Part 19

The opinion which Judge Taft wrote in this case is a long one. He quotes the provisions of the Interstate Commerce Act, which clearly made it a criminal offense for the officers, agents, or employees of any of these connecting roads wilfully to refuse to receive and transmit the freight of the Toledo Road, and declares that the attempt of the Locomotive Engineers to compel the railroads to commit this criminal offense through this Rule 12 was unlawful. As to the rule itself, he says, after an exhaustive examination of it in connection with the provisions of the Interstate Commerce Law:

We have thus considered with some care the criminal character of Rule 12 and its enforcement, not only, as will presently be seen, because it assists in determining the civil liabilities which grow out of them, but also because we wish to make it plain, if we can, to the intelligent and generally law-abiding men who compose the Brotherhood of Locomotive Engineers, as well as to their usually conservative chief officer, what we cannot believe they appreciate, that notwithstanding their perfect organization and their charitable, temperance and other elevated and useful purposes, the existence of Rule 12 under their organic law makes the Brotherhood a criminal conspiracy against the laws of their country.

The Brotherhood of Locomotive Engineers acquiesced in the criticism of this section of their laws and removed it. The fact that this organization is in existence to-day, unimpaired in power and authority throughout the American railroad world, is an indication of its willingness to recognize and obey the law of the land. Its conduct in subsequently withdrawing the rule shows that Judge Taft was justified in setting forth with such painstaking clearness the illegality of the rule, with the expectation that its illegality would be recognized and the rule abolished--a confidence which was justified by its results.

_Phelan Sentence in the Pullman Strike_

The next labor decision made by Judge Taft was in the well-known Phelan case in the great Pullman strike of 1894. The organization with which he was then called upon to deal was of a totally different character from that of the Locomotive Engineers. It was one managed in entire disregard of the law, the courts, and the public. Eugene V. Debs, the chief agent of that organization, the American Railway Union, is to-day the Socialist candidate for the presidency. In the Pullman strike of 1894 Judge Taft sent one of Debs' chief assistants--Phelan--to jail for six months. If his judicial conduct in this matter merits criticism, here are the facts on which that criticism must be based:

Some of us have fairly hazy notions to-day as to the Pullman strike and what it was all about. It began in May, 1894. The employees of the Pullman Company, engaged in making cars at Pullman, Illinois, went on a strike because of the refusal of the Company to restore wages which had been reduced in the preceding year. The American Railway Union, which then comprised some two hundred and fifty thousand railway employees which Debs had organized and over which he was master in control, later endorsed this strike and started in actively to make it a success. The principal means by which that success was sought was by declaring a boycott on Pullman cars. In Judge Taft's opinion in the Phelan case (Thomas _vs_. Cincinnati, N. O. & T. P. Rd. Co.), he gives the plan and scope of this boycott as follows:

Pullman cars are used on a large majority of the railways of the country. The members of the American Railway Union, whose duty it was to handle Pullman cars on such railways, were to refuse to do so, with the hope that the railway companies, fearing a strike, would decline further to haul them in their trains and inflict a great pecuniary injury upon the Pullman Company. In case these railroads failed to yield to the demand, every effort was to be made to tie them up and cripple the doing of any business whatever by them, and particular attention was to be directed to the freight traffic, which it was known was the chief source of revenue. As the lodges of the American Railway Union extended from the Alleghany Mountains to the Pacific Coast, it will be seen that it was contemplated by those engaged in carrying out their plans, that in case of a refusal of the railway companies to join the Union in its attack upon the Pullman Company, there would be a paralysis of all railroad traffic of every kind throughout the vast territory traversed by the lines using Pullman cars.

Phelan came to Cincinnati to carry on this warfare against the Pullman Company by paralyzing, if he could, all the railroads centering there. He did not stop even with the railroads using Pullman cars, but ordered a strike against the Big Four, which used none of these cars. On the day Phelan called the strike in Cincinnati, Debs telegraphed to him to let the Big Four alone if it was not using Pullman cars, to which Phelan answered: "I cannot keep others out if Big Four is excepted. The rest are emphatic on all together or none. The tie-up is successful." Debs replied "About twenty-five lines are paralyzed. More following. Tremendous blockade." A few days later Debs telegraphed: "Advices from all points show our position strengthened. Baltimore & Ohio, Pan Handle, Big Four, Lake Shore, Erie, Grand Trunk, and Michigan Central are now in the fight. _Take measures to paralyze all those which enter Cincinnati._ Not a wheel turning between here and the Canadian line."

