CHAPTER XXI

CRIME CHEAPER THAN COMPETITION

The jury was composed of nine farmers, one tailor, one store-keeper, and one railroad foreman. "So intelligent a jury," said the Buffalo _Express_, "is proof perfect that the verdict it returns is the only one warranted by the law and evidence." The jury found all the defendants guilty whom the court allowed them to try. The verdict, "Guilty as charged in the indictment," was given May 18, 1887. Every possibility of appeal and reversal was resorted to. The judge granted a stay, and this left the defendants unsentenced. A motion for a new trial postponed the day of fate until December 24, 1887.

When the judge decided against the new trial an appeal was taken, and was carried through every court except the highest. Legal procedure in New York makes the courts a hunting preserve for those who can afford the luxuries of litigation. The law was changed by the Field code so that demurrers and counter-appeals, proceedings and ancillary proceedings, on technical points can be carried, one after another, from court to court, while the real point at issue has to wait untried below for the results of this interminable contest. By grace of this power to carry preliminary and technical questions from court to court, at the pleasure of quibbling and appealing lawyers and procrastinating judges, from courts of Oyer and Terminer to the Supreme Court at General Term, to the Court of Appeals, rich corporations and individuals are able to tire out altogether all ordinary opponents. It was only by help of very able and highly paid lawyers, officers of the courts and of justice, that the law of New York was "reformed," so that the technical parts of a case could be to such an extent disengaged from the main body, and sent forward and backward, up and down, through the whole series of appeals, consuming endless time and money, while poor men seeking justice kick their heels in the lowest courts.

As the time for pronouncing sentence came on, petitions for mercy were circulated in Buffalo and Rochester. The members of the jury which had found the accused guilty were labored with separately to sign a recantation. Only six succumbed and signed a statement that the prisoners were found guilty, not because they had conspired to blow up their rival's refinery, but because they had enticed away Albert. This recantation was in the face of the judge's charge, which had made the plot to blow up the Buffalo works the chief and the important inquiry in this case, and the verdict had been given under the influence of this view of the case. Six of the jury saw the impropriety of making this statement after they had disbanded and passed from under the legal and moral restraints they felt when sitting under their oath of office, and refused to sign it.

When the paper from the complaisant six jurors was handed in, the District Attorney said in court: "These jurors received money for making these affidavits. If required to do so I will prove the statement." He was not called upon to do so. "These affidavits," he said afterwards, "were procured for the purpose of influencing the Court to administer the lighter punishment, since they tended to show that the verdict was directed against the lighter offence. One of the jurors told me he had been offered money to sign one of these affidavits, and he knew of one juror who had received $10 for signing one."

When the last possibility in the way of proceedings for a stay or for a new trial had been exhausted, except argument of an appeal in the Court of Appeals, which was known to be useless, sentence was pronounced. The penalty provided in the statutes was imprisonment for one year in the penitentiary, or a fine of $250, or both. The lawyers pleaded that the elder of the convicted men was old, that the younger had just returned from a wedding tour in Europe, that some of the wealthiest and most prominent citizens of Rochester had petitioned for mercy, and that six of the jury had done likewise. Each was sentenced to pay a fine of $250. Notice of appeal was given by the convicted, and a year was consumed on both sides in preparations to fight the case to a bitter finish. But the appeal was abandoned. A new trial and new sentence might have ended worse. The fine was paid, and these employés of the trust, upon whose record as reputable and inoffensive citizens for all the years of their business career no shadow had fallen till they entered its employ, took thereby the place assigned them by the jury--that of convicts guilty of crime.

Crime, it seems, may in this country be cheaper than competition. They who received the larger part of the benefit of the enticement of Albert, of the harassing litigation, of the damage done by the explosion, and of the bankruptcy which was finally produced by these means, went free of all punishment; and the employés found their crime but little less than a pastime. After his conviction, and before his sentence, one of the two married. His wedding was attended by many of the great men of the trust--magnates in the New York world of affairs and its affiliated interests. It glittered with gold and silver and precious stones which they sent to signify to the world that they stood sponsor for him.

