The American Judiciary

by Simeon E. Baldwin

Then came the Whiskey Rebellion in Pennsylvania. The statutes of the United States[Footnote: United States Revised Statues, 5299.] provide that if their courts meet with opposition of a serious nature, the President may use the army or call out the militia of one or more States to restore order. Opposition to the enforcement of the revenue tax on whiskey in 1794 called for the first exercise of this power. Marshals were resisted in serving process, and several counties were in a state of insurrection. Washington sent so large a force of troops to suppress it that the rioters vanished on their approach, and there was no further obstruction of the ordinary course of justice. The total expense to the government in this affair was nearly $1,000,000.[Footnote: Wharton's "State Trials," 102.] In 1799, somewhat similar opposition arose in the same State against the enforcement of the house taxes laid by Congress. President Adams here also sent a sufficient force of militia to suppress it.[Footnote: Ibid., 48, 459.]

In 1839, a general combination was formed among the tenant farmers in New York holding long or perpetual leases from manorial proprietors to resist the payment of the stipulated rents. In several counties the greater part of the land was occupied under such a tenure. The design was to compel the landlords to sell to the existing tenants at a price fixed by public appraisal, or else that the State should take the lands by eminent domain and dispose of them to the same persons on reasonable terms. Sheriffs were forcibly prevented from serving writs in dispossession proceedings. One who took with him a posse comitatus of five hundred armed men, a hundred of whom were mounted, was met and turned back by a larger band, who were all mounted. The Governor was finally compelled to issue a proclamation against the "up-renters," as they were called, and to protect the sheriff by a large body of militia. Put down in one county, the movement soon reappeared in others. Disguises were assumed, the rioters figuring under Indian names and wearing more or less of the Indian garb. Three hundred of them, with twice that number not in disguise, prevented a sheriff from levying an execution for rent on tenants upon the Livingston manor. For six years the contest went on in several counties. Several lives were lost on both sides. Sheriff's officers were tarred and feathered and their writs destroyed. Of the rioters many were arrested and prosecuted from time to time and some convicted. Five were sent to the State's prison for life. Two were sentenced to be hanged. The State used its militia freely to defend the sheriffs, at a cost in one county of over $60,000, and in 1845 a series of prosecutions and convictions, resulting in over eighty sentences at one term of court, broke the back of the insurrection. It died half-victorious, however, for an "anti-rent" Governor and Lieutenant-Governor were elected the next year, and several statutory changes in the law of leases which the malcontents had desired were soon afterwards enacted.[Footnote: See Paper by David Murray on the "Anti-rent Episode in New York," Report of the American Historical Association for 1896, I, 139.]

During the period of reconstruction in the Southern States, following the civil war, the courts were repeatedly broken up by violence and the service of legal process resisted, in some instances by authority of the military Governor.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495, 496, 509, 544, 565.]

The writ to enforce the judgment of a court of law is called an execution. It is directed to the sheriff or other proper executive officer, and requires him to seize and sell the defendant's property or, as the case may be, to arrest and imprison him, to turn him out of possession of certain lands, or to take some other active step against one who has been adjudged in the wrong, in order to right the wrong, as the judgment may command.

A judgment for equitable relief is not ordinarily the subject of an execution.[Footnote: See Chap. VIII.]

A judgment at law is generally to the effect that one of the parties shall recover certain money or goods or land from the other. On the prevailing party lies the burden of moving to get possession of what has thus been adjudged to be due. This he does by taking out an execution. A judgment in equity is an order on the defendant to do or not to do some particular act. It is now an affair between him and the court. He must obey this mandate or he will be treating the court with disrespect.

To treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. It is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the State. Whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. If, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell. If he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." On this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. If the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order.

It is the sting in the tail of an injunction that makes it especially formidable. The debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. The man who keeps on doing what a court of equity has forbidden him to do does commit one.

A conspicuous instance of the efficacy of an injunction was furnished by the great Chicago railroad strike and boycott of 1894, initiated by the American Railway Union. Mob violence followed. More than a thousand freight cars were burned. Trains were derailed, passengers fired at, and lives lost. The officers of the union, after two or three weeks, wrote to the managers of the railroads principally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[Footnote: United States v. Debs, 64 Federal Reporter, 724, 729.] A temporary injunction was issued against these officers and others by the Circuit Court of the United States in an equitable action brought by the United States under the direction of the Attorney-General. They disobeyed the injunction. Their arrest for this contempt of court promptly followed. This stopped the flood at its source. To quote from testimony given a few weeks later by Mr. Debs, the President of the Union, "As soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike…. The men went back to work and the ranks were broken and the strike was broken up,… not by the army, and not by any other power, but simply and solely by the action of the United States court in restraining us from discharging our duties as officers and representatives of our employees."[Footnote: United States v. Debs, 64 Federal Reporter, 724, 759.] The defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the Supreme Court of the United States, but without avail.[Footnote: In re Debs, 158 U. S. Reports, 564, 600.]

Injunctions not infrequently are granted as an equitable relief against a legal judgment. Summum jus, summa injuria is an ancient maxim of the courts. The foundation of equitable jurisdiction is that courts of law cannot always do justice. One may, for instance, be invited to build a house on another's land, and promised a deed of the site. He builds the house and then is refused a deed. The invitation and promise were by word of mouth. The rules of law make such a house the legal property of the landowner. The rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. If the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right.