_"Starvation of a Nation" Illegal_

On the day that Debs telegraphed Phelan to take measures to paralyze all those lines which entered Cincinnati--work which was already well under way--at the very crisis of the strike, on the application of the receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company, and on a petition which alleged a malicious conspiracy to prevent the receiver from operating that road, Phelan was arrested by an order of Judge Taft for inciting the employees of the receiver to quit their employment and for urging them to prevent others from taking their places, by persuasion if possible, by clubbing if necessary. The receiver asked for the commitment of Phelan for contempt, alleging that the whole boycott was an unlawful and criminal conspiracy, and that, for his acts in maliciously inciting the employees of the receiver, who was operating the railroad under order of the United States Court, to leave his employ in pursuance of that unlawful combination, Phelan was in contempt of court.

Was the combination of Debs and his associates illegal? Judge Taft said that it was, not only because boycotts are illegal under the law of every State in the Union where the question has arisen, with one possible exception, but because this combination of men, in their efforts to gain their own personal ends, had trampled upon the rights of the public. He said:

The railroads have become as necessary to the life and health and comfort of the people of the country as are the arteries in the human body, and yet Debs and Phelan and their associates propose, by inciting the employees of all the railways in the country to suddenly quit their service without any dissatisfaction with the terms of their employment, to paralyze utterly all the traffic by which the public live, and in this way to compel Pullman, for whose acts neither the public nor the railway companies are in the slightest degree responsible and over whose acts they can lawfully exercise no control, to pay more wages to his employees. Certainly _the starvation of a nation cannot be a lawful purpose of a combination_, and it is utterly immaterial whether the purpose is effected by means usually lawful or otherwise.

The "starvation of a nation," for such purposes, by such means, stopped, so far as Phelan was concerned, on the day these words were read by Judge Taft--the 13th day of July, 1894. It stopped because after a protracted and exciting trial, in which many witnesses were called and Phelan was fully heard in his own defense, Taft sent Phelan to jail for six months. Those who believe that the starvation of a nation is within the rights of labor engaged in a private quarrel, must tell us wherein this Judge did wrong.

These three cases are legal landmarks showing the limitations of industrial warfare. They are what the lawyers call "leading cases." They lay down clearly and dispassionately the law which marks the rights of the public to remain unmolested by the conflict of labor and capital at war. Such decisions are in American law what the Treaty of Paris is in the Law of Nations--a declaration of the rights of neutrals.

If, as a candidate for the presidency, Mr. Taft is to suffer from unpopularity created in any quarter by these decisions which he made as judge, he must endure it, for the search for popularity is not a part of the functions of a judge.

_The Courage of Great Judges_

The picture of Taft in the Phelan case, reading in a court-room crowded with angry and hostile men a decision which was to send their leader to jail; a decision which was to play a large part in determining one of the most distressing industrial wars of our day;--this picture recalls another court, another great occasion long ago.

In 1768 John Wilkes, who had been prosecuted relentlessly by the British Crown, and who had been outlawed and driven to France, returned to England, appeared before Lord Mansfield in the Court of Kings Bench, and demanded that the judgment of outlawry be reversed. The nation was frenzied by faction. Abuse and threats of personal violence were heaped upon the Chief Justice. In a court-room crowded with the enemies of Wilkes, the greatest of English judges reversed and annulled the decree of outlawry. In doing it, he gave what seemed a death blow to his own favor with the King, who had placed the judicial ermine on his shoulders. After he had rendered this judgment, facing the angry sycophants of the Crown, he spoke these words:

If during the King's reign I have ever supported his government and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honor the King and respect the people; but many things required by the favor of either are, in my account, objects not worth ambition. I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent or that the credulity of a deluded populace can swallow.

The two qualities which make a great judge are wisdom and moral courage. No great judge ever lived who did not possess them both. When the Phelan case was on trial before Judge Taft, it was a time of tremendous excitement. It was the very crisis of a great strike. The friends of the Judge feared for his life and asked him not to read his decision from the bench. He read it. The last sentence of that decision directed the marshal safely to convey Phelan to the Warren County Jail. When he read that final sentence he turned to the packed court-room and looking squarely into the angry faces before him said: "If there is any power in the army of the United States to run those trains, the trains will be run." To those who honor judicial courage no less than judicial wisdom, such occasions deserve to be recalled and remembered, for they are part of the great traditions of the bench.