The case of some humble boycotters was then fresh in the public mind. Certain working-men, on strike, handed around printed circulars in the streets of New York, requesting people not to buy beer sold by their employer. In a few weeks from the time they dropped those circulars in the streets they were in the penitentiary at Sing Sing. It was shown on their trial that they were entirely ignorant of the fact that they were violating any of the laws of the State in what they did. It was shown on the trial of the oil men that they did know that the course they had in view was criminal, and were warned by a lawyer it might land them in prison. "It was very fortunate," said the New York _World_, "that they were not poor men convicted of stealing a ham."

One of the reasons given by the judge for his leniency was that prominent citizens of Buffalo and Rochester had begged for mercy. "With the very highest respect for the judge," said the Buffalo _Express_, "as the _Express_ has often demonstrated, we must say that this is a mighty queer excuse. Three-fourths of those citizens are in one way or another identified in interest with the oil trust, as the judge could readily have ascertained, and their names on that petition were entitled to no more moral weight in the consideration of this case than the names of the two guilty men should have had if they had seen fit to sign it."

The sentence raised a whirlwind of indignation. "As ridiculous as anything that could be imagined," said the Philadelphia _Ledger_. "It is high time," said the New York _World_, "that the lines were drawn between competition and conspiracy, between business and brigandage." Referring to the golden harvest of $300,000 dividends in one year on a capital of $100,000, representing an original investment of only $13,500, the _World_ said: "The monopoly of this sort of business is a very seductive thing. It is calculated to make men of more boldness than morals blow up factories, or do almost anything else to control the field." "It can afford to blow up a rival refinery every day in the year at that price," said the Erie _Dispatch_. "There have been conspiracies," said the Oil City _Blizzard_ (Pa.), "to injure the business of opposition concerns right here in Oil City, and the conspirators have never been punished." "It is--a light sentence," was the comment of the Buffalo _Commercial_. "Poor criminals," the Buffalo _Express_ declared, "may well wonder why rich ones are let off so easily. It is equivalent to deciding that wealth may securely indulge in that inexpensive sort of amusement as a mere pastime. Who's afraid?" it asked. "What conspirator 'in restraint' of trade is afraid of a $250 fine?" "Certain it is that no wealthy criminals convicted of such a crime ever before received from a court such a mockery of justice," was the verdict of the Springfield (Mass.) _Republican_.

The facts of this case have not been carelessly examined or decided. Two grand-juries in succession passed upon the evidence and found it good enough for indictments. Two petit juries heard the evidence, both for and against, in the civil and criminal suits, and found it good enough--one jury for $20,000 damages, another for a verdict of criminally guilty. Seventy picked citizens have unanimously concurred in the decision "Guilty." And this scarlet letter the monopoly will always have to carry.

"So surely as Matthews lives, and so long as he lives," District Attorney Quinby said in the criminal prosecution, "he will never again make another dollar upon a barrel of oil he may manufacture. The word has gone forth, right in this court-room, that this man shall be crushed, and he can never again run his works successfully. That is going to be one of the results of this case." The fulfilment of this prediction came swiftly. This sentence of ruin upon Matthews was executed before sentence was even pronounced upon the conspirators against him. He had been left crippled by the flight and corruption of his partner, the only practical oil man in the enterprise. When he tried to obtain some one to take his place, he could not get word of any one not connected with the oil combination. He did not dare to advertise, and knew no one in Buffalo he could venture to speak to. He had made contracts before opening the works, and was unable to fill them. The pipes had been laid wrong; it took him a year trying one way and another, and making a great many mistakes, to set them right. His third partner was frightened back into the employ of the oil combination by threatening litigation.

