HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

CHAPTER XVII

THE SUPREME COURT UNDER CHIEF JUSTICE WHITE



For the first time in the annals of the Supreme Court of the United States, the choice of a Chief Justice was not made from the ranks of lawyers but the selection was determined of an Associate Justice of the Supreme Court itself.  The member thus chosen by President Taft to succeed Fuller was Associate Justice Edward D. White.  President Taft, succeeding Roosevelt in 1909, had himself been a judge on the bench of the United States Circuit Court.  Indeed, it was authoritatively said that Taft’s highest ambition was to go on the Supreme Court Bench, but his election as President interfered with his desire.  After Fuller’s death Taft had filled vacancies on the Supreme Court by appointing Horace H. Lurton and Charles E. Hughes as Associate Justices to succeed Peckham and Brewer.  Although these two appointments were made during the incumbency of Fuller, yet they came late in that period, and we have accordingly reserved description for this chapter.


Taft’s Views and Environment.


Of all the successive Chief Executives, none was perhaps more honest, ingenuous and bluntly outspoken in his views than Taft.  He had neither political instinct nor political ability, and he entirely lacked that superfine caution and cunning temporizing that marks the practiced politician.  His father had been a corporation lawyer and so had he ;  and his brother Henry W. Taft had represented the New York, New Haven and Hartford Railroad.  In his class instincts, reŽnforced by training and environment, President Taft was an avowed spokesman for the interests of the dominant class.  Unlike Roosevelt, he did not court popular favor by wordy denunciation of capitalist magnates while in act and fact serving their ends.

Obediently Taft ministered to their interests, but not primarily for the reason that he desired to win their support or campaign contributions.  He did so, because, on the whole, he sincerely believed that it was the right and proper thing to do ;  conviction, not calculation, swayed his acts.  Infinitely far removed from either knowledge or understanding of the working class, he was impervious to its position, aspirations and movements.  But to the masters of capital and their retainers his ear was ready and his acts responsive.  With the currents of their atmosphere he had been surcharged from his earliest years.


His Defense of the Judiciary.


No better illustration of his tenacious defense of his class and his indifference to, if not ignorance of, popular thought could have been afforded than his effusive praise of judges.  At a time when a profound distrust of capitalist law, and a resentment at the manipulation of law, had permeated the mass of people,1 Taft publicly gloried in his profession of law.  The working class had seen law arbitrarily divided into one application for the rich, and another for the poor ;  they had seen it used as a powerful and apparently invincible instrument for the entrenchment of one class ;  and the crushing and attempted dispersion of another.  They had seen the mass of lawyers flocking to the side from which rich fees and power were to be had, and distorting law for the benefit of those who could repay them with a part of their accumulated loot.  They had seen the judges selected from these lawyers, and they had been the victims of the extraordinarily one-sided and partial decisions of those judges.

Popular respect for the judiciary had broken down ;  among the initiated there never had been much, if any, respect ;  but now the lack of reverence, amounting to bitter indignation, had grown to tremendous proportions.  The people began to demand the exercise of popular control over the judiciary through the power of recall.

But the capitalists as keenly realized that it was mainly through the decrees of judges that their class executed their purposes.  Taft vetoed the Arizona Constitution bill providing for the recall of judges, and, caring nothing for popular opinion, gave this extravagant eulogy in his speech at Pocatello, Idaho, on October 6, 1911 :  “ I love judges and I love courts.  They are my ideals on earth of what we shall meet afterward in Heaven under a just God. . . .”  He resented, he said, with “ deep indignation ” the attacks upon the courts, and could see nothing else in those questionings of motive and acts than attacks for “ mere political purposes.”  Whereat the powerful capitalists who make judges must have smiled deliciously ;  by the same logic if judges are predestined for a reserved place in Heaven, their creators even more so must certainly be !

This radiant outburst of Taft’s genius gives something of an insight into the mentality of the man of the White House who has appointed six of the nine judges and a Chief Justice of the Supreme Court of the United States.

But it is not Taft’s psychology which is so much of moment, as the consideration of what the actual facts were as concerned the election or appointments of judges.  It will be seen that judges did not ascend to the Bench by any celestial route or by the workings of mysterious laws of Providence.  The means used and the determining influences were of the commonest earthly sort, involving such sordid measures, in the frequent cases of State judges, as the purchase of nominations, and in cases of virtually all judges, high and low, as the backing of political bosses who in turn were controlled by the great corporations.


The Making of Judges.


We shall not pause here to enter into what would unavoidably be an extended account of how State judges were rewarded with nominations and elections.  The revelations brought out by legislative investigating committees in New York and other States disclosed how they often practically purchased nominations, or were pushed by powerful corporations whose campaign contributions were the deciding factor.2  Leaving aside, then, the sphere of State judges, we shall simply call attention to a series of facts made public in 1908 regarding the corporate control of judges in general.

From time to time serious public scandals had developed, particularly in the case of various Federal judges charged with being susceptible to railroad influences and of availing themselves while on the Bench of favors from railroads.  Not often was it possible to prove the charges legally, inasmuch as such transactions were necessarily and largely of a secret character.  It was also to be expected that the United States Senate, composed as it was almost wholly of railroad or other corporation lawyers or magnates, would, as the trial body, refuse to vote impeachment.  Federal Judge Charles Swayne, for example, accused on many specifications of favoritism to railroads, escaped impeachment,3 and a number of other Federal judges charged with the same offences were not even brought to trial.


Hunting for a Qualified Judge.


There were also those exceedingly edifying developments regarding the Joint Traffic Association suit, brought out in the course of a hearing before the Committee on Interstate Commerce of the United States Senate, in 1896.  The Joint Traffic Association suit was an action instituted by the Government in the Federal Courts, in New York, against thirty-two railroad companies.

“ When it came up,” Wallace Macfarlane, U.S. District-Attorney for the southern district of New York, testified on December 17, 1896, “ Judge Lacombe stated that in his opinion he was disqualified to hear the case, or any proceedings in it, as at that time he owned bonds or stocks in some of these railroads ;  and he also stated that he understood that most, if not all, of the judges of that circuit were under the same disqualification.

“ It was finally found that Judge Wheeler, the district judge of the Vermont district, was apparently the only judge in the circuit who was not under a disqualification similar to that which Judge Lacombe stated that he was under, namely the holding of some bonds or stocks in one of the defendant railroads.  It was eventually arranged that the case should be heard before Judge Wheeler, as it finally was. . . .

“ Before the cause was heard, Judge Lacombe had become qualified.  The disqualification which he had stated when the case first arose had been removed by the sale of any bonds or stocks which he had held at the commencement of the proceedings.  Judge Lacombe then stated that, as it had been arranged that the cause should be heard before Judge Wheeler, he preferred to have it remain that way, as the cause was one which he could safely assume would be appealed, whatever the result might be, and there would be no difficulty in constituting an appellate term there, and he [Judge Lacombe] would be needed for the purpose.”  In other words, Judge Lacombe would be one of the judges sitting on appeal.

This testimony, of so illuminative a nature that comment is needless, is given here exactly as it is published in Document No. 64, Senate Documents, Fifty-fifth Congress, First Session.

In the fall of 1908, William R. Hearst, proprietor of a number of newspapers, and a dabbler in politics, contrived to get hold of copies of a number of letters written by John D. Archbold, then the practically active head, and now (1912) the president, of the Standard Oil Company.  These letters, the authenticity of which was not denied, revealed that Archbold had the most confidential relations with Quay, Foraker and other United States Senators and legislators and with State officials.  One of the letters disclosed the fact that on August 3, 1899, Archbold had urged upon Quay the selection of Thomas A. Morrison for the Pennsylvania Supreme Court.  Another letter, dated September 5, 1900, from Archbold to Governor Stone, of Pennsylvania, recommended the appointment of John Henderson to the same court.  Both Morrison and Henderson were duly appointed.  Other letters, dated February 5, 1900, and March 15, 1900, from Archbold to Attorney-General John P. Elkin, of Pennsylvania, showed that Elkin received $15,000 from Archbold ;  Elkin later became a judge of the Supreme Court of Pennsylvania.  According to these letters (and they were doubtless but a very few of many) Archbold had his secret political mechanism, in the operation of which a mere word from him to the political bosses was sufficient.  If this were true, as it evidently was, is it not a fair assumption that the vigilant solicitude would be extended to the highest, as well as to the lesser, courts and offices ?


Concentration of Wealth and Power.


