the workers to protect themselves, Gompers concluded, and a movement would eventually result which he intimated would be nothing more or less than a revolution.45

But although labor unions were adjudged conspiracies in restraint of trade, the point as to whether union members could be collectively held liable for damages was not determined by the foregoing decision.  This question did not come before the Supreme Court of the United States until 1911.  On January 15, 1912, this Court, in denying a writ of certiorari in the case of Loewe vs. Lawler (Danbury Hatters’ case), virtually affirmed the judgment of the Circuit Court of Appeals that members of a labor union could not be held to answer for damages done due to a strike or accompanying boycott, ordered by union officers, unless it was conclusively proved that members of the union actually participated in “the acts of violence,” or authorized them, or had guilty knowledge of them.  Even as it stood, this decision contained sinister potentialities.


Boycott Illegal, Blacklisting Legal.


At about the time it decided the first Danbury Hatters’ case, the Supreme Court of the United States handed down other decisions greatly strengthening the power and aggressions of capitalists and further weakening the defenses of labor unions.  A decision dealing with the Erdman Interstate Act of Congress enabled the railroads to maintain a blacklist against members of labor organizations, and discharge them at will.

This decision came in the suit of Adair vs. The United States, decided January 27, 1908.  Had Congress power, under the Erdman Act of 1898, to make blacklisting a crime ?  The United States District Court in Kentucky decided that Congress had the power.  The Supreme Court of the United States reversed this decision, and held that blacklisting was not a crime.  Upon what ground did the Supreme Court of the United States declare this provision of the Erdman Act unconstitutional ?  Why, upon the ground that it was repugnant to the fifth amendment of the Constitution that no person shall be deprived of liberty or property without due process of law !46

Singular that the Supreme Court had not thought of this amendment when it virtually legalized the kidnapping Of Moyer, Haywood and Pettibone.  Strange that it did not see the application of the amendment to the liberty and property of the laborer ;  his liberty to agitate for better conditions, and his right to protect his labor power, which was the only property he had.  But such decisions were really neither strange nor singular coming from men who never would or could have gone on the Supreme Court Bench had it not been for their capitalist training, environment, clientage and alliances.

As we have said, the country was filled with the destitute, maimed or crippled who had been mangled on the railroads or in the factories or mines.  The huge army of victims killed while at work crowded the graveyards.  What became of their widows ?  What of their sons and daughters ?  Vital statistics revealing deaths from disease and inanition can tell part of the tale.  The prison records can supply another part ;  the tale of young men driven to crime by wretched environment and gaunt poverty.  The remainder of the tale is to be read in brothels or on the midnight streets of cities.


Fuller Almost a Millionaire.


When an attorney, Chief-Justice Fuller had contested claims of injured workers, or those of survivors of the slain.  So had Day, and so, likewise, had Holmes.  On the Bench they had generally decided against the workers.  The country was replete with poverty.  But when Chief Justice Fuller died in 1910, his will, admitted to probate in Chicago, on September 17 of that year, disclosed that he left an estate valued at $950,000.

Of this amount, it was estimated that $115,000 had been bequeathed to him by his wife, who had died in 1904.  Of the entire estate left by Fuller, a considerable portion was in real estate.  The trustees named in the will were Stephen S. Gregory and the Merchants’ Loan and Trust Company.  In a carefully worded interview given to the newspapers Gregory took special pains to point out :  “ I wish that stress would be laid upon the fact that Fuller did not make his money since he became judge.  His wealth was acquired through the increase in value in real-estate holdings in Chicago which he acquired early in life.  He made no money while a judge.”48




1 184 U.S. Reports, 540.

2 185 U.S. Report, 409. My italics.—G.M.

3 House Report No. 1468, Fifty-third Congress, Second Session.  The revelations of the armor-plate frauds produced a deep sensation at this time.

4 By receiving rebates from railroads, large corporations and trusts were easily able to undersell and undermine competitors.  Rebating was illegal and punishable.

5 House Report No. 1468, Fifty-third Congress, Second Session.

6 Northern Securities Company vs. U.S., 193 U.S. Reports, 197.  As illustrating the possibilities of secret bargaining, the statements of Wharton Barker, a Philadelphia banker, conservative political economist, and at one time a middle-class (“ middle of the road ”) candidate for the Presidency, may here be referred to.  Barker testified before the United States Senate Committee on Interstate Commerce, on November 20, 1911, that he had been told by one of the Wall Street banking magnates that in the campaign of 1904, when Roosevelt was a candidate for the Presidency, that the Wall Street interests had made a bargain with Roosevelt on the railroad question.  “He is to ‘ holler ’ all he wants to,” the magnate was quoted as saying, “ and by and by — not immediately, but in due time — a railroad bill is to be recommended by the President.”—which was to abolish rebates, free passes, legalize pooling, and permit an increase of capital stock.  Roosevelt ridiculed this testimony.