Then came the suits to destroy, punctually as threatened.[502] "If one court does not sustain the patents, we will carry them up until you get enough of it," one of the trustees said to Matthews. One of the Rochester managers, in speaking of these suits, said: "I don't know as we will gain anything really, but we will embarrass them by bringing these suits, and, if it is necessary, we will bring them once a month; yes, we will bring them once a week." One, two, three, four, five suits came with injunctions. "Null and void" was the verdict of court after court on the worthless patents and pretended trade-marks on which he was sued.

Matthews had to keep pushing his pursuers to trial. What they wanted was not decisions but delays, to ruin him by the waste of time and money.[503] "It cost me one-third of my time, and $25,000 or more to defend these suits." These suits were used to scare away his customers. "I was instructed," said the Boston representative of the combination, "to tell the customers that the Buffalo company were using their patents."[504] The sole legal victory the combination won was the recovery of six cents damages on a technical point.

Matthews, on his side, took to the courts. He sued his persecutors as individuals and corporations. He pursued them civilly and criminally. He was successful in defending himself against their suits. All his suits were successful as far as he was able to carry them. One suit for damages produced a $20,000 verdict; another was for $250,000, on the still stronger evidence procured in the criminal trial. It took Matthews two years--from 1883 to 1885--to get his first case for damages for conspiracy to trial. All that time was consumed by his opponents in quibbles about procedure, technical objections, and motions for delay, appealing them from court to court. The judge, in taking from the jury afterwards the three trustees who had been brought to trial for conspiracy, declared that he could see no reason to believe that these suits had been brought without probable cause. But the jury before which the suit for damages was tried saw plenty of such reasons, and gave Matthews' company a verdict of $20,000 damages. The views of the judge and jury might have varied in the same way on the question of the guilt of the three members of the trust.

Matthews woke up one morning to discover, as he had been told he would, that there was no Atlas Company to get his oil from. Corporations may have no souls, but they can love each other. The Erie Railroad killed the pipe line of the Atlas Company for the oil combination.[505] The courts had been kept busy granting injunctions against it on the motion of the Erie. These were invariably dissolved by the courts, but an application for a new one would always follow. At one time the lawyers had fifteen injunctions all ready in their hands to be sued out, one after the other, as fast as needed. The pipe line was finally destroyed by force. Where it crossed under the Erie road in the bed of a stream grappling-irons were fastened to it, and with an immense hawser a locomotive guarded by two freight cars full of men pulled it to pieces. The Atlas line and refinery became the "property" of their enemy. Matthews' supply of crude oil was not cut off immediately. He was tapered off. One of the superintendents of the Atlas testified in the suit for damages Matthews brought against the Atlas after it passed into the hands of the combination, that by the order of the manager of the refinery he mixed refuse oil with the crude which they sold to the Buffalo Lubricating Oil Company. Finally the supply was shut off altogether.

Matthews turned to the railroads connecting Buffalo with the oil country. They all put up their rates. At the increased rates they would not bring him enough to keep him going; they would not give him cars enough, and told him they would not let him put his own cars on the road. Even the lake steamers raised their rates against him. The farmer-refiner was taking his lesson in the course which had driven his first employer to dig oil-wells because "there were restrictions in the shipments." Cut off from a supply by either pipe or rail at Buffalo, Matthews made an alliance with the Keystone Refinery in the oil regions. War was now made upon the Keystone. It was finally ruined.