The wealth and power at this time of the Standard Oil Company allied with J. Pierpont Morgan, were so gigantic as to be inconceivable even when expressed in money terms.  In 1904, the total capitalization of all of the trusts, including franchise trusts and railroad groups, was fully $20,000,000,000 ;  by January 1, 1908, the grand total had risen to nearly $32,000,000,000.4  “ This thirty-one billion dollars [$31,672,000,000] of industrial, franchise and transportation trust capitalization,” stated Senator LaFollette, “ does not represent all the corporate power in the hands of the Standard Oil-Morgan combination.  It does not include their financial consolidations — their banks, trust companies and insurance companies.”5  Much of this wealth was owned outright or controlled by the Standard Oil Company and Morgan ;  the remainder was largely owned by smaller magnates subsidiary to the purposes and interests of the great combination which had already begun a systematic process of crushing or completely subordinating some of them.

This enormous power, centered in a few financial dictators, alarmed and affrighted beyond description the remnants of small business men still remaining.  Overawed by such vast wealth and power in a few hands, clinging to the hope that by some magic of court decree the great combinations would be dissolved, they still continued their agitation for the enforcement of the anti-trust act.  Necessarily, therefore, eager attention was bent upon the court of last resort, the Supreme Court of the United States.  Never as much as after Fuller’s death had the question of who would be Chief Justice excited such speculation and interest.


Justice White Appointed Chief Justice.


Surprise was great when Taft appointed Associate Justice White to the vacancy.  Taft was a Republican, White a Democrat ;  this effacing of partisan lines was in itself a stroke causing wonderment to those who did not see that essentially both the old political parties were adjuncts, reflexes and instruments of the capitalist system.  Both stood for its perpetuation, and neither represented in the remotest degree the demands of the working class.  The label differed ;  that intrinsically was the only difference between the two parties, although on minor points, arising from the conflicts within the capitalist sphere, they superficially had their contentions.

Why, it was asked, was White appointed Chief Justice ?  There were those who sought to explain the appointment on the ground of religious attachment.  Vague yet persistent reports were spread that the influences of the Roman Catholic Church were subtly and effectively used in White’s behalf.  White was educated in a Jesuit college, the Georgetown University ;  and the Roman Catholic Church, virtually outlawed in many parts of the country a century or more ago, has grown to a position of great economic power, owning as it does, vast properties and including, as it does, too, many capitalist magnates of the first order.  The prelates of this church have taken an organized stand for the perpetuation of the present capitalist order, and for the denunciation of all radical movements, especially of Socialism.  But whether the rumors of the Roman Catholic backing of Chief Justice White are true or not, we of course cannot say ;  they are given here in the form of unverified reports, yet possibly not without substance.

But, after all, White’s appointment as Chief Justice was not determined by any question of religious faith.  Throughout a long career he had evinced the highest qualifications for appointment to the exalted post of Chief Justice, as those qualifications were weighed and understood by those upon whom his appointment and confirmation depended.  On the Supreme Court Bench he had been recognized as favoring trusts.


Chief Justice White’s Career.


Born to some wealth, White had been brought up in a typically Southern atmosphere, abounding in class distinctions at the top of which he was positioned.  He acquired a large sugar plantation, which he has since extended, in the La Fourche district, Louisiana.  In various published accounts he has been rated a millionaire, but these accounts are not to be accepted as responsible ;  hence it is not possible to state his wealth explicitly.  His friends say that he is a comparatively poor man.  As a lawyer in New Orleans, his clients were mainly Jewish merchants of wealth, or at least, of means ;  we do not find a single case in which he pleaded the cause of a poor litigant.  However, he did not represent any railroad interest, and the only large corporation he served as attorney was the Whitney Bank, now the biggest in New Orleans.  He combined law and politics ;  his was the characteristic case of a rich, young man entering politics, which in Louisiana meant, of course, Democratic politics.  He became one of Nicholls’ Political lieutenants ;  he was a State Senator ;  and when Nicholls became Governor of Louisiana he appointed White, in 1878, a judge of the Louisiana Supreme Court.

At that time the controlling, most all-powerful single factor in Louisiana politics was the Louisiana Lottery Company, with its net annual revenue of $8,000,000 a year.  Widespread agitation to abolish this company gradually crystallized, in 1890, in the introduction of an act in the Louisiana Legislature refusing to extend its charter.  On May 22, 1890, Senator Foster proposed a resolution in the Legislature to inquire into charges that members were being offered $1,000 each for their votes.  Joseph St. Armant was arrested on June 22, 1890, on a charge of bribery.  Governor Nicholls vetoed the bill refusing to extend the company’s charter, but on July 8, 1890, the House passed it over his veto.  During this time White was actively and publicly opposing the Louisiana Lottery Company.

White had been acting as the Treasurer, of the State campaign committee.  In 1890 the Sugar Trust, on the one hand, and, on the other, the beet sugar-cane planters, were engaged in a bitter quarrel over the tariff ;  since then, it may be observed, their interests have become more or less identical, as has been shown by bills of particulars in Government actions.  The sugar planters were among the most adroit and persistent lobbyists at Washington, a fact attested by the passage of a certain act in 1890, which act we shall have good occasion to describe presently.  Thus it was that White, a sugar-cane plantation owner, was elected to the United States Senate, and thus, also, White’s successor in the Senate, Blanchard, was interested in sugar plantations, and one of the present United States Senators from Louisiana — Murphy J. Foster — is a brother of J. Warren Foster who owns perhaps the largest sugar-cane plantation in the State.


White Bitterly Attacked.


After White’s election to the United States Senate, and before he took his seat (in 1891) in that body,6 a campaign of assault was opened upon him by the New Orleans Times-Democrat, one of the leading newspapers of that city, and of a partisan Democratic character.

On July 18, 1890, it contained an editorial asking “. . . Is Senator-elect White an honest man ?  Is he a pure man ?  Or is he a hypocrite and cheat ?  There are rumors, thick as leaves in Vallambrosa, to the effect that he attained to the dignity of which he is so proud by means that were not pure. . . . Are these rumors true ? . . . Will the Senator tell the people of New Orleans how much money it took to secure him his election to the United States Senate by the Legislature of Louisiana ?  Will he tell where he got the money, and in what special channels it was disposed of ?

“ These are not idle questions.  The rumors to which we refer are on everybody’s, lips ;  they are either true or they are false.

“ Our columns are wide open to the Senator-elect for purposes of explanation.  If he can prove the rumors false the Times-Democrat stands ready to print his statement and to make the amplest possible reparation.  . . .”

The Times-Democrat charged editorially on July 22, 1890, that it could prove “ that the campaign committee of which Senator-elect White was treasurer, received the sum of ten thousand dollars from the head and front of the Lottery Company, which the Senator disbursed in the interest of Gov. Nicholls and himself in the last campaign.”  The statement went on :  “ Let not the Senator attempt to deny the charge and allege the money was subscribed by an individual and not by the Lottery Company.

“ When the check, which had been solicited, was tendered to the committee, one member objected that it came from the Lottery Company.  Another member said that he regarded it as an individual subscription.  One of the committeemen then said, ‘ Gentlemen, let us have no misunderstanding ;  the money comes from the Louisiana Lottery Company.’  The money was received, turned over to the Treasurer (now Senator-elect) White, and used in the campaign to elect that exemplar of all the virtues — Gov. Nicholls.

“ So much for the charge.  Will the Senator-elect dare deny it ?  It is further charged — the Times-Democrat charges and can prove that . . . [Mr. White] received from the Lottery Company, or rather from the head and front of that concern, the sum of ten thousand dollars to assist him personally in his fight for the Senate.

“ Did Senator White use that amount honestly ?  The amount is large and could scarcely have been consumed in stationery.

“ The Times-Democrat does not court a libel suit.  It is a costly and disagreeable mode of procedure, but still the courts are open to the Senator-elect if he chooses to seek redress therein.”7


White Replies to the Charges.


On Sunday, July 27, 1890, the Times-Democrat published a full page of statements from Senator-elect White and his associates, giving their version and reply.  They did not deny the fact of the $10,000 contribution, but stated that it was spent for legitimate political purposes.  In a signed personal statement, White wrote that if he could have stooped to the use of corrupt means, his and his family’s personal resources were enough, but that he did not corrupt a single vote and his total expenses were just about $1,000, nearly half of which was disbursed in the cost of an entertainment and reception given to the members of the entire Democratic caucus after the nomination had been made.

In the same issue in which these replies were published, the Times-Democrat contained an editorial saying that White admitted the charge of receiving the Lottery Company’s money, and disbursing it as treasurer of the Committee, and subsequently as chairman of the finance committee.

“. . . The Senator-elect says,” continued the editorial, “ that no money was given him to elect him to the Senate.  Did not every dollar he received from the Lottery Company and spent to help elect the legislative nominees help directly to elect him to the Senate ?  Was he not working to that end all through the campaign ?

“ But we charged that the Senator-elect received money from the Lottery Company, or its chief representative, to assist him in his personal canvass.  The Senator denies it.  We reaffirm the charge.  Will he, on second thought, deny that a certain sum of money, ten thousand dollars or more, was deposited with a mutual friend who disbursed it upon his personal orders ?  Will he dare deny the existence of these orders ?  We reaffirm the charge, and we challenge the Senator-elect to bring us into court, where he and our witnesses will be upon their oaths.”