7 The truth of this generalization is so obvious and so clearly sustained by a vast multitude of examples, that it requires no elucidation here.  Speaking on this point, United States District Attorney Henry A. Wise, in an address at New York, on November 14, 1911, told how rich smugglers and thieves had been let off with a fine by the courts, and poor offenders sent to prison.  “ But,” he observed, “ it has been difficult to send the rich to jail.  The judge evidently thinks that they should have plenty of warning, and in case after case of this kind, I have howled in vain for jail sentences.”  Among other examples, Wise instanced the case of the Sugar Trust.  It had defrauded the Government of vast sums, yet no one bad been inculpated except “ dead men and $15 a week clerks.”  After being forced to make certain restitution to the Government, the Sugar Trust had recouped itself by raising the price of sugar.

8 Annual Report of the U.S. Attorney-General for 1905, p. 6.

9 Swift vs. U.S., 196 U.S. Reports, 375.

10 On May 19, 1902, the Government began an action against the Beef Trust.  The packers interposed every possible legal obstacle.  On July 1, 1905, however, the Federal Grand Jury of Chicago indicted seventeen individuals and five corporations.  In 1906, Judge Humphrey gave them immunity because they had testified in an investigation conducted by the Bureau of Corporations.  The Government continued its actions, and there were more years of law delay.  Finally, on September 12, 1910, new indictments were found against Armour, Swift, Morris and other packers.  Just as the packers were about to be put on trial, in November, 1911, they raised the question that the Sherman anti-trust act was unconstitutional and they secured release under bonds or writs of habeas corpus.  After nine years’ delay, the Supreme Court of the United States was then appealed to for a stay of their trial.  On December 5, 1911, this application was refused.

11 Section 3 of the Elkins act of 1903 gave immunity to testifying witnesses.  All that a magnate had to do was to give some slight testimony, and this automatically made him exempt from prosecution.  This bill, as is seen by the name, was introduced and pushed by the notorious Stephen B. Elkins, whose fraudulent claim for nearly two million acres had been validated by the Supreme Court and who was himself an extensive railroad magnate.  The principle was the same as if a burglar, highwayman or murderer after having given testimony was declared immune from prosecution.  And it may be said that what with their methods of oppression of wage workers and extortions the railroad corporations and trusts directly and indirectly caused an immense number of deaths.

12 209 U.S. Reports, 12.  Justice Harlan was the only dissenter.

13 Justices Holmes and Moody dissented.

14 Fuller, Harlan, Holmes and Moody expressed dissent.

15 Harriman vs. Interstate Commerce Commission, 211 U.S. Reports, 407.  Former United States Senator John C. Spooner was one of Harriman’s counsel in this action.  Justices Day, Harlan and McKenna dissented.  Moody, not having heard the argument, took no part in the decision.  Spooner and Joseph H. Choate recently appeared (it may be observed here) for the Steamship Trust as the trust’s counsel in an action brought by the Government in the United States Circuit Court against the trust as an illegal combination.

16 For the full facts of Harriman’s enormous thefts, see, Report No, 943 of the Interstate Commerce Commission, “ In the Matter of Consolidations and Combinations,” etc., pp. 320-345.  The Chicago and Alton transaction is described in pp. 340-345.  The Commission stated that liabilities of $113,894,000 were placed upon the Chicago and Alton Railroad which had originally cost approximately $58,000,000.  Yet not a dollar of tangible property had been added.— p. 342.

17 Ibid., 345-346.

18 United States vs. Delaware & Hudson Company ;  United States vs. Erie Railroad Company ;  United States vs. Central Railroad of New Jersey ;  United States vs. Delaware, Lackawanna & Western Railroad Company ;  United States vs. Pennsylvania Railroad Company ;  United States vs. Lehigh Valley Railroad Company.—213 U.S., 366.

19 Annual Report of the Attorney-General for 1909 : p. 4.

20 Harlan, White, Day and Holmes dissented in Lochner vs. New York.—198 U.S. Reports, 45.

21 Testifying before the New York State Factory investigating commission, on November 14, 1911, Miss Frances Perkins, Deputy Secretary of the Consumers’ League, described the vile conditions of many bakeshops in New York City and their causes.  “. . There was every evidence in these bakeries,” Miss Perkins related, “ that employes were allowed to sleep in the workrooms, some on cots, and some on the bread trays, even.  As the men are obliged to work long hours, it is only natural that they should snatch naps whenever possible, and a favorite place is on the sacks of flour.

22 Davidson vs. New Orleans, 96 U.S. Reports, 194.  At this point, adopting the excellent suggestion of Professor W.E.B. DuBois, we have purposely capitalized the word Negro.  “ Negro,” says Professor DuBois, “is not the corresponding term to the word white ;  black is that term as everybody knows.  Negro does not refer to color simply, because there are black people who are not Negroes.  Negro is the designation of a race of men just as Indian, Teutonic or Celtic.  Historically the word Negro has always been capitalized, and the small letter was only used during the latter days of the slavery agitation when Negroes were classed with real estate.”

