LETTER IX
My dear Judd:
We know by now what the word “privilege” means. Hundreds of thousands of people do not have to do useful labor in our society; they draw off the profits of other people’s labor, and the good things of life flow to them in a stream so great as sometimes to overwhelm them. And this flow is guaranteed them for life, and to their descendants to the end of time. All our political teachings, all our economic calculations, are based upon the idea that this state of affairs is permanent; the right of property to draw interest, dividends and profits is inviolable.
It is easy to understand that the favored ones of privilege believe in the sacredness of such rights. Once upon a time the priests protected them, and then the kings; now it is the judges, and here is our modern form of superstition, the worship of the Dead Hand. Our newspapers know nobody more wicked than the man who assails the courts; he is a demagog and an incendiary, and now and then some court reaches out its mighty hand and claps him into jail.
Nevertheless, Judd, I take the risk, and point out to you that judges are men like other rich men. I have never seen statistics as to how many are ex-corporation-lawyers, but the percentage must be close to one hundred; for what else is there for a would-be judge to be, except a corporation lawyer? He must be a “big” lawyer, before he is fit for the bench; and how else can you be “big”—that is, earn a great deal of money—except by serving those who have the money? And how are you going to get your nomination, except by going to see the political boss who has the giving of nominations? And will the boss give you this honor, without asking what use you are going to make of it after you get it? When there are so many millions upon millions of dollars at stake, depending upon your judicial decisions? Really, Judd, if you expect things like that to happen, you are as big a dunce as your industrial masters think you!
It happens that I once knew intimately a very “big” judge; he was a member of the Court of Appeals of the State of New Jersey, which is to say he was one of the five highest judges in a state which was extremely important, because many of our biggest corporations were formed under its safe and easy laws. At the same time the “big” judge was a “big” corporation lawyer on the other side of the Hudson River, in New York state; in fact, he was the highest paid corporation lawyer in the city, which was surely going some; he was the author of “Dill on Corporations,” the standard text-book in every law-school in the country. I have sat in James B. Dill’s library many an evening, and watched him smoke big black cigars, and listened to him pour out his soul. I will tell you the first story of his career, and then I will tell you the last.
A young law-graduate, he got a job in the law department of a big railroad, I think he said the New York Central; he was to defend accident suits, and the lawyer who took him in charge pulled open a drawer in his desk and took out a list of the judges of the state. “You will notice that some of these names are checked,” said the man. “When we have cases, get them before one of those judges. Those are our judges.” Said Dill to me: “That was a young man’s first introduction to the law.” I asked: “Is it as bad as that now?” He answered, “There are twenty-two judges of the supreme court in New York state, and nineteen of them are crooked. I can say to each one, ‘I know whose man you are,’ and not one will dare contradict me.”
And then the last story. Dill had just been appointed to his high post in New Jersey, and the day after the news was published, one of his old college friends came to see him, and brought him an offer from E. H. Harriman, railroad magnate, to retain his services in New York for fifty thousand dollars a year, “and you needn’t do any work.” Dill said to his friend, “What case has Harriman got before the Jersey courts?” The friend replied that it was just general principles, the great magnate liked to have friends on the bench. Dill answered, “You tell Harriman—being a fisherman you can explain what I mean—that a fat trout does not rise to a fly.”
Men do not change their skins when they put on black silk robes and mount the judicial bench. A hard-boiled, hard-fisted attorney for labor-smashing employers’ associations, such as Butler of Minneapolis, whose whole political career was an expression of the hateful arrogance of class-greed—when such a man is raised to the United States Supreme Court, he does not alter his nature a particle, but goes right on at his old fighting job and in his old fighting spirit; only now he has the terrible power to say that acts of Congress are null and void. The Constitution gives no such power to nullify the will of the people; and you don’t have to be a “big” lawyer to verify that—you can read the Constitution for yourself, and see. And then watch the use which these ex-corporation-lawyers make of this stolen power! To protect the sacred right of great manufacturing corporations to employ child slaves! And likewise the right of employers to underpay their women slaves! And likewise the right of stock dividends to escape taxation! And likewise the right of judges’ salaries to escape taxation!
But on the other hand, when the rich pass laws in their own interest, and these laws are in contradiction to the Constitution, what happens then? The answer is that the courts uphold these laws—and it matters not how explicit the provisions of the Constitution may be. The supposed-to-be sacred Constitution of the United States provides that “the right of the people to keep and bear arms shall not be infringed”; and yet the legislature of New York state passed a law forbidding a man to keep a revolver in his home, and a New York lawyer fought that law to the highest courts, and was beaten. Here in California the Constitution provides that “every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” How could words be more explicit? And yet we have a “criminal syndicalism” law, under which seventy men are now in jail for their political opinions, no other offense having been even charged against them. I personally, as you know, was arrested and held “incommunicado” under that law; my offense being that I started to read the Constitution of the United States, while standing upon private property with the written permission of the owner, and after notice to the authorities that I intended to exercise my constitutional right.
Let me tell you a curious detail, in connection with that incident. The day after I came out of jail I happened to meet on the street one of the highest judges in this state—I know him because I play in tennis tournaments with his son. The old gentleman patted me on the back and said: “Go to it, my boy, you are absolutely right!” But when I asked him to say that publicly, he didn’t think it would be proper; and when I asked him to join the Civil Liberties Union, and help to protect all citizens in such rights, he didn’t think that would be proper, either. You see how even the most liberal of judges is bound by red-tape and precedent, and leaves it to others to defend the law.
I have seen in Los Angeles a magazine office raided without warrant of law, and the editor, a war veteran, manhandled and thrown into jail—all because the authorities objected to what this editor was publishing. And not only did the courts permit this, they tried the man, and would have convicted him if he had not run away. All over the country such things were done, with the full sanction of the courts. In New York City federal agents arrested a man and held him in a room in an office building for three weeks “incommunicado,” and tortured him until he flung himself out of the window and was smashed on the pavement below. Two other men began holding meetings of protest against this outrage, and they were “framed” on a charge of murder, and the labor movement has so far raised and spent about a quarter of a million dollars to keep them from being hanged. That is the Sacco-Vanzetti case, and you may learn about many as bad or worse from the American Civil Liberties Union, 100 Fifth Avenue, New York.
And how it is with ordinary civil litigation, in which the poor seek justice against the rich? Here I do not have to ask you to take my word, for the scandal is so notorious that even capitalist authorities have been forced to admit it. You see, there are eminent legal gentlemen, occupied in crushing the poor in major ways—the tariff, the trusts, the banking graft, “tight money,” child labor, and so on—but when it comes to a poor widow seeking justice against an employer who withholds her wages, these gentlemen think that the law ought to preserve an aspect of impartiality; it ought not be too obvious that there is one law for the rich and another for the poor. For example, a majestic plutocrat like ex-president Taft, now chief justice of our Supreme Court; when such a weighty personage denounces capitalist justice, you surely will believe what he says! Here he is, speaking before the Virginia Bar Association: “We must make it so that the poor man will have as nearly as possible an equal opportunity in litigating as the rich man, and, under present conditions, ashamed as we may be of it, this is not the fact.”
Notice the delicacy of the phrasing, Judd: “as nearly as possible!” There is nothing “utopian” about our chief justice! Just how possible it is for impotence to be equal to power, is something which has not yet been shown to us; but evidently there is some limit to the possibility, for Dean Pound of the Harvard Law School speaks of the attitude of the law to the poor as “this neglect which disgraces American justice.”
For my part, you understand, I do not expect the poor ever to get equal justice against the rich; it seems to me absurd to imagine such a thing happening. The existence of riches in the world, at the same time as poverty, is in itself the sum of all injustices; and so, if we really care about justice, we must either make the rich as poor as the poor, or else make the poor as rich as the rich, or else strike a happy medium between the two. This last is my solution and I hope to show you how it can be done.