Again on July 3I, 1890, the Times-Democrat editorially “ declares with added emphasis that Senator-elect White did receive from the Lottery Company’s chief large sums of money with which to conduct his personal canvass ;  that he did use that money for that purpose, and that we can prove that fact in a court of justice where we can place the Senator-elect on the stand under oath and confront him with our witnesses.

“ We realize the gravity of the charge, and offer the Senator-elect an opportunity to forever set the matter at rest.  Will he accept it, or does he fear to meet the consequences of a suit for libel against this paper ?  We are prepared, if necessary, to give in advance good and solvent bond for any damages the Senator-elect may be awarded by a jury.”


Obvious Motive for the Attacks.


We have given with equal consideration both the reiterated charge and the reply, allowing the reader to form his or her own conclusions.  So far as is ascertainable Senator White did not accommodate the repeated desire of his accusers with a suit in court.  What the motive was underlying the attack was never established in court — whether it was sincere indignation or an outgrowth of political rivalries or an attempt at reprisal by enemies.  But all the available evidence goes to prove that the Louisiana Lottery Company was seeking to retaliate upon White because of his public opposition to it during the legislative fights.  Arraying himself prominently with the anti-lottery forces, White was elected on the crest of the wave of public indignation which swept the State, demanding the suppression of the lottery.  It was certain that the publication of the charge put White into an extremely uncomfortable, if not embarrassing, position.

The contest in Congress between the sugar refiners and the sugar-cane and beet planters was finally compromised, in 1890, by the passage of a bounty act for the benefit of the planters.  White had not yet entered the Senate when this measure was passed.  Under this act the sugar-cane and sugar-beet planters were to receive from $7,000,000 to $10,000,000 in bounties a year from the Government.

In 1894, however, a new tariff measure, called the “ Wilson Bill ” was introduced in Congress.  Cleveland’s Democratic administration was now in power, and the majority in Congress were Democrats.  When this bill came before the Senate one of the bitterly contested points was whether the sugar bounty should or should not be continued.  The sugar-cane planters were extraordinarily active, and not less so the representatives of the Sugar Trust which seemed now to be working in harmony with the planters.  The beneficiaries of the bounty act were largely the Louisiana sugar-cane growers.


Contest over the Sugar Schedule.


On February 1, 1894, during the debates, Senator Allison, of Iowa, severely denounced the sugar bounty act, and inquired of Senator White whether that payment was not a wasteful and extravagant expenditure of public money.  Senator White answered so evasively that Allison sharply said, “ That was not the question I asked.”  He again put the direct question.  White replied lamely, saying that he couldn’t separate the tariff and the bounty questions ;  that they were one and the same.  He nevertheless admitted that the bounty provision was “ a wrong against the revenue system of the Government.”8  Senator Harris, of Tennessee, then said that he regarded the sugar bounty from the beginning “ as an outrage and a wrong. . . . I am for a tariff for revenue, but I am not for a tariff to protect or benefit any particular class or any particular persons.”9  This was a deep thrust inasmuch as the sequel revealed that White was himself a considerable beneficiary of the bounty act.

President Cleveland had successively nominated William B. Hornblower and Wheeler H. Peckham to fill a vacancy on the bench of the Supreme Court of the United States.  Both, as we have previously related, were conspicuous corporation lawyers ;  and of Peckham’s advocacy of corporate interests we have more to say in the next chapter.  But belonging, as Hornblower and Peckham did, to a wing of the Democratic Party in New York State opposed to Senator David B. Hill, that politician made their nominations a personal fight, and succeeded in squelching each in turn.

These nominations having been thus defeated, Cleveland was forced into the position of nominating someone whom the Senate was likely to confirm.


White Withholds His Resignation.


On February 19, 1894, Cleveland nominated White as an Associate Justice of the Supreme Court of the United States.  The fact that White, instead of resigning his seat in the Senate immediately, remained there during the sugar-provision contest, aroused caustic criticism.  Leading Democratic newspapers commented sharply upon his retaining his seat during the very time that legislation was being put through for the further enrichment of the sugar-cane planters.  Thus, the New York World, the foremost and most influential advocate of Cleveland’s reŽlection in 1892, editorially denounced Senator White’s conduct as “ a disgraceful spectacle,” and further declared that White was unfit to be a Justice of the Supreme Court of the United States.10  Other newspapers published similar opinions.  In fact, Senator White did not resign his seat in the United States Senate until March 8, 1894.


The Safety Appliance Act.


But while thus criticizing Senator White, the newspapers in question, it may be parenthetically remarked, refrained from giving him the great credit he deserved for his extremely good and able work in the Senate, in 1893, in so amending the Safety Appliance Act that it operated to the advantage of the workers in personal injury cases.

The railroad magnates had so trickily framed the bill that while the injured worker would have been relieved from the charge of contributory negligence, the courts could have held that he had assumed the risk.  Senator White had never been a railroad attorney.  But he was a good lawyer.  He exposed the shallowness of the clause as it originally stood, and amended it by striking out the words “ shall not be deemed guilty of contributory negligence,” and by substituting “ shall not be deemed thereby to have assumed the risk thereby occasioned.”  His excellent amendment was finally adopted.11

To return, however, to the tariff bill :

Successive great scandals had arisen over the manipulation of the tariff bill, especially the sugar clauses.  So numerous and insistent were the charges that Senators were buying and selling sugar-trust stock (the market value of which they could affect at will by their votes) that Peffer, a Populist Senator, moved for an investigation.  This resolution was voted down.  But the charges were made with renewed force ;  the Senate finally, upon motion of Lodge, then in the “ reformer ” stage of his career, virtuously decided to appoint an investigating committee.


Investigation of Sugar-Stock Jobbing.


Now ensued an edifying situation.  Witnesses conveniently “ disappeared ” or “ refused to appear.”  H.O. Havemeyer, the head of the Sugar Trust, actually whistled at the committee, and laughed at its proceedings.  There was loud talk of bringing contempt proceedings against him, but it was merely vapor ;  no one believed that the committee was disappointed at not getting evidence incriminating Senators personally. Havemeyer was cynically willing to give general testimony, but point blank refused to be specific as to individuals.

When asked if he contributed to State campaign funds, he genially replied :  “. . . We always do that. . . . In the State of New York when the Democratic majority is between 40,000 and 50,000, we throw it their way.  In the State of Massachusetts, when the Republican party is doubtful, they have the call.  Wherever there is a dominant party, wherever the majority is very large, that is the party that gets the contribution, because that is the party that controls local matters.”12  This was the same Havemeyer who as the head of the Sugar Trust cheated the Government later out of enormous sums in custom-house frauds.  These sums ran into the tens of millions of dollars, and when the frauds were discovered, Havemeyer was so thoroughly frightened that his death, in December, 1907, soon followed.  The Sugar Trust was (to repeat) compelled to pay as restitution to the Government more than $2,000,000, but this was only a slight disgorging of the immense total of plunder.13


What the Reports Showed.


Considering this subsequent, proved fraud and corruption carried on by the Sugar Trust, it is altogether likely that the charges of corruption made against it in 1894 were far from being ill-founded.

The Democratic majority report of the Senate Investigating Committee was of a “ whitewashing ” nature, inculpating nobody.  But the Republican minority report of Senator Lodge showed that the Sugar Trust magnates — Havemeyer, Searles and others — had “ addressed their arguments ” principally to Senator Gorman and other Democratic Senators.  Allowance should be made for the partisan character of both reports.  “ It appears,” said the Lodge report, “ by the testimony of Senator Vest, that Senator Brice, of Ohio, Senator Smith, of New Jersey, Senator Hill, of New York, and Senators White and Caffery, of Louisiana, after said conference [a Democratic caucus] came to the rooms of the finance committee in regard to the sugar schedule.  Senator Vest testified that Senator Gorman urged a duty of forty per cent. ad valorem, and one-fourth of a cent a pound differential in favor of refined sugars as the proper schedule.”

Gorman’s purpose thus was to double the tariff schedule on sugar.  Instead of the $20,000,000 gift a year to the Sugar Trust which the one-eighth of a cent a pound schedule would present to the Sugar Trust, Gorman sought to make the schedule one-fourth of a cent a pound, thus giving the Sugar Trust a donation of $40,000,000 annually.  At this point Senators White and Caffery interfered, and prevented Gorman’s complete plan from succeeding ;  White and Caffery were evidently not susceptible to the arguments of the Sugar Trust, like Gorman, Brice and others.  The Sugar Trust, however, obtained a high enough tariff.  As for the sugar-cane and beet growers, they eventually received their equivalent.  The bounty act, repealed in 1894, was restored in 1895.