But these decisions are not solely declarations of public rights. They contain statements of the legal rights of labor organizations in strikes, stated so clearly that the decisions have been cited time and again in subsequent litigation by labor organizations themselves as precedents in their favor. They affirm unequivocally the right of labor organizations to strike to better the condition of their members, and the right to use peaceable persuasion to prevent other employees from taking the place of strikers, a right which in some jurisdictions, particularly Pennsylvania, has been denied.

_The Right to Strike_

Quite apart from his judicial decisions, Taft's position on the strike question is clearly stated in public addresses. Last January, at Cooper Institute, he said to an audience of workingmen: "Now what is the right of the labor unions with respect to the strike? I know that there has been at times a suggestion in the law that no strike can be legal. I deny this. Men have the right to leave the employ of their employer in a body in order to impose on him as great an inconvenience as possible to induce him to come to their terms. They have the right in their labor unions to delegate to a leader power to say when to strike. They have the right in advance to accumulate by contributions of all members of the labor union a fund which shall enable them to live during the strike. They have the right to use persuasion with all other employees who are invited to take their places in order to convince them of the advantage to labor of united action. It is the business of the courts and the police to respect these rights with the same degree of care that they respect the owners of capital in the protection of their property and business."

No public man has placed himself more clearly on record on the so-called injunction question. The plank of the Republican platform which advocates a modification of the present federal court practice, under which injunctions are issued without notice to organizations sought to be enjoined, is a plank adopted at Mr. Taft's request and suggestion. The jurist who, in a decision in the coal mine cases of 1902 in West Virginia, described an organization which has done more for the coal miners than any other social force, the United Mine Workers, as a band of walking delegates fattening on the poor and ignorant, declared in the same decision that no injunction had ever been issued in strike cases which was not entirely justified by the facts. Judge Taft says this is not true; that such injunctions have been issued unjustly; and in his Cooper Union address he said:

But it is said that the writ of injunction has been abused in this country in labor disputes and that a number of injunctions have been issued which ought never to have been issued. I agree that there has been abuse in this regard. President Roosevelt referred to it in his last message. I think it has grown largely from the practice of issuing injunctions _ex parte_, that is, without giving notice or hearing to the defendants.... Under the original Federal judiciary act it was not permissible for the Federal courts to issue an injunction without notice. There had to be notice, and, of course, a hearing. I think it would be entirely right in this class of cases to amend the law and provide that no temporary restraining order should issue until after notice and a hearing.

He at the same time expressed himself in favor of having contempt proceedings for violations of injunctions heard by a judge other than the one who issued the injunction. But to the proposal that in such cases the ancient power of the courts to protect their own dignity and authority be taken from them and turned over to juries of laymen selected by interested parties and subject to all the passions and prejudices inevitable in such trials--to this he is opposed.

_The Laborer's Right to Protection_

One decision of Judge Taft's on a highly important labor question has been generally overlooked and deserves mention. The interests of labor in the law are not confined to strike questions. Its rights in peace are no less important than in war. The working people are deeply interested in the enforcement of laws which protect them against unnecessary dangers in employment. The position of Judge Taft on this important question is best shown by the contrast made by one of his decisions (Narramore vs. C., C., C. & St. Louis Railroad Co.) with the leading case in New York on the same subject. Both of these cases involve statutes directing employers to furnish certain specific protection for the safety of employees. In both cases the employer failed to obey the law which required the furnishing of that protection. The New York Court of Appeals decided that notwithstanding the statute, if the employee _stayed at work_ knowing that the employer had not obeyed the law, and knowing the danger created by the employer's failure to obey the law, by the mere fact of his remaining at work, the employee assumed as a matter of law the risks of being injured and could have no claims against the employer for injuries so sustained. This construction obviously makes the protective statute a dead letter and absolutely worthless.