23 Civil Rights Cases, 109 U.S. Reports, 3.

24 U.S. vs. Cruikshank, 92 U.S. Reports, 542.

25 Civil Rights Cases, 109 Ibid., 3.

26 In re Lockwood, 154 Ibid., 116.

27 L. & N.R.R, Co. vs. Schmidt, 177 Ibid., 230.

28 Plessy vs. Ferguson, 163 U.S. Reports, 537.  The case was that of a quadroon who sued to test the constitutionality of an act passed by the Louisiana Legislature compelling the separation of whites and negroes in trains, etc.  Justice Harlan expressed his contempt for the decision of his colleagues.  He said it was a pernicious opinion, and that the argument that social equality could not exist between the two races “ is scarcely worthy of consideration ” (p. 561).  A complete reactionary, both as regarded the development of the trusts, on the one hand, and that of labor organizations on the other, Harlan was, nevertheless, the one member of the Supreme Court who stood up consistently for the rights of the Negro race.

29 Clyatt vs. U.S., 198 U.S. Reports, 207.  Brewer delivered the Court’s decision.  In this case, also, Harlan dissented.  “ The accused,” he said, “ made no objection to the submission of the case to the jury, and it is going very far to hold in a case like this, disclosing barbarities of the worst kind against these negroes, that the trial court erred in sending the case to the jury.”

30 Many of the original franchises had been secured by fraud and bribery.  See, the “ History of Public Franchises In New York City,” pp. 92-99, and the “ History of Tammany Hall,” p. 248, by Gustavus Myers.

31 “ Report of the Special Senate Committee, 1885: pp. 8-9.

32 Ibid., p. 12.

33 Ibid., p. 11.

34 And see details in Chapter XVIII of Wheeler H. Peckham’s connection with the Standard Electrical Subway Company, and how, in 1889, he was active in seeking to get an underground conduit franchise for it.  The electric light companies later passed under the control of the Consolidated Gas Company.

35 The bill, however, was adopted the next year.

36 So called from the name of Assemblyman Remsen, who introduced it.  In a long interview published in the New York Evening Post, April 16, 1910, Remsen said that the bill was handed to him to introduce and that it must have come from Senator “ Pat” McCarren, the corrupt tool of the Sugar Trust and of the gas, traction and other interests.  As the recent president of the City Club, a so-called reform organization, Wheeler H. Peckham, in advocating the passage of the Remsen bill, shrewdly used his connection with that club to give the impression that the City Club favored it.  “ Mayor McClellan,” stated Remsen, “ told me after he had signed the bill that he had intended to veto it, but had been convinced by eminent lawyers, among whom were Wheeler H. Peckham, that the bill should be made a law.”  Public protest, however, was so great that when the bill went to Governor Odell he vetoed it.  It may be mentioned that when S. Fred Nixon, Speaker of the Assembly at this period, died, he left a fortune of $1,500,000, much of which he had deposited in Canadian banks.

37 212 U.S. Reports, 19.

38 Jesse F. Orton, “ Privilege Becomes Property Under the Fourteenth Amendment,” The Independent, issue of Oct. 12, 1911.

39 Henry H. Rogers and William Rockefeller were vice-presidents of the Standard Oil Company, which largely controlled the Consolidated and other gas companies.  Rockefeller and George F. Baker were directors of the Consolidated Gas Company.  It was of Elihu Root, so powerful a factor in Roosevelt’s administration and at present under Taft’s that Harriman wrote to Sidney Webster :  “ Ryan’s success in all his manipulations . . . has been done by the adroit mind of Elihu Root. . . .”  Root was, like Rockefeller, Rogers and Baker, a trustee of the Mutual Life Insurance Company.  The Ryan referred to was Thomas F. Ryan, the capitalist magnate.  In 1886 he was one of the manipulators of the Metropolitan Traction Company, the stockholders of which were robbed of $90,000,000.  Ryan then organized and dominated the Tobacco Trust and extended his ownership of properties.  Ryan was one of the directors of the Consolidated Gas Company, and Root his main attorney.

40 Case of Northern Pacific Railway Company vs. Dixon, 194 U.S. Reports, 338.

41 Nineteenth Annual Report of the Interstate Commerce Commission, p. 109.

42 Ibid., 83 and 303.

43 Pettibone vs. Nichols, and Moyer vs. Nichols, 203 U.S. Reports, 192, etc.

44 The dynamitings were the result of a bitter war carried on against labor unions by various powerful capitalist organizations which were using every means to destroy the unions.  The McNamaras, it may be said, were aligned with the extremely conservative ruling element of the American Federation of Labor, were Democrats in politics and Roman Catholics in faith, and refused, like other leaders of the American Federation of Labor, to support the peaceable political-educational propaganda of the Socialist Party.

45 The American Federationist, issue of March and April, 1910.

46 208 U.S. Reports, 161.

47 This was an act passed by Congress, June 11, 1906, relating to the liability to employés of common carriers in the District of Columbia and Territories, and in interstate commerce.—207 U.S. Reports, 463.

48 See, New York Herald, July 12, 1910, and other newspapers of that date.