The Sugar Trust had already planned to control the large cane and beet-sugar producing interests.  By the year 1904 it had carried the process to the point where it had acquired, controlled or dominated fifty-five corporations, and held control of from seventy to ninety per cent. of the industry, including raw and refined sugar-cane and beet production.14  In its voluminous suit filed against the Sugar Trust, on November 28, 1910, the Government charged, among many other allegations, that the American Sugar-Refining Company (the Sugar Trust) held stock in, or control over, various cane-sugar and beet companies.

Explaining this development, we can now revert to what further happened in 1894-1895.


White as a Sugar Bounty Beneficiary.


On March 1, 1894 the United States Senate adopted a resolution calling upon Carlisle, Secretary of the Treasury, for a statement showing the names of individuals, firms and corporations who had received gratuities under the sugar bounty act.  Carlisle sent in a specific report giving the requested statement, which report did not cover all the years from 1890 ;  it dealt only with the fiscal year 1892-1893, and part of the fiscal year up to March 1, 1894.  This report showed that of the total of about $10,000,000 a year being paid by the Government in sugar bounties, the Louisiana sugar planters were receiving $8,500,000 a year.15  The itemized list of beneficiaries revealed that Senator Edward D. White had received $31,367.06 in bounties from the Government for the fiscal year 1892-1893, and $18,186.86 for a part of the fiscal year up to March 1, 1894.  16

The Government challenged the constitutionality of the sugar bounty act ;  it undoubtedly could be construed as being legislation for a favored class.  When the Government refused to continue bounty payments under the act, the sugar-cane growers brought two test suits.  One case was that of Realty Company, the other that of Gay, against the United States.  The lower courts decided against the Government which now appealed to the Supreme Court of the United States.


Sugar Bounty Act Upheld.


The decision of this court was handed down on May 25, 1896.  Justice Peckham wrote the court’s decision ;  there was not a single dissenting opinion.  Before giving this decision we will remind the reader that only the year before — on January 21, 1895 — the Supreme Court of the United States had declared the Sugar Trust not to be a criminal combination, and on May 27, 1895, it had, on an entirely extraneous point, affirmed the sentence of Eugene V. Debs to six months in jail.

In the sugar bounty cases the decision brought out the fact that the act of 1890 was to run for fifteen years ;  that under it the Government had already paid out tens of millions of dollars in bounties, and that the question of its constitutionality was not raised by the Government until 1895.

The decision was wholly in favor of the sugar-cane and beet planters upon two main grounds — one, that the planters had acquired a vested right in legislation, the other ground that this right was intrenched by the doctrine of acquiescence.  Let us, however, quote Justice Peckham’s exact language.

“. . . Under that act and during its existence,” he wrote, “ large sums of money were paid to sugar manufacturers as a bounty, and all manufacturers continued to manufacture in reliance upon its provisions.  During those years no officer of the Government questioned the validity, of the act, and the bounties under it were paid without objection or any hint that objection would thereafter be taken while the law was in force.  This condition continued for about three years.”


Its Unconstitutionality “ Immaterial.”


Peckham went on :

“ In our opinion it is not correct to say that no moral, equitable or honorable obligation can attach in favor of persons situated as were the defendants here, when the act of 1895 was passed.  We think obligations of that nature may arise out of such circumstances.”  Then followed this remarkable doctrine :  “ We regard the question of the unconstitutionality of the bounty provisions of the act of 1890 as entirely immaterial to the discussion here.  These parties did not at the time (when manufacturing under its provisions) know that it was unconstitutional.17

“. . . But it is said that if an act be unconstitutional the law imputes to these parties at all times a knowledge of its invalidity, and that it is not rendered valid by acquiescence in its provisions for any length of time even by officers of the government holding the highest places therein and who are charged with its execution and believe in its validity. . . .”  Peckham went on to say that in such a case as this, knowledge of its unconstitutionality could not be imputed to the beneficiaries.  “ These parties cannot be held bound, upon the question of equitable or moral consideration, to know what no one else actually knew, prior to the determination by some judicial tribunal, that the law was unconstitutional.”  The beneficiaries had arranged their business affairs in expectation of receiving the bounties and, therefore, “ We are of the opinion that the parties situated as were the plaintiffs in these actions, acquired claims of an equitable, moral and honorary nature.18


A Classic Example.


If anyone be disposed to look for a classic example of class decisions, this case will abundantly suffice.

It is to be noted that the trifling question of constitutionality of an act was “ entirely immaterial.”  The principal attorney for the sugar-cane growers was Joseph H. Choate, the same who for a large fee successfully argued at that very time that the income tax was unconstitutional.  The Justice writing the decision was, as we have said, Peckham, who later wrote the decision (which we have previously described) declaring that a New York law decreeing shorter hours for bakeshop workers was unconstitutional.  The people at large and the working class in particular had, it was clear to the Supreme Court, no vested right in legislation for their benefit ;  they acquired no claims of “ an equitable, moral and honorary nature ” in legislation.  But capitalists draining the Government treasury of tens of millions of dollars unquestionably had those claims, according to the exalted Supreme Court.  On the question of labor legislation, the issue of unconstitutionality was very material ;  on that of capitalist interests, it was “ entirely immaterial.”

One of the capitalists profiting from that sugar bounty was, as we have seen, Edward D. White, an Associate Justice of the Supreme Court of the United States at the time the decision was given.  But Justice White, in nowise disposed to violate the law forbidding judges from sitting in their own causes, scrupulously refrained from taking any part in these cases, as is evidenced by the following note on the records, “ Mr. Justice White did not sit in nor take any part in the decision of these cases.”19

Of Justice White’s stand in decisions affecting various questions during the years he was an Associate Justice sufficient details have already been given in previous chapters.

We shall now take up the careers of various men appointed by Taft as Associate Justices.


Justice Lurton’s Career.


The first of these was Horace H. Lurton.  He was sixty-five years old at the time of his appointment.  Admitted to the bar in Tennessee, in 1867, Lurton at once became a corporation attorney.  The court records show that as early as 1870, when he was the age of twenty-six years, Lurton was an attorney for the Louisville and Nashville Railroad.20  It may be explained that the Louisville and Nashville Railroad has controlled politics in its territory almost as absolutely as the New York, New Haven and Hartford in Connecticut, the Boston and Maine in New England or the Southern Pacific in California.  Lurton continued in practice until appointed a State Chancellor in 1875 in which judicial office he served three years.

In 1878 he resumed law practice as a member of the firm of Baxter, Lurton and Quarles.  The Baxters had for many years represented the East Tennessee and Virginia Railroad, the Western Atlantic Railroad and other railroad systems.21  The firm of Baxter, Lurton and Quarles were attorneys for the Louisville and Nashville Railroad ;  considering Lurton’s later decisions, when a United States Circuit Court judge regarding damages for injuries, it is worth noting that one suit that the firm defended upon appeal for the Louisville and Nashville Railroad in December, 1878, was an action brought by a wagon driver for injuries .22  At the same time Lurton was interested in banking matters.

In 1884 Lurton became a member of the firm of Smith and Lurton.  The firm had previously been that of Smith and Allison.  Ed. Baxter and Smith and Allison had frequently appeared for the Louisville and Nashville Railroad.23  John and W.M. Baxter were also attorneys for the Union Consolidated Mining Company 24 and some of the Baxters were financially interested in Tennessee coal mines.

Lurton, in 1886, was elected a judge of the Supreme Court of the State of Tennessee.  The by no means unusual situation was now seen of a former railroad attorney deciding cases involving the interests of that same railroad.  If antecedents of this character had been regarded as a positive disqualification, few judges would have been able to sit in judgment ;  the courts everywhere were full of judges who had been former railroad attorneys.


The Lahr Case.


One of the cases decided by Judge Lurton was the suit of J.M. Lahr against the Louisville and Nashville Railroad.  A carpenter employed by the railroad company, Lahr was working on a high railroad trestle.  On the day on which be was injured, Lahr asked his foreman, Ligar, if the rope used for descending purposes was all right.  The foreman said “ Yes.”  As a matter of fact, the rope was not fastened but was lying in a loose coil on the top of the bridge.  When Lahr took hold of it to descend he was thrown forty feet to the ground, and a number of his bones were crushed.  He brought suit for damages, and obtained a judgment in the lower courts.

When the case came up on appeal, Judge Lurton, on February 4, 1888, reversed the judgment and remanded the case for a new trial.  This he did on the “ fellow servant ” doctrine.  The railway company, said Judge Lurton, was in no way responsible ;  the fault was the foreman’s, and the foreman was simply a fellow servant of Lahr.  “ The absence of sufficient proof,” Judge Lurton said, “ that any duty rested upon Ligar to see to the means of descent used by his fellow workmen, and the fact that Lahr did not notify Ligar of his purpose to descend, and that the proof clearly established the fact that he was acting under no immediate orders from Ligar in attempting to descend, makes the case one of mere personal negligence of Lahr for which the master is not responsible.  In other words, they were fellow servants.”25

The irony of this decision lay in the fact that if Lahr had not kept to his work — which consisted in going up and down the bridge — he would have been discharged.  That was a part of his work, and every reasonable construction of law required the company, through the foreman, to see that he had safe appliances.


