Magna Carta, and Other Addresses

by William D. Guthrie

For nearly twenty years and since the Debs case in 1894-1895, the labor leaders, agitators and demagogues of the country have been assailing the courts and denouncing "government by injunction" on the pretense, among others, that the judges denied the defendants in that case any opportunity to be heard, when as a matter of fact, they had the fullest notice and opportunity to be heard, but deliberately elected to disobey and defy the court. Indeed, in no jurisdiction is it true that a defendant is denied the right to a hearing upon the matter of an injunction against him, and the sub-committee has been unable to learn of a single case in which a judge has refused to give the defendant a hearing either upon an application to grant or continue an injunction, or to set one aside. A permanent injunction order is never granted without notice to those affected and an opportunity to be heard; nor is even a temporary restraining order issued without notice of hearing unless the danger of irreparable injury from delay be very grave, and then the order is made returnable at the earliest practicable date, so as to afford the defendants an opportunity to be promptly heard. If a temporary restraining order should be granted improvidently on insufficient papers and upon an ex parte application, it is well known that the order may be and frequently is vacated immediately on the ex parte application of the defendants. Most lawyers are familiar with such cases. The fact is that laboring men have always been afforded a hearing and a day in court in connection with injunction orders, and that no man has ever been punished for contempt by an American court without due notice to him and full opportunity to present his excuse or defense. Indeed, were any man punished without notice and opportunity to be heard, the order for his punishment would be without jurisdiction and utterly void.

I may add that the lawless and violent among the members of labor organizations will not in the end gain any real liberty or advantage for the laboring classes, even if they succeed in abolishing the writ of injunction in labor disputes and with it the power of the courts to punish disobedience as a contempt of court. Destruction of property and assaults upon peaceful workingmen cannot permanently be tolerated in any civilized community. Sooner or later, the government must afford protection in one form or another; otherwise chaos, anarchy and barbarism are inevitable. If injunctions cannot be issued to restrain the violent and protect the property of the innocent and law-abiding citizen, simply because he is an employer or property owner, then resort will finally have to be had to the club of the policeman or the bayonet of the militiaman or regular. It is no use blinking this certainty. That was plainly the alternative presented by the Pullman strike; and President Cleveland then wisely preferred the orderly and peaceful procedure of a court of justice to the police power of the army. Under military rule, the laboring man may receive no hearing at all, and martial law with its arbitrary practices and despotic power will have to be substituted for the regular procedure of impartial courts of justice acting upon full notice to all affected and affording full opportunity to be heard.

The New York Code of Civil Procedure in sections 602-630 has long protected the rights of a striker as adequately as any other system of procedure, state or federal, domestic or foreign, and even better than the recent rule of the United States Supreme Court, which some labor leaders are acclaiming as a boon. Lest we forget, it may be useful to recall the exact language of section 626, which has been the statutory law since 1895. It is as follows: "Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge or justice who granted the order, or who held the term of the court where it was granted; or to a term of the appellate division of the supreme court. It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect."

As is well known to all lawyers, a restraining or injunction order is never granted by a state or federal court in New York without notice to the defendants except when proof is submitted to the judge by affidavit or verified complaint which shows that, unless the defendant be immediately enjoined, irreparable loss or damage will result to the applicant before the matter can be heard on notice. If the court has sworn proof thus submitted to it that the defendants are threatening immediate injury to person or destruction of property, it is the duty of the judge—and may it ever be the duty of every American judge—to issue an injunction without delay, for delay in such a case would in most instances work a complete denial of justice.

If our system of equal laws impartially administered is to endure, the courts must continue to shield and protect the individual by means of injunction orders, and they should not be deprived of the power of exercising one of the most beneficent remedies afforded by any system of laws and one indispensable to the due and satisfactory administration of distributive and equal justice.

Some typical examples of misrepresentation of our courts by leaders of public opinion will be recalled in connection with the Tenement House Tobacco case, the Bakers case, the Ives case, and other cases involving so-called social legislation.[57]

When Mr. Roosevelt's statements in regard to the Tenement House case were recently challenged by four lawyers, including Senator Root, Mr. Milburn and Mr. Marshall, as being inaccurate and likely to mislead the voters of the state, he made no correction whatever, but urged the people to accept his statements and those of a settlement worker instead of the record of the case before the Court of Appeals. This incident will serve to show the difficulty of combating such inaccurate statements, which are given the utmost publicity by the press throughout the country, whereas the refutation is generally ignored. A report of Mr. Roosevelt's public comments, when his attention was called to his manifestly incorrect statement of the decision in the Tenement House case, quotes him as saying:

"I am informed that these four gentlemen attacked the statements as being contrary to both the facts and the law. The first was the case of the tenement-house cigar manufacturers. Now I will read to you what is said by one of the women who knows the conditions of tenement-house life as few other women, and as hardly any man, knows them, by Florence Kelly in a book called 'Some Ethical Gains through Legislation,' and I cordially commend to Mr. Root and his associates who signed his protest to study that book and to ponder what is meant by the word 'ethical' in connection with legislation. Of the Jacobs case, to which I referred, Mrs. Kelly says: 'To the decision of the Court of Appeals in the case In re Jacobs is directly due the continuance of the tenement manufacture and of the sweating system in the United States and its present prevalence in New York.' That is the statement of a woman who, as regards knowledge of tenement-house conditions, knows so much more than those four great corporation lawyers that her little finger is thicker than their loins when you come to study what they know and what she knows of the subject of which they have ignorantly presumed to speak."

And yet all that these lawyers did was to point out the inaccuracy of Mr. Roosevelt's statements as to what the courts had held, and to suggest that this inaccuracy would be demonstrated by reference to the records of the courts, which are open to all who care to take the trouble to ascertain the truth.

It should be recalled in connection with any fair and candid consideration of the Tenement House case that the constitutional convention of 1894 had ample opportunity to change the rule in that case if it had then been thought to interfere with the attainment of "social justice." Although the subject was called to the attention of the convention, it was deemed advisable to make no change. The rule is reasonable and well-settled in the interpretation of constitutions and it was well known to the distinguished members of that convention that "where a clause or provision in a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted."