Labor and Government by Injunction
Labor and "Government by Injunction." By Victor Yarros.
Since the great railroad strike in Chicago, judicial injunctions,—that is, restraining order forbidding under penalties certain actions and practices—have figured very prominently in all conflicts and controversies between labor and capital. "Government by injunction" is the term applied by opponents of the new departure to this judicial intervention, while its apologists retort thatit is preferable to its only alternative—lawlessness, disorder and labor aggression.
What are the objections to government by injunction? What is the nature of the innovation and in what way does it injuriously affect the interests of organized labor? Before proceeding to answer this question, it is important to observe that a thing may be unjust and highly improper from the standpoint of the general rights of citizenship without necessarily involving any special detriment to labor as such. Workmen as wage-earners have, of course, certain peculiar interests which may be called class interests, despite the courts which would deny that there are any class divisions in the United States. But as citizens and members of the body politic they have rights and interests in common with other citizens of different classes and vocations. Is it as citizens that workmen have been strenuously protesting against recourse to injunctions, or is it in the special capacity of organized wage-earners that they have found the use of injunctions prejudical to their rights and interests? In other words, has the power of labor organizations been weakened,—have their ordinary methods been rendered less efficacious— by the injunctions served upon the application of employers? Are strikes less successful today than in former times because of these injunctions? It has been emphatically charged that judges have caused the failure of strkes by illegitimately intervening to protect capital and cripple labor, and these charges have been vehemently denied. What is the truth of the matter?
Let us consider first the question of injunction
from the standpoint of the constitutional rights of citizenship in general.
An injunction is a writ issued by a court of equity to restrain a man or a set of men from doing an injury to an individual or to the public. Common law judges never issue injunctions, because the remedy is essentially an equitable one in the Anglo-Saxon system of jurisprudence, nor can a judge sitting in equity issue an injunction in a case where there is an adequate and complete remedy at law. For example: a man threatens to assault you or—to make the case an extreme one— to kill you, or burn your house. You can obtain no injunction against the threatener. Equity has no right to interfere with him. You can obtain a warrant against him at law, take him before a court and have him tried on the charge of threatening to commit a tort or a crime, as the case may be. The criminal law is adequate and sufficient to punish crimes and to prevent contemplated crimes of which information is somehow secured. The statutes against criminal acts are in the nature of injunctions. They are framed by the legislature. He who disobeys them incurs the penalty provided by the lawmaking body. But the punishment in crimes and torts is not summary. The fundamental law guarantees a trial by one's peers—a trial by jury. An accused must be found guilty of the crime charged by the jury before the penalty can be imposed on him. To deprive him by force, fraud, or indirection of trial by jury is to deny him a fundamental right, to violate the Constitution and an essential principle of Anglo-Saxon civilization.
What is the object of an injunction in a labor controversy? Let us assume that the injunction does not prohibit any act which the strikers and their sympathizers are allowed to do by the laws of the State. Let us assume that the injunctions that have been issued in past strikes have not tended to abridge the freedom of speech, agitation, assembly, appeal, social pressure, and boycotting. We may assume this because even the apologists of the injunction remedy admit that it would be wrong to restrain men from doing lawful things. Thus, in the late miners' strike, the inaccurate summary of the Jackson injunction, which represented the West Virginia Federal judge as having enjoined labor leaders from "inducing" miners to strike and from calling public meetings to advise a general suspension elicted a general expression of dissent and condemnation. The judge, it was said, had gone too far. He had made crimes of lawful acts and had denied the strikers rights which the law assumed and guaranteed to all citizens. The objection, it was urged, did not lie against injunctions, but against attempting to enjoin perfectly proper acts.
This was a clear case of question-begging, of ignoring the fundamental vice of the injunction as applied to labor troubles. An analysis of the restraining orders issued in connection with the miners' strike shows that the following acts were forbidden: Inducing workmen to stop work by threats, intimidation and violence; interfering with the operation of the mines or with the management of the property ; marching upon and occupying the highway and approaches to the mines; assaulting miners at work and trespassing upon the property of the operators.
Certainly, organized labor does not claim the legal or moral right to do these things; certainly it does not demand the freedom to assault, threaten and intimidate. If it denounces injunctions as judicial tyranny and usurpation, it is not because it wants to do the things forbidden by the injunctions. The triumphant question put to labor by so many newspapers: "What grievance is there if no right is denied by the injunction, no freedom violated?" is utterly beside the mark, indicating extreme ignorance or equally extreme unfairness. Equity has no more warrant or right to interfere in cases where assault, trespass and destruction of property is threatened than it has to interfere where forgery and theft and murder is threatened. The injunction writ was never intended to apply to such cases. It is the duty of the executive power to protect persons and property from violence and threats of violence, and persons engaged in unlawful conspiracies are amenable to the criminal law. The courts of equity have no authority in the premises, and it is pureityranny for them to proclaim the failure of the executive power and to attempt to prevent crimes and torts by the injunction method.
Here is how Judge Goflf, of West Virginia, attempted.to justify an injunction:
A body of men, over 200 strong, marching in the early hours of the morning, before daylight, halting.in front of the mine opening and taking position on each side of the public highway for a distance of at least a quarter of a mile, at the exact places where the miners were in the habit of crossing that highway for the purpose of going from their homes to their work, is at least unusual and in the state of excitement usually attending such occasions neither an aid to fair argument nor conducive to the state of mind that makes willing converts to the cause thus championed.
The miners working at Montana bad the same right to use the public road as the strikers had, and it was not open and free to their use when it was occupied by over 200 men stationed along it at intervals of three and five feet; men who, if not open enemies, were not bosom friends. That some miners passed through this line is shown; that others feared to do so is plain; that the marching column intended to interfere with the work at the mines would be foolish to deny.
Judge Jackson, of West Virginia, similarly justified an injunction issued by him on the ground that irreparable damage to property was threatened. What these judges overlook is that, admitting their statements to be absolutely correct, no case for an injunction is made oat. There is the criminal law to punish those guilty of violating it, and there is the court of law and the executive authority to prevent men threatening crime from carrying out their intentions. Equity has nothing whatever to do in such cases.
And what is the result when equity does interfere? Neither more nor less than the abolition of trial by jury, the violation of fundamental constitutionally-guaranteed rights. The man who disobeys an injunction is punished for contempt of court, and if his offense has been trespass or assault or intimidation, he is deprived of trial by jury and punished without due process of law. Trial by jury is the palladium of liberty, and punishment for contempt where the offense committed is one triable by jury abolishes by indirection the right to such a trial.
Nay, more, the result is even more grave—and even more preposterous and paradoxical. The injunction method makes it possible for a man to be punished twice for the same act. A man who has trespassed upon property, say, in violation of an injunction and has been sent to jail for contempt is not rendered by such punishment immune from further prosecution for the same offense. He can be tried and punished again, the second trial being, of course, by a jury and upon a regular indictment under the criminal law. Is not this an outrageous travesty upon Anglo-Saxon jurisprudence, upon liberty and j ustice? Judicial tyranny, it has been emphatically said ' by distinguished judges themselves, is the worst possible kind of tyranny. If our judges are to interfere to suppress disorder and prevent the commission of crimes, constitutional guarantees and bills of rights become mockeries and delusions.
But it may be said that this argument only shows the inequity of the labor injunctions from the standpoint of constitutional government in general; that it fails to show why workmen as such are specially injured by the new method. This is true. We see why citizens who have liberty and value their constitutional rights should oppose injunctions in the field of criminal law ; but do we see how labor organizations are injuriously affected by the novel practice, how strikes and efforts to raise abor's condition are defeated through it? It is this point to which we must now direct attention.
In the first place, the "omnibus" injunctions issued against strikers are vague, misty and confusing. Even if the intention of the court is to forfeit nothing that is lawful, the language of the order is necessarily so sweeping and indefinite that their leaders, organizers and agitators are at a loss to know where their rights end and where collision with the judicial authority begins. Statutory law is generally clear and precise, and strikers anxious to keep within legal boundaries have no difficulty, as a rule, in determining what they may and what they may not do. In doubtful matters, such as boycotting, picketing, etc., they naturally and properly, as free men, claim the benefit of the doubt, knowing that while responsible for their actions, a jury alone can declare them guilty of improper conduct. Take the great boycott at Milwaukee over a year ago. Though it is generally assumed that boycotting is illegal in most States, no attempt was made to indict or punish any of the Milwaukee boycotters. Public opinion was with them, and no local jury would have found them guilty. But by a judicial injunction the boycotters might have been branded as law-breakers and the systematic campaign brought to an end.
The interpretation of injunctions is itself a great art. Intelligent laymen and even lawyers have radically differed in construing certain expressions in these rules. Thus strikers have been restrained from "inducing" others to quit work by "threats and intimidation." Who knows what these terms mean? Who knows how the judge who used them would define them in contempt proceedings? Indeed, the greatest value of the injunction to corporations lies in their ambiguous and uncertain character. Strikers, like other citizens, are entitled to know clearly what their rights are, and to have the perfect assurance that these rights will not be curtailed by arbitrary and summary processes or by indirection. An injunction does not necessarily prevent the success of a strike, but it hampers the strikers in many directions and puts a stigma upon them.
In the next place, the issuance of injunctions tends to alienate the sympathy of well-meaning but uncritical citizens from the cause of the strikers The impression is produced that the strikers are dangerous lawbreakers who menace personal and property rights, and whom it is necessary to hold in check by the threat of judicial intervention. The right and grievances of the strikers are lost sight of, the merits of the controversy are forgotten, and interest is transferred to the incidental question of whether or not the strikers propose to depart from the legal limitations upon their method of warfare. This is a grave injustice to strikers in a government founded on the conception of popular rights. To appreciate the danger of this obscuration and shifting of the real ground of the labor cause, we have but to reflect upon the remarkable change in the popular attitude toward strikes and trade unions. A few years ago labor had reason to congratulate itself upon having vindicated its rights as against judicial quibbling and conservatism. Even courts and lawyers manifested an understanding of the modern view of labor organizations. Today, the signs of a reaction are abundant and conspicuous. The old prejudices are being revived and once more we hear that unions are trusts and conspiracies in restraint of trade. One judge has gone so far as to prohibit men from leaving the service of a railroad receiver. No factor is responsible for the reaction to the same extent as the injunction.
It is true, therefore, that organized labor is specially concerned in the effects of "government by injunction." The labor movement has distinctly suffered from it, and must continue to suffer. All popular conceptions are perverted by the practice, and strikers are deprived, by a species of judicial legislation, of a large amount of freedom which they would enjoy if they were only amenable to the criminal law—freedom to which they are as clearly entitled as if it were specifically and plainly conferred upon them by positive law.
Eternal vigilance is still the price of liberty, and although every citizen is invaded and injured by the injunction practice in the field of criminal law, it is idle to expect that those who do not personally and immediately feel the loss of rights and freedom of action will work energetically to check the evil and recover lost ground. Organized labor being the direct sufferer, it will be forced to assume the initiative in the coming struggle against the perpetration and growth of government by injunction.