“ Pauper Oath ” Recommended.


Another such case decided by Judge Lurton (on February 17, 1891) was that of Smith against the Louisville and Nashville Railroad.  The action was one for damages for the death of a parent killed on the railroad.  But the son was very poor, and could not give bond for the costs of the suit.  The lower court, therefore, would not allow him to sue.  He applied for a writ of error, and the motion came before Judge Lurton who held that no suit could be brought where there were no assets to bear the expense of the suit.  When dismissing the case, Judge Lurton with a fine delicacy added :  “ There seems to have been no point made upon the right of the administrator to prosecute the appeal under pauper oath.  The point ought to have been made, but was not ;  it was, therefore, not decided.”26

In literal law, Lurton was doubtless right, but this case ranks as an instructive illustration of the conscientious precision with which the courts construe capitalist law against the workers.  In the previous case, that of Lahr, Lurton applied the most “ liberal construction ” of law in deciding in favor of the railroad corporation.  In this case the last letter and dot of law was construed with granite inflexibility against a destitute worker.  The railroad had killed his parent, and because of this he was left penniless ;  he was then debarred from suing for damages since “ he had no assets to bear the expense of the suit.”  Here was another illustration of the sad enough fact that poverty was not merely a crime ;  it was a catastrophe.


Slaughter of the Workers.


Judge Lurton, like other judges, could not or did not care to see the ravaged, broken-up homes of the workers, desolated by premature and clearly preventable death, and the appalling misery following the slaughter of the toilers upon whom the maintenance of those homes depended.

The annual carnage of the workers on railroads and in factories and mines was truly dreadful, and more destructive than the most sanguinary wars mankind has known.  If anything, working conditions, thanks to the insistence of the workers, were a shade better in 1908 than in previous decades.  But still they were so abominable that between 30,000 and 35,000 adult wage workers were slain every year, and not less than 2,000,000 workers were annually injured.  This estimate, a conservative one as the Federal report expressly says, took no account of women and child workers.27  Nor did it include the vast number of disabilities, diseases and deaths indirectly caused by the processes of capitalist industry.

Intrenching themselves behind their law books, the judges professed not to see these frightful and hideous conditions ;  and they insisted that their sole function was to construe law as they found it.  A plausible enough defense, if it had not happened that as attorneys nearly all of them had represented railroad and other corporations which had savagely fought every attempt of the workers to better their conditions, and which regarded the immolation of men, women and children as of no consequence so long as it did not interfere with the flow of profits.

The foregoing are examples of cases decided by Judge Lurton when on the Supreme Court of Tennessee.28  But Lurton did not invariably decide in favor of his former clients, the Louisville and Nashville Railroad.  In a minor case, Judge Lurton’s decision was adverse to that corporation.  But the evidence in this case was incontrovertible, and moreover the suit was not brought by a private person but by the State of Tennessee.  It involved the question of whether the railroad company could be fined $50 for obstructing a highway.  Lurton affirmed the judgment of the lower court.


Lurton Becomes a Circuit Judge.


In 1893, President Cleveland appointed Lurton a Judge of the United States Circuit Court, Sixth Circuit, embracing Ohio, Kentucky, Tennessee and adjacent territory.  On the Circuit Court at Cincinnati, Taft and Lurton were associated on the Bench, and became intimate friends.

Decisions favorable to corporations were constantly handed down.  One decision arousing much comment was that in the case of Hunter vs. the Kansas City and Missouri Railroad Company.  Hunter was a laborer engaged to set up poles along the company’s lines.  The boss, Bob Snowdon, slipped while the pole was being placed in a hole, the pole fell and knocked down Hunter, seriously injuring him.  Judge Lurton decided (February 8, 1898,) that Snowdon had slipped because the work had to be done in a slippery place, and that there was no evidence that Snowdon was at fault ;  he “ slipped because of the slippery character of the ground.”29

James M. Hennessy was the foreman of a switching crew in the Chesapeake and Ohio Railroad Company’s yards at Russell, Kentucky.  While coupling cars, he was severely injured.  He sued, and was awarded damages in the lower courts.

The railroad company appealed.  This appeal came up before Circuit Judges Taft and Lurton and, District Judge Clark on October 3, 1899.  Lurton wrote the Court’s decision, twisting Taft’s decision in a previous case so as to cover this case.  The United States safety-appliance law clearly provided that no railroad company should use cars with defective couplings.  This being so, Lurton’s findings were received with amazement.  Lurton wrote in his decision that Hennessy knew that the great majority of cars on the repair tracks were defective and that to get cars from the tracks was a part of Hennessy’s duty.  “Manifestly,” Judge Lurton continued, “ his duty involved the handling of cars not fitted for use, and dangers not incident to the ordinary work of one engaged in the ordinary operation of trains of cars.”  In such a case, Lurton declared, a man voluntarily assumed risk.  Lurton reversed the judgment of the lower court.30


Constitutional Right to be Killed.


Here was seen the beautiful finesse of court decisions.


If the railroad workers had gone on strike against having to handle unsafe cars (which cars the law prohibited) troops would probably have been ordered out against them.  Every capitalist newspaper would have distorted and denounced the purposes of the strike.  If all railroad workers had declined to risk mangling and death by handling such cars, the railroads could not have been operated ;  bondholders and stockholders do not operate railroads.  In such a case scabs and thugs would have been imported to break the strike.

By consenting to take unsafe jobs and handling obsolete cars the workers were doing an immense, although unappreciated, favor to the railroad corporations, which in order to increase their profits, were ready at all times to avoid going to expense in equipping cars with safety appliances.  But Judge Lurton steps in and lays down the wonderful doctrine that a worker has the perfect right to be mangled or killed.  The constitutionality of this right has never yet been questioned by those who have evinced such solicitude that the Constitution should not be violated.

Of this “ constitutional right ” of the workers to get killed, Judge Lurton was one of the most conspicuous exponents.  There was the case of John T. Hazlerigg, whose arm was crushed while coupling cars on the Norfolk and Western Railroad at Williamson, Virginia.  Hazlerigg was taken to the railroad’s hospital where his arm was amputated, and where he remained five or six weeks.  During the worst period of his suffering, an agent of the railroad generously persuaded him to sign an absolute release for all damage claims in consideration of giving him $25 in cash, a pass over the railroad and $2.75 for further transportation.

When Hazlerigg left the hospital he realized how for a wretched $27.75 paid for the loss of an arm, the railroad company had wheedled him into signing a release.  He brought suit.  When he had signed the paper, he testified, he was destitute of money, had no job and no suitable clothing, and was worn down by suffering and by a malady which affected his mind.  He did not read the paper, he stated, and did not know what he was doing when he signed it.

The jury in the lower court awarded Hazlerigg damages, but when the railroad appealed, Judge Lurton set aside the judgment, on the ground that “ there was no evidence to support Hazlerigg’s statements,” and that the jury should have been told that Hazlerigg was possibly guilty of “ contributory negligence.”

Judge Lurton stanchly defended the right of Hazlerigg “ to quit his job ”;  to Lurton this was a precious privilege of which no worker should be deprived (when, of course, he did it “ individually ” and not in mass).  But if the worker, compelled to remain at his perilous duty by want, did not quit but was forced by the same stern necessity to disregard the dangerous condition of the cars, then he became guilty of contributory negligence,” “ voluntary assumption of risk,” a “ fellow servant ” accomplice and other theoretical offenses, all devised for the special fine-spun purpose of relieving capitalists from the necessity of paying damages to mangled workers who had produced their profits.

This was the species of “ law ” inflicted on the working class, especially upon its most helpless members ;  and being so, it is not astonishing that the workers should have regarded “ law ” as a terrific and cruel instrument of tyranny.


The Delk Case.


But perhaps the decision in the case of E.M. Delk was the most flagrant of all of Judge Lurton’s decisions.

Delk was a switchman on the St. Louis and San Francisco Railroad ;  he was thirty years old in 1906, had been working on railroads since he was a lad, was receiving $80 a month pay, was married and had a child.

On October 4, 1906, while Delk was switching certain cars out of a string of nine freight cars at Memphis, a car with a defective coupler broke loose.  Delk’s foot was cruelly mashed.  Delk brought suit and was awarded $7,500 damages by a jury.  But the trial judge compelled him to remit $2,500 of this amount or be forced to go through a new trial ;  this deduction reduced the judgment to $5,000.  We shall now further quote one of Delk’s attorneys, T.F. Kelly of Memphis :

“ Delk is a man of meager education and knows nothing except railroading having been in the railroad service about sixteen years.