Judge Taft, in a case in which this same reasoning was advanced, and in which the decision of this New York Court of Appeals was cited as an authority, refused to follow it and rendered a decision which leaves full vitality to protective legislation. The case was one in which a railroad company had failed to obey the law which required it to fill or block frogs and furnish guard rails on their tracks. The plaintiff, a railway employee, kept at work, knowing that the frogs were not blocked, and was hurt through the absence of the protection which the statute required the railroad to furnish him. He had a verdict from the jury, the railroad appealed, and its lawyer, Judson Harmon, argued that the verdict should be set aside because the man had kept at work knowing the railroad's violation of the law, and had therefore by legal implication contracted with the railroad to take all the chances of being hurt. Judge Taft refused to follow the New York case, declaring:

The only ground for passing such a statute is found in the inequality of terms upon which the railroad company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract, and it would entirely defeat its purpose thus to permit the servant to contract the master out of the statute.

This case has been cited all over the United States by counsel for workmen injured through the failure of their employers to furnish the protection required by statute for their safety. Perhaps a majority of the State courts follow the New York case, and say that protective legislation intended for the benefit of working men at work is of no legal value to them if they stay at work. The legal theory on which the workman assumes the risks of personal injury need not here be discussed. Judge Taft, however, decided that when a law is made applying to a dangerous business, in which four thousand men are killed and sixty-five thousand are injured every year, the intention was that the railroads should obey that law, and it should not be nullified "by construction." In this conclusion he does not lack judicial support of high character.

This, in substance, is Taft's labor record so far as his judicial career is concerned. Its consideration by the general public can be useful but for one purpose, which is this: A country like ours cannot afford to elect a class president. It cannot afford to elect a president in whose mind the distinction between lawlessness and personal rights is not clear and distinct; who to please one class will weaken the foundations of the liberty and peace of a whole nation. It can still less afford to elect a president to whom the working people are but pawns on the chess-board, and to whom prosperity means peace at any price by the sacrifice of the rights of the working people, so long as the mills are at work and property is secure in the possessions which it has somehow acquired. The enemies of our democracy are at both extremes.

The Socialists attacked Roosevelt with greater bitterness than any president who had preceded him, because he had not been a class president, and because he had not ignored the interests and rights of the working people and thereby helped still further to increase the constantly growing "class-conscious" body of dissatisfied men marching under the Socialists' banner. That section of the press which supports lawless property has attacked him because he has disturbed "values" and "vested interests." There is no sure protection for property but justice. Suppression of the labor organizations will not insure it; they should not and cannot be suppressed. Nor is there on the other hand any protection for the public if at the demands of a class, no matter how large its voting strength, the peace of the whole country is to be jeopardized by weakening the foundations of law which impose just limitations on industrial warfare. We need for president a man who will recognize and protect the just rights of both rich and poor and thereby protect American democracy against its class enemies. By these standards Mr. Taft must be judged.

Footnotes.

[1] Documents throwing light upon the action of Admiral Alexeieff will be found at the end of General Kuropatkin's historical narrative, although they are not a part thereof. These documents will also explain the important part that State Councillor Bezobrazoff played in the Far East, and indicate the source of his extraordinary power.

[2] A town on the road from Mukden and Liao-yang to the mouth of the Yalu River in northern Korea.

[3] Mounted Manchurian bandits.

[4] The Russian minister in China.

[5] The Russian minister in Korea.

[6] The documents at the end of General Kuropatkin's narrative will explain why an officer as powerful even as the Minister of War might be supposed to fear Bezobrazoff--a retired official of the civil service who, personally, had no importance whatever.

[7] In June, 1903, there was a good deal of friction between the employees of the Bezobrazoff company and those of a Japanese-Chinese syndicate which had obtained from the Korean Government, in March, a timber concession in this same region. Two Chinese were shot by the Russians, and the rafts of the syndicate were seized. Balasheff's dispatch probably referred to this or some similar incident, and the Captain Bodisco to whom it was addressed was probably an officer in the service of the Bezobrazoff company on the Yalu.--G. K.

[8] "Osvobozhdenie," No. 75, Stuttgart, August 19, N. S., 1905. No question has ever been raised, I think, with regard to the authenticity of these letters and telegrams; but if there were any doubt of it, such doubt would be removed by a comparison of them with General Kuropatkin's history.--G. K.

[9] Asakawa, who seems to have investigated this matter carefully, says that the original contract for this concession dated as far back as August 26, 1896, when the Korean king was living in the Russian legation at Seoul as a refugee.--"The Russo-Japanese Conflict," by K. Asakawa, London, 1905, p. 289.

[10] The italics are my own.--G. K.