Packs of lawyers were set upon Matthews, and they finally brought him down. An attorney appeared before a judge and made a motion that the property of Matthews' company be taken out of Matthews' hands and be placed in the charge of a receiver, as officer of the court, to secure a debt due a Buffalo bank. This done, the lawyer appeared before the judge who afterwards decided that $250 fine was punishment enough for criminal conspiracy, with an offer from the monopoly to pay $17,300 for the discontinuance of the suits for damages which Matthews had instituted, and $63,700 for all the other assets. The other creditors and all the stockholders opposed the motion, but the judge granted it. There were two suits. One had produced a verdict of $20,000, and the other one for $250,000 was brought on the new and much stronger evidence secured in the criminal trial. As to the value of the property, Matthews had brought his enterprise to the point where it was worth $20,000 a year. It was capable of producing many times that amount of profit. Had not Albert been enticed away, the new works would have yielded a profit of over $100,000 the first year. They had a capacity of 70 to 80 barrels a day of lubricating oil, and the profit was $5 to $6 a barrel at the time Matthews and Albert went into the business.[506] The judge, overruling a majority of the creditors, ordered the receiver to accept the offer. He gave as his reason for selling these damage suits that a criminal prosecution had already taken place for the same offences, and a person could not be punished twice for the same offence. As they had not yet been punished, this meant, if it meant anything, that the suits were to be sold out for this inconsiderable sum, and the guilty men were to get their punishment in the sentence he was to pass upon them in the criminal court.

Three months later, before the same judge, these convicted agents stood up to receive their criminal sentence. The judge gave them the lightest sentence in his power, "nominal punishment." He did so, he was reported by the Buffalo press to have said, because "it has come to the attention of the court that civil suits have been brought to recover damages sustained by reason of the same overt acts. Large punitive damages are demanded in those actions. It is fundamental that a person cannot be punished twice for the same offence."

The judge released them from the suits for damages because they were to be punished criminally. Then he released them from any but nominal punishment, because there had been suits for damages. One would infer that the civil suits for damages were in full career in the courts, to end possibly in hundreds of thousands of dollars' damages against the convicted. No one would infer what was the truth--and who should have remembered it so well as the judge, for it was he who had done it?--that the civil suits had been ordered sold. The judge had ordered his officer--the receiver--who had the luckless Matthews' affairs in his grip, not to try the cases, but to sell them. The suits had been ordered sold in February preceding, and they were as dead as--justice. But as all the technical formalities and slow proceedings needed to consummate the sale had not been completed when sentence was passed in May, the damages they might produce were made a reason for inflicting none but nominal punishment. The order of sale made it impossible that they should ever be tried.

Of the money paid into court, nearly half--$30,000--went to the lawyers, and, crudest stroke of all, the attorney who had made the successful motion before the judge to take Matthews' property away, and to order the forced sale, got $5000. Matthews got nothing. Even his right to sue his destroyers had been sold to them on their own motion and at their own price.

The crime was plotted in March, 1881. The participants were indicted in 1886. It took until May 15, 1887, to secure conviction. While sentence was still unpronounced Matthews' property was put into the hands of a receiver of the court, January 16, 1888; the property was sold by order of the court, February 17, 1888; sentence was pronounced May 8, 1888; the formalities of the sale were consummated July 11, 1888; and the sentence, coming last of all--the fine of $250--was executed May 1, 1889.

Matthews had tried to make money in oil, and had failed; but his competition had forced those in control of the markets to increase the price to the producer, and he made light cheaper to the community. In Buffalo his enterprise had caused the price to drop to 6 cents from 12 and 18 cents, in Boston[507] to 8 cents from 20. Oil has never since been as high in Boston or Buffalo as before he challenged the monopoly. And he forced the struggle into the view of the public, and succeeded in putting on record in the archives of courts and legislatures and Congress a picture of the realities of modern commerce certain to exercise a profound influence in ripening the reform thought with which our air is charged into reform action.

Nothing is so dramatic as fact, when you can find the fact. The treatment his church gave the brother, who had been the victim, as judicially declared, of a criminal conspiracy, is described in the following letter from Matthews:

"BUFFALO, January 19, 1888.

"MY DEAR FRIEND,--As your father was a clergyman, and as you feel an interest in church affairs, I think you will wish to know of my recent experiences. My church here is not a rich one, but we pay as much for church music as we do as salary to our pastor. Probably the wealthiest man in our church is an agent of the oil trust. He receives a salary of $18,000 per year, and keeps their retail store here, and has been a witness for them in important suits. He does not belong to our church, but is a trustee and treasurer of the Church, and is very kind to our pastor, whom he took last summer on quite an extended vacation trip in New England. But you know the class of men that usually become trustees in our city churches these days.