“ He was blacklisted by the railroad companies of Memphis after he brought suit, and none of them would give him a job because he had entered suit against one of the roads.  Of course he could not pass an examination under the rigid rules now in force, as he has only one good foot.”

The railroad company appealed from the judgment of the lower court in favor of Delk.  The appeal came before Judges Lurton, Severans and Richards in the United States Circuit Court of Appeals, on March 3, 1908.


An Amazing Decision.


Lurton and Severans each wrote opinions in favor of the company, reversing the lower court’s judgment.  They said that it seemed unjust and unreasonable to say that leaving fulfilled its utmost duty the railroad company should be held responsible for conditions which might occur without its fault.  Judge Richards handed down an indignant dissenting minority opinion, concluding thus :  “ A car loaded and being used in interstate traffic was found with a defective coupler.  The car was marked ‘ In Bad Order,’ and a repair piece sent for.  After thus being notified of its condition, the car should have been withdrawn ;  but it was not, and the company kept moving it about in connection with other cars, and finally ordered the injured employť to couple it to another car.  This he tried to do, with the natural result, and he was crippled for life.  The case amply justifies the verdict and the judgment should be affirmed.”31

The decision of Lurton and Severans caused the utmost astonishment among non-corporation lawyers.  Such was the amazement over the decision in the Delk case that the Supreme Court of the United States, shortly after, took particular pains to disapprove of it in strong language, although the Delk case was not then before it.  In deciding the parallel case of the St. Louis and Iron Mountain Railway Co. vs. Taylor, Justice Moody in writing the Court’s opinion referred to the Delk decision and wrote :

“ In deciding the questions thus raised upon which courts have differed (St. Louis & S.F. Railroad vs. Delk, 158 Fed. Rep., 931 ), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employť reasonably safe tools, machinery and appliances, or to consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. . . . The Congress not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statutes.  We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described.  It is enacted that ‘ no cars, either loaded or unloaded, shall be used in interstate commerce traffic which do not comply with the standard.’

“ There is no escape from the meaning employed to confuse them or lessen their significance. . . . If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibition of the law, and there arises from that violation the liability to make compensation to one who is injured by it.”32

After the Supreme Court of the United States had expressed this sharp opinion, Delk’s attorney on June 27, 1908, made a motion in the Circuit Court of Appeals that the case be reheard, but Judge Lurton and Severans curtly refused without stating any reason.  Judge Richards again indignantly dissented from their stand.  Delk’s lawyer then appealed the case to the Supreme Court of the United States.

The crippling of Delk happened, as we said, on October 4, 1906.  More than four years had passed, and Delk had not been able to collect a single cent in damages.  For nearly a year and a half after the accident, Delk had been unable to do any work whatever.  Blacklisting then followed.  Finally he obtained a job as crossing flagman at a salary of about $35 a month, on which he had to support himself and family.  Although he did not lose his foot entirely, yet we are informed he would have been far better off without that mangled remnant ;  so badly was the foot crushed that it keeps him in continual pain, and may yet possibly result in his death.


Supreme Court Reverses the Decision.


Delk’s attorney, T.F. Kelly, appealed from Lurton and Severans’ decision to the Supreme Court of the United States.  When this appeal was heard in 1911, Justice Lurton was a member of that Court, but he did not participate in the decisions.  The railroad company fought the appeal stubbornly, and was represented by many attorneys from different parts of the country.  But the facts and the law were too strong for them.  By an unanimous decision the Supreme Court of the United States reversed the Circuit Court of Appeals decision of Judges Lurton and Severans, and affirmed the verdict of the trial court in favor of Delk.

The corporation contesting so many similar cases was (to repeat) the Louisville and Nashville Railroad.  This was the identical corporation which was the prime mover in having various labor laws declared unconstitutional.  These were laws such as the twenty-eight hour law, the employers’ liability law and other measures that after many years of agitation labor organizations had succeeded in getting passed, only to find them thrown out by the courts.  The case of Adair vs. the United States (described in a previous chapter) in which the Supreme Court of the United States declared it to be legal for a corporation to blacklist an employť (while other decisions held that it was illegal for a labor organization to boycott an employer) was instigated by the Louisville and Nashville Railroad.


A Decision Pleasing to Harriman.


Judge Lurton’s decisions were uniformly favorable to big corporations.33  A particularly noted example was in the case of Talbot J. Taylor, representing the interests of James J. Keene, a Wall Street “bear” operator.  This, it is true, was only a contest of capitalist groups, and Lurton’s decision would nominally deserve no serious criticism were it not that when deciding against maimed and mangled wage workers, he contended that he was only construing law.  Taylor, in 1903, brought an action to restrain the magnate Harriman from voting $90,000,000 of stock held by the Union Pacific Railroad.  The Keene group held $30,000,000 of Southern Pacific stock, and if the Union Pacific’s $90,000,000 of Southern Pacific stock had been tied up by injunction, Keene’s $30,000,000 of stock would have controlled the annual meeting of the Southern Pacific.

Judge Lurton finally decided that the combination of the two Pacific railroads in issue was not a violation of the Sherman anti-Trust Act.  This notwithstanding the fact that the Supreme Court of the United States only a short time previously had decided that a merger of the Great Northern Railroad and the Northern Pacific Railroad was illegal and had ordered it dissolved.

Following this decision in favor of Harriman, came those stupendous stockjobbing frauds, some of which we have already, in a previous chapter, cited from the Interstate Commerce Commission’s report, and largely by means of which Harriman, after beginning his career with nothing, acquired an immense fraudulent fortune.34


Harriman’s Great Frauds.


The story of these vast frauds is so extensive that it cannot even be summarized here.  Every new output in watered stock was followed by a new taxation of the workers in the form of increased freight rates, which, of course, added enormously to the cost of living.  At the same time wages remained generally stationary, or were reduced.  When Harriman died his estate was at first appraised at $149,000,000, but on later examination was found to be much more.

During the perpetration of his stockjobbing frauds, Harriman was the head of an immense system of corruption.  In a statement published on January 2, 1908, Francis J. Heney, who had closely prosecuted political corruptionists on the Pacific coast, declared that not W.F. Herrin but Harriman was the real power in the corruption of officials.  “ According to my deduction,” said Heney, “ the head of the legal department of the Union Pacific Railroad, W.F. Herrin, was the boss behind the apparent boss [Ruef, the political boss of San Francisco].  But I am convinced that Herron was, after all, the tool of the actual boss, Harriman.”  We have also seen how, in his historic letter to Sidney Webster, Harriman alleged how after being summoned to the White House by President Roosevelt in the closing days of the 1904 campaign, when Roosevelt was running for reŽlection, he (Harriman) returned to New York to raise a campaign fund of $260,000 by which “ at least 50,000 votes were turned in the city of New York, making a difference of 100,000 votes in the general result.”35  Harriman’s personal contribution to this fund was $50,000.


Did Lurton Use Private Cars ?


During the years preceding the passage of the Hepburn Act of 1906 which prohibited traveling on free railroad passes, Judge Lurton acquired the singular name of “ Private-Car Lurton.”  Whence the significance ?  It was repeatedly charged in the newspapers, and not denied, that Lurton was one of the Federal judges traveling extensively in sumptuous private cars supplied by the railroads.  The allegation was also frequently published that at one time a receivership action brought the question of the management of a certain railway before Judge Lurton.  According further to this allegation, Lurton indicated his desire for a private car and the receiver complied.  Necessarily there is no proof of this charge, or similar charges, in the formal records.  Therefore, we do not pretend to vouch for their authenticity, but simply relate them for what they may be worth, true or false.  But the report of Lurton’s habitual use of private cars caused so much comment that even the Memphis News-Scimitar, a newspaper friendly to Lurton, frequently published caustic remarks on Lurton’s alleged receipt of such favors from railroad corporations.36

“ He is a man of ability and forcefulness and the graduate of a shrewd school in politics,” commented this newspaper on one occasion.  “ During his career as a judge he has been much criticised for his leaning toward corporations litigant before him.  It has been urged against him that during his judgeship he has been the notable recipient of distinguished favors from corporations.  He has, for instance, been wont to travel during his vacations upon the private cars of various railroads of the country, with all available courtesies and privileges extended with lavish hand to himself and party.”

In a previous chapter we have described at some length the contest among different groups of great capitalists either to retain or secure control of the vast assets of the three principal life insurance companies of New York.  We have also given details, as disclosed by the investigation of the New York Legislative Committee, of the corruption enormities systematically carried on by those companies.

Through his partner, George W. Perkins,37 J. Pierpont Morgan, with his enormous ownership or control of railroad and steamship lines, banks and trusts of many kinds, had long been able to sway the great revenues of the New York Life Insurance Company.38  It may here be mentioned that one of the many railroads controlled by Morgan has been the Louisville and Nashville Railroad.39  Through his instrument Hyde, the freebooter Harriman partially controlled the Equitable Life Assurance Society ;  and the Standard Oil Company ruled the Mutual Life Insurance Company.  These and other vast plutocratic interests had used immense sums of the policy holders’ money to finance their trust and manipulating operations, not omitting to enter into “ side agreements ” by which fraudulent methods they pocketed large personal profits.  Starting in the Equitable Life Assurance Society, these capitalist groups began to fight one another for control of the booty ;  and Thomas F. Ryan, who needed the insurance funds to finance his rubber and other trusts, hastened forward to take a hand in the fray and see if he could not gobble one, and perhaps two, of the big insurance companies.


The Contest for Control.


What the actual result was is told in the next chapter.  Here it is only necessary to deal with the contest for the possession of the New York Life Insurance Company.  An “ International Policyholders’ Committee ” was formed to oust the particular capitalists in control of the New York and the Mutual Life Insurance Companies.  The slogan of this committee was that the investigation has shown the “ ins ” to be thoroughly corrupt, and a salutary “ purifying process ” was required.  Who it was that supplied the great sum — said to have been at least $250,000 — that the committee expended in its campaign, was never disclosed.  The name of Thomas F. Ryan was confidentially mentioned, but there is no available proof that he was the individual.40

In voting for the trustees of the New York Life Insurance Company each policy holder has a right to vote.  How this provision was long fraudulently evaded we have previously described in the case of the Mutual Life Insurance Company.  Of the immense number of policy holders throughout the world, obviously only a few can vote in person.  Each of the groups contending for control of the New York Life Insurance Company put up a trustee ticket, and the contest narrowed to a question as to which could secure the most proxies.


Lurton on the Proxy Committee.


One of the men whose name was brought forward as a candidate for trustee on the Morgan “ administration ticket ” was Judge Horace H. Lurton.  The fact that a judge of the United States Circuit Court was thus openly acting as an agent in this contest caused no inconsiderable scandal.  It was regarded as politic to withdraw Lurton’s name from the trustee ticket.  He was then placed on a committee of three, composed of himself, Rowland G. Hazard and Alba J. Johnson, to solicit and handle proxies for the New York Life Insurance Company election.41  The “ administration ” trustee ticket was composed largely of such capitalists or dependents of big capitalists, as Thomas P. Fowler, president of the New York, Ontario and Western Railroad ;  Clarence H. Mackay, president of the Commercial Cable Company ;  Seth M. Milliken, extensive woolen manufacturer and director in many banks ;  John G. Milburn, corporation lawyer ;  Alexander E. Orr, General Louis Wagner, John Reid, Augustus G. Paine and others — twenty in all.

Judge Lurton’s serving on the proxy committee aroused another scandal and much acidulous comment.  The election for trustees of the New York Life Insurance Company was held at the company’s main office on December 16, 1906.  Confident that they had mustered a majority of the proxies, the “ International Policyholders’ Committee ” were astounded at what they now witnessed.  Judge Lurton had come on direct from the United States Circuit Court of Cincinnati to assist in voting 121,000 proxies which the agents of the company had secretly collected all over the world, and of the existence of which the “ International Policyholders’ Committee ” knew nothing.  These and other proxies were voted in by Hazard, Johnson and Lurton for the so-called Morgan ticket.  The 121,000 proxies had been stored in the New York Life Insurance Company’s building.  Almost as fast as they were brought into the voting room in wash-baskets, boxes, crates, bags, etc., Lurton and his two associates would take the bundles and vote them.42  It is needless to say that the “ administration ticket ” won.


Senator Foraker, Lurton’s Friend.


It can be authoritatively stated that corporation politicians urged President Roosevelt to appoint Lurton to the Supreme Court of the United States, but after inquiring into Judge Lurton’s record, Roosevelt refused.  When Taft succeeded Roosevelt, Lurton succeeded in having himself appointed, in 1909, to the seat made vacant by the death of Associate Justice Peckham.  His appointment called forth a storm of protests from labor unions and others.  There was considerable, but ineffective, opposition from the “ progressive ” United States Senators to the confirmation of his appointment.  Apart from Lurton’s having the friendship of Taft, his former colleague on the Bench, Lurton’s chief and most insistent pusher was, it was understood, Senator Joseph B. Foraker of Ohio who came to his rescue at the crucial moment.

Foraker was a noted Ohio politician and railroad lawyer.  So thoroughly did he control the Ohio Legislature at one time that it was known as the “ Foraker Legislature.”  He tried to give the street railways of the State a ninety-nine-years’ franchise with exemption from taxation, but public opposition frightened the politicians.  But immediately after the Ohio Legislature had elected him to the United States Senate, Foraker did push through that Legislature, in April, 1896, a bill authorizing a fifty-years’ franchise to various consolidating street railway lines in Cleveland and in Cincinnati.  Public uproar and adverse decisions of the lower courts availed nothing ;  the Legislature passed supplementary acts, and the higher court, known as the “ Foraker’s Court,” held the franchise to be valid in Cincinnati.  Foraker appeared in court as the attorney for the franchise interests ;  when the decision favoring them was given, the market value of Cincinnati traction stock went high, and the “ inside traction ring,” it was said, netted many millions of dollars.43  The value of the franchise for the Cincinnati Traction Company alone was estimated at $10,000,000.  Foraker’s son was long vice-president of the Cincinnati Traction Company, and his brother was its counsel.

Foraker was counsel for Morgan’s Southern Railway Company, and in 1896 sought to have the City of Cincinnati sell its holdings in the “ Queen and Crescent Railway ” to the Southern Railway Company for a comparatively paltry sum.  His proposition was rejected, and later (in 1905) Cincinnati leased the road for between $300,000 and $400,000 a year more than the interest on the terms that Foraker’s proposal would have yielded.  In the United States Senate, Foraker was notoriously pro-railroad.  Foraker’s direct connection with John D. Archbold, of the Standard Oil Company, was shown when, in 1908, authentic copies of Archbold’s letters were produced.  In one letter, dated December 11, 1900, Archbold sent Foraker a certificate of deposit of $5,000, and in another letter dated January 27, 1902, Archbold enclosed a draft for $50,000.  “ Your letter,” wrote Archbold, “ states the conditions correctly, and I trust the transaction will be successfully consummated.”  The exact nature of the transaction was not made clear.

Senator Foraker admitted the payments, saying that he had been employed by the Standard Oil Company as one of its counsel in Ohio, but denied that the payments had anything to do with legislation in Congress.  He also asserted that the $50,000 payment “ was a loan to a newspaper,” and averred that the money “ had been returned.”  Archbold’s letter also showed that for years United States Senator Joseph W. Bailey, of Texas, had been a retainer of the Standard Oil interests.

So Lurton went on the Supreme Court Bench :  an industrious but by no means learned lawyer, yet by his big boastful talk giving the impression that he was a giant in knowledge.  A small, stout, energetic man, very irritable and excitable, he at no time took pains to conceal his admiration and reverence for wealth and for the master capitalists.44




1 Even lawyers themselves often publicly denounced the complete subversion of law for the benefit of the capitalist magnates.  Thus, for example, Samuel Untermeyer, a conspicuous corporation attorney, declared in an interview on June is, 1909, that the Government had no trouble “ in convicting and driving out of business a few poor, struggling, comparatively harmless combinations which were put together to prevent bankruptcy and secure a small profit.  But the financial buccaneers who have been ‘holding up’ the country in the necessities of life . . . have remained immune, until every lawyer who has had to deal with this big question knows that the pretended ‘enforcement’ of the law is a huge farce.”  Untermeyer might have added with equal accuracy that while capitalists escaped, the harshest judgments were inflicted upon the working class, collectively and individually.

2 To give one illustration of many examples :  Judge Pryor testified before the “Mazet” New York Legislative Investigating Committee, in 1899, that he had been asked by a Tammany Hall emissary for $10,000 for his nomination for a vacant half-term in the New York State Supreme Court.  Other judicial candidates, it was understood, paid from $10,000 to $20,000 for nominations.

3 See, “ Proceedings in the Senate in the Matter of the Impeachment of Charles Swayne, Judge of the District Court of the U.S. for the Northern District of Florida,” Government Printing Office, 1905.

4 Statistics by John Moody.

5 “ Centralization and Community of Control in Industry,” etc.  Speech Delivered in the U.S. Senate, March 17-24 and March 27, 1908, p. 45.

6 Under the peculiar customs of Louisiana, he was elected to the United States Senate nearly three years before he entered that body.