"My pastor surprised me a few days ago by making a visit at my office, and telling me that as my term of office as member of the session expired soon, it might be best for me not to be a candidate for re-election, in view of what the newspapers had said about me, and the opposition there was. He said, however, that he personally felt friendly to me, and regarded me highly. He seemed to be embarrassed, but I quickly relieved the situation by saying that I had told my family some months before that I should not again hold a church office. I told the doctor he well knew I did not desire office in or out of the Church. True, the newspapers, under the influence of the oil trust, had ridiculed me as 'farmer Matthews from the country.' But why should my pastor mock me with such shallow pretences for reasons for church opposition to me? I had engaged in the oil business without the consent of the oil monopoly, and my pastor then and there told me my friends thought me foolhardy in doing so. I could hardly suppress my feelings on hearing this said by the man who baptized my children and ministers at the church altar. What could all this mean? I had only fought for my rights as an American citizen, as a manufacturer and shipper of oil. I had been sustained in every detail by the courts. I had convicted in our courts prominent men of conspiracy, little thinking that the subtle power of these men could come to dominate the Church itself. My feelings were intense, and words came thick and fast--all too tame to express my feelings. I told the doctor how I had struggled on from boyhood, and at middle age had accumulated a few thousand dollars, and in all these years had never sued a man or been sued, and that my struggle with the oil monopoly was for rights that no one worthy to be called a man dare to surrender. I told the doctor how I had been hounded, and my business beset by spies--that my friends had often told me I was in danger of assassination if I continued the fight in the courts. He, having done his errand, seemed uneasy, and anxious to go. I told him I had seen the rising and corrupting power of this trust in their control of our aldermen and courts, in state and national legislation. I could witness all this with comparative composure; but it made every drop of my blood hot to see them erect their altars for Mammon worship in the Church of the living God. I had seen the hard-won earnings of a lifetime swept away, and had hoped that at least one word of sympathy might come from the Church. If I had been robbed by old-fashioned highwaymen and the Church received none of the loot, church sympathy would have been hearty and abundant. But no; Sabbath after Sabbath our reverend doctor rises in the pulpit, and, at the regular time, says: 'Let us worship God in the gift of money.' Religion, divine worship, and money all seem to have a like meaning as they are alternately mentioned in our pulpit. My ancestors far back were church people, but this worshipping money, or worshipping God with money, is all new to me. It was not the acceptable worship required by Christ and taught by his disciples. After the conversation I had with my pastor that day I trudged home, but could not sleep that night. My heart was too full of sorrow as well as anger. I hope you will forgive me for writing you so long a letter. I have written much more than I intended to, but did not see where to stop. There are many things I wish you could see but not experience in the life of a business man nowadays. I want you to write often, as every word from a true friend is prized highly in these dark days for me."

The action of the judge in this and another celebrated case was made an issue in the elections in New York in 1889. In June, 1882, the railroads in New York City, rather than pay the freight-handlers the 20 cents an hour they asked for, instead of 17 cents, brought the business of the city to a stop. They refused to employ their old men at that price, and did not supply their places. Trucks by thousands, heavy with merchandise, stood before the railroad freight-houses for days, waiting in vain to be unloaded. The trade of the metropolis was paralyzed, and the railroad officials sat serenely in their offices, letting the jam pile up until the freight-handlers were starved into accepting the wages they were offered, and commercial distress had made the business community desperate enough to tolerate that injustice, or any other iniquity, provided the "Goddess of Getting-on" were allowed to get on again. It was so clear that the price asked by the men was fair, and that the refusal of the railroads to set them at work and keep the channels of trade open was due to a purpose to manufacture such widespread loss and trouble that the public should be goaded into forgetfulness of the rights of the men, that public opinion forced the Attorney-General of the State to act. Re-enforced by able counsel, he applied for a peremptory writ of mandamus to compel the roads to resume operations. This motion came before this Buffalo judge, then sitting by assignment in New York. He kept the people waiting ten days, and then quashed and dismissed the petition. The decision of the Supreme Court, composed of judges of both parties, reversing his action, was unanimous, but the mischief he had done was by that time--January 17, 1883--long past mending.