7 This editorial is given precisely as originally published but with an unimportant part omitted.

8 Congressional Record, Fifty-third Congress, Second Session, Vol. XXVI: p. 1773.

9 Ibid.

10 Published March 6, 1894.  We shall give also an instance of criticism from a Republican newspaper—the New York Tribune—which, on February 20, 1894, charged that White had occupied himself mainly to defeat the Administration’s tariff bill, “ bulldozing the Finance Committee’s ‘steerers’ with the threat to vote against it unless a liberal measure of protection were guaranteed to the Louisiana sugar interests.”  And referring to White’s appointment as an Associate Justice of the Supreme Court of the United States the Tribune account continued :  “ It is whispered, indeed, that Mr. White’s appointment to-day may have been largely due to a feeling on the part of friends of the Wilson bill that its chance of passage might be improved if the senior senator were gotten out of the way, and some less active and influential advocate of the sugar interest should replace him on the Louisiana delegation in Congress.”  But, as we have said, White did not resign his seat until the following month.

11 The Congressional Record, Fifty-Second Congress, Second Session, Vol. 24, Part II : 1480-1481.

12 Senate Report No. 485, Fifty-third Congress, Second Session, June 21, 1894.  This testimony was simply a paraphrase of Jay Gould’s formula, as expressed in 1873 :  “ In a Republican district I was a Republican ;  in a Democratic district, a Democrat ;  in a doubtful district I was doubtful ;  but I was always for Erie.”

13 Said the Annual Report for 1909 (p. 12) of the U.S. Attorney-General :  “. . . The evidence in the suit above referred to revealed a long-continued system of defrauding the Government, of unparalleled depravity.”  The report further stated that in April, 1909, a compromise was made whereby the American Sugar Refining Company paid the Government a judgment of $134,411.03, and, in addition, the sum of $2,000,000 as restitution for custom-house frauds.  “ The evidence has disclosed a network of corruption extending over a period of years . . . . wrote the Attorney-General.  But the heads of the trust completely escaped punishment.

14 Moody’s “ Truth About The Trusts,” p. 67.  Moody states that its element of monopoly consisted principally of strong tariff bounties, control of raw material, etc.

15 Senate Executive Document No. 61, Fifty-third Congress, Second Session.

16 See page 15 of Ibid.

17 163 U.S. Reports, 437.  The italics are mine.—G.M.

18 Ibid., 439.  My italics.—G.M.

19 For the record of the cases in full, see, U.S. vs. Realty Company and U.S. vs. Gay, 163 U.S. Reports, 427-444.  According to the best information obtainable, Chief Justice White’s plantation is managed on more or less obsolete methods, and its machinery is more or less antiquated.

20 Tennessee Reports, Vol. 54: 254-261.

21 See, Heiskell’s Tenn. Reports, Vols. 1 to 12.

22 L. & N.R.R. vs. Gardner, I Lea (Tenn.) Reports, 688.

23 See, VIII Heiskell’s Reports, 735 ;  VIII Lea’s Reports, 439, etc., and XIV Lea’s Reports, 130, in which last-named action Baxter, Smith and Allison and John H. Henderson represented (1884) the Louisville and Nashville and Great Southern Railway.  See, also, XII Lea’s Reports, 574, in which Smith and Allison and Edward W. Baxter were attorneys for the Louisville and Nashville Railroad ;  XIV Lea’s Reports, 65, in which Smith and Allison appeared for the same railroad, and X Lea’s Reports, 58, in which John Allison, Jr., and W.M. Baxter represented the East Tennessee, Virginia and Georgia Railroad.  Also, XII Lea’s Reports, 35 and 47, giving W.M. Baxter’s appearance for the last-mentioned railroad.  The foregoing appearances were between the years 1881 and 1884.

24 V Lea’s Reports, 3.

25 See, Southwestern Reporter, Vol. VI : 663-665.

26 Southwestern Reporter, Vol. XV : p. 842.

27 See, Bulletin No. 78, Sept., 1908, U.S. Bureau of Labor.  The report explains that it would have been possible to save at least one-third or one-half of these lives by rational methods of factory inspection and control.

28 See, also, Louisville and Nashville Railroad vs. Mossman, XVI Southwestern Reporter, 64.  In the lower court Mossman had recovered damages for overflow of his lands caused by the railroad’s high embankment.  Judge Lurton reversed that decision on the ground that by long usage the railroad company had acquired by prescription the right to flow back the water upon the adjoining land.

29 85 Federal Reporter, 379.

30 96 Federal Reporter, 713.

31 158 Federal Reporter, 931.

32 210 U.S. Reports, 294.

33 See Case of L. & N.R.R. vs. Central Trust Co., 87 Federal Reports, 502, in which Lurton and Severans decided in favor of the railroad, and other cases.

34 Keene was conducting a manipulating campaign to get control of the Southern Pacific Railroad.  In detailing the secret circumstances the New York Times, issue of December 11, 1907, concluded :  “ There is little doubt that the refusal of Judge Lurton to make the temporary injunction permanent was a source of no small relief to Mr. Harriman and his associates, despite the precautions which they took to make the injunction nugatory, had it been granted.”

35 In a letter, dated December 15, 1911, to Theodore Roosevelt, George R. Sheldon, treasurer of the Republican National Committee, gave a different version of this affair.  Sheldon stated that it was Odell, Chairman of the Republican State Committee of New York, and not Roosevelt, who appealed to Harriman for aid through Cornelius N. Bliss, then Treasurer of the Republican National Committee, and that Harriman then raised $160,000 which with $80,000 raised by Bliss, was given directly to Odell.  When this letter was published, Odell declined to make any statement.

36 Other Federal judges were accused of the same.  On January 26, 1906, the Kansas City Times, related, in an obscure and perfunctory news item, that Gardiner Lathrop, general solicitor of the Santa Fe Railroad system, had taken a party of friends on a tarpoon fishing expedition to Mexico.  Among those availing themselves of this free excursion on the railroad’s cars were Judge John C. Pollock, U.S. District Judge for Kansas ;  Judge John F. Phillips, U.S. District Judge for the western district of Missouri, and Judge Smith McPherson, U.S. District Judge for the southern district of Iowa.  The judges did not deny taking the trip.
     At the time these Federal judges accepted these railroad favors the constitutionality of the railway freight and passenger rate reduction, as recently passed by the Missouri Legislature, was before the Federal Courts.  On June 14, 1905, the date when that law was to go into effect, Judges Phillips and McPherson later granted a temporary injunction against the enforcement of that law.  After the return of the party from the fishing trip, Judge McPherson arbitrarily enjoined the railroads from obeying the new passenger and freight rate law.  In a series of acts, Judge Phillips endorsed Judge McPherson’s action which was also subsequently affirmed by Judge Pollock.
     Representative Murphy, of Missouri, preferred charges in Congress against Judges Phillips and McPherson, and Representative Rucker of the same State declared that Judge Phillips should have been impeached twenty years previously.  But no impeachment proceedings were ever brought.

37 For a considerable time before becoming a partner of Morgan, Perkins was vice-president of the New York Life Insurance Company.

38 At the present writing it is estimated that the stupendous sum of $500,000,000 of money is deposited with the firm of J.P. Morgan and Company.  Morgan is a director of sixty-one corporations many of which, such as the Steel Trust, deposit their cash balances with his firm.  His financial power is inconceivably vast.  His banking firm is a purely private concern, and as such is not subject to the supervision of State, Government or any other authority.

39 Moody’s “ The Truth About The Trusts,” 434.

40 In its circular the “ International Policyholders’ Committee ” denounced as a falsehood the charge that it was a “ Ryan Committee.”  This committee called upon all policyholders to defeat the “ Present discredited managements,” and install men in their places “ who will now and forever separate these companies from Wall Street control.”

41 The author has a copy of the published “administration ticket” circular on which Lurton’s name duly appears ;  his occupation is there described as “Judge of the United States Circuit Court, 6th District.”  Hazard was a big manufacturing capitalist, and Johnson was a member of the firm of Burnham, Williams and Company, proprietor of the Baldwin Locomotive Works (now controlled by J.P. Morgan) in which plants the workers recently struck, although unsuccessfully, for better working conditions.

42 The International Policyholders’ Committee charged that many of these proxies were fraudulent and invalid.

43 It was charged that in addition to his stock profits, Foraker received a fee of $100,000.  This he denied, saying that he got only “ a present of $5,000 ” from an officer of the company.

44 When Lurton’s appointment was made, a leading member of the Nashville bar, John J. Vertrees, one of the most prominent attorneys for many years for the Louisville and Nashville Railroad, the Standard Oil Company and other corporations, and a personal friend of Lurton, said of Lurton :  “ In these days judges and lawyers are apt to be classified under two heads ;  those who place emphasis on property rights, and those who place the emphasis on personal rights.  To the former class belongs Judge Lurton.”
     At the time Ballinger, Secretary of the Interior under Taft, was under investigation by a House Committee in 1910, for having, according to various charges, been the instrument of the Morgan-Guggenheim syndicate in their designs upon the natural resources of Alaska, Taft selected Vertrees to defend Ballinger.  Subsequently Ballinger resigned.