When he was nominated to be judge again, after his indecision and decision had swelled the dividends of the great railways of New York, the presiding officer of the convention which was to choose him to be their candidate was, by a coincidence, also the president of one of the great railway corporations which had been involved in the judicial proceeding of 1882. The judge's record was made one of the issues in the State election which followed the defeat of justice in Buffalo. He was nominated by the Republicans in 1889 for Judge of the Court of Appeals, the highest court in the State of New York, and the nomination was asserted by the New York _Times_, in a leading editorial, to have been procured by the oil trust. Its "influence was active," said the _Times_, "in securing the nomination of" this judge. " ... An attorney who has labored in its interests at Albany during the last two sessions of the Legislature was conspicuous among the men who did the work." The New York _Times_, the Buffalo _Courier_, the New York _Star_, the New York _World_, and other leading journals of the State retold the story of the trial, and declared that the judge's action in taking the case of the members of the trust from the jury, and the sentence he gave the convicted agents, made it clear that he was unfit to be a judge. The oil combination, the _World_ said, editorially, "have had agents busy this year trying to secure his elevation to the highest court in the State.... We say confidently that the history of the case establishes his conspicuous unfitness for a place on the bench of the Court of Appeals. He should be defeated, and with him the oppressive monopoly which is actively seeking his election."

He was defeated with the rest of the ticket. District Attorney Quinby was re-elected several terms in succession. After their victory the people went to sleep, but not the sower of tares. At the election of 1890 the nomination of this judge to a seat on the bench was secured from both parties. For fourteen years, therefore--from 1890--a seat of the Supreme Court, one of the most important tribunals of justice in New York State, will be occupied by this judge, before whom must come many questions affecting oil transportation, electric lighting, natural gas and illuminating, street railways, banking, and other interests of the oil trust.

Monopoly cannot be content with controlling its own business. It is the creature of the same law which has always driven the tyrant to control everything--government, art, literature, even private conversation. Any freedom, though seemingly the most remote from any possible bearing upon the tyrant, may--will grow from a little leak of liberty into a mighty flood, sweeping his palaces and dungeons away. The czar knows that if he lets his people have so much freedom as free talk in their sitting-rooms their talk will gather into a tornado. In all ages wealth, like all power, has found that it must rule all or nothing. Its destiny is rule or ruin, and rule is but a slower ruin. Hence we find it in America creeping higher every year up into the seats of control. Its lobbyists force the nomination of judges who will construe the laws as Power desires, and of senators who will get passed such laws as it wants for its judges to construe.

The press, too, must be controlled by Power. During the criminal trial at Buffalo one of the oil combination's detectives was put on the stand. He was compelled to produce his written instructions from the counsel of the trust.[508] These had been given him at the office of the oil trust in New York. He forwarded his reports to its office in New York, and received his pay from the same place.[509] He sent his subordinates to get employment in Matthews' works, and through them obtained information from the inside. The monopoly paid one of these detectives $2.50 a day for spying, while he could earn only $1.50 a day for working.

"I see here further," said the District Attorney, "'Why the _Express_ published the last complaint'"--in Matthews' suit for $250,000 damages. "Did he ask you to find out about that?"

"He did."

"That is, he wanted you to find out what arrangements were made with the Buffalo _Express_ to have the complaint published?"

"Yes; the whole complaint. It covered the whole of the newspaper."

"And do you know 'how many copies were taken by Matthews?' Did he tell you to find that out, too?"

"Yes, sir."[510]