The Story of Civil Liberty in the United States

by Leon Whipple (more about this book and author)

Chapter 6: Civil Liberty and Labor (1870-1917)
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Subhead Links:

THE power which exercises the greatest control over liberty is economic. It often acts through military and political power,—but it remains at bottom control by those who govern business and credit. That is why the industrial struggle, the “Fifty Years War” of Labor and Capital from 1870 to 1920 involved more numerous and more complex attacks on civil rights than any other conflict in our history. Doubtless, a very small degree of personal liberty has ever been the lot of the wage-worker. But as he gained education and began to organize, he demanded more and more liberty to carry on his struggle for higher wages and better conditions. The record of this conflict would fill volumes; we here outline simply the major facts.

The labor movement has progressed along three lines:—the trade unions, political activities, and the radical propaganda of a small section.

The bulk of the attacks on the civil liberty of the workers has arisen out of conflicts between the unions and employers. The concrete issues have been the right of labor to organize, to strike, to picket and to boycott. The worker needed all the liberties guaranteed in the constitutions:—freedom of speech and assemblage, with the use of public halls and streets; freedom for propaganda presses; protection from unlawful police and military control; and all the hallowed safeguards of criminal justice in the inevitable prosecutions for the exercise of these rights.

Against the workers were lined up the capitalist—employer combinations creating as the workers declared an “invisible government” superior to the constitutions, that could both
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make and enforce its own laws, or control the enforcement of laws long in existence. They bought immunity from prosecutions, or defeated them by long delays and confusion in the courts; and through them plus the respect in which wealth is held, were able to establish their case in public favor, while misrepresenting both the purposes and the acts of the workers. Generally, they acted with a loose understanding through employers' associations, “citizens' committees,” chambers of commerce, all moved by a common purpose.

A third element in the conflict was government. The government was seldom able to remain neutral and by its police function was usually drawn in on the side of the employing class to resist what was characterized as “labor violence;” the employers invoked the laws for themselves and did what they could to prevent legal protection to the workers. They used the military power of the states in strikes and through it enforced the most sweeping restrictions on the workers.1

The struggle has been fought chiefly by strikes, and the methods used to break these constitute conspicuous violations of civil rights. The rights of employers have but rarely been an issue, for those involved have been chiefly those concerning organized vs. unorganized labor, strikers vs. strike-breakers. The history of these strikes is only incidental to our discussion.2

As late as 1874 it could be said, “Strikes in this country have not been very serious nor long protracted.” The first signs of the bitter struggle to come were the “Molly Maguires,” a secret labor organization in the Pennsylvania coalfields. They were a link with the past, for the members, who were mostly Irish, had shared in the Know-Nothing agitation (See Chap. III) and many of their numbers had been draft-resisters, in 1863. Some of the agents used against the “Mollies” had been in the secret service during the Civil War and naturally turned to this new form of warfare. These “Pinkerton Men” and their employers first learned here some of the methods so commonly used later against organized labor. The causes that produced the Molly Maguires and the
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methods used, constituted a variety of violations of civil rights; but as the Mollies often used violence themselves, the whole record is dubious. No details need be given.3

The great railroad strikes of 1877 called “The Great Riots” were uprisings of jobless and hungry men who burned and plundered. They demanded no rights; they wanted bread and work. They were suppressed by State and federal troops. The methods, used at this time for punishing those accused of inciting the riots, the appearance of newspaper distortions of the worker's struggles and the bitterness everywhere aroused by this volcanic outburst, all laid the foundations for further trouble.4 These riots roughly marked the dividing line between the previous peaceful semi-agricultural civilization which was passing and the complex industrial era of today.

VIOLENCE BY THE WORKERS

The only attack on civil rights of others by the workers has been through violence. The have not had power to deny liberty to others by other means. Their violence has been almost entirely directed against strike-breakers, occasionally against the property of employers. This violence is due partly to the instinctive reactions of determined men; partly to the bitterness of the industrial struggle, and partly to the Civil War and the weakened public morale which followed it. After the War, violence was the resort of the Ku Klux Klan in the South, of the private coal and iron police against the Molly Maguires in the East, and of the Vigilantes and “citizens' committees” in the West. The philosophy of the Anarchist in the labor movement encouraged the workers' resort to violence.

The workers, of course, have used violence extensively, though usually only to meet the violence of the employer or to intimidate the strike-breaker. The extent of such violence can not even be estimated. But even when we admit its outrages the total amount is greatly exaggerated. The large majority of such cases of violence have been intimidation and
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minor assaults ending in the police court. The resort to violence is always opposed by labor leaders. And they have been usually successful in checking it. In recent years employing groups have hired spies and agents provocateurs to incite the outbreaks that would let violence loose in order to discredit the strike with the public and the authorities, and to justify their own resort to force.5

The following cases merely show the types:

July 3, 1894, John Kneebone who had been the principal witness for the prosecution against the Union men in 1892 and who had been many times threatened, was murdered in cold blood and broad daylight by 40 masked men who came from the town of Burke…. Four men were deported … the Grand Jury was unable to obtain testimony such was the terrorized condition of the country …. December 22, 1894, a number of nonunion men were called from their beds and deported; and on April 5, 1895, and on other occasions … they entered the bedroom of John Kopf and threatened to kill him…. December 23, 1897, Fred D. Whitney, foreman of the Helena and Frisco concentrator was brutally murdered.6

In 1899 the blowing up in Idaho of the Bunker Hill concentrator by several hundred union miners, resulting in the death of one employee of the company and one miner, started naturally an insurrection. The men seized the railroad train, loaded a supply of dynamite from the company's arsenal and ran the train out on to another railroad's main line. This led to cutting in of United States troops on the ground of interference with mail and inter-state commerce.7

The record of violence in one of the most turbulent trades—that of founder—is given by the President of the National Founders' Association (1908). It consists of nearly too pages of cases of threats, violence, dynamiting, intimidation of boarding-house keepers and deliverymen, and the
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hiring of labor “sluggers.” Many of these are based on affidavits or court records. But this is the extreme statement of the case by employers in an industry noted for the bitterness of its labor struggle. It covers the troubles of four years:

Affidavits, on violence, intimidation, coercion………. 400
Injunctions asked for………………………………………….. 34
Injunctions granted……………………………………………. 34
Approximate contempts charged……………………………… 36
Convictions on contempt charges……………………………. 32

A specimen case follows:

Pickets were immediately stationed around the plant to intimidate new employees … from six to twenty or over being around at opening and closing hours. Threats, intimidating tactics, and slugging were employed. Customers of the firm were stopped and questioned with reference to their business associations with the firm and attempts were made to persuade or intimidate these customers to withdraw their patronage. Union pickets followed our delivery wagons to destination and attempted to persuade men not to handle products, especially those in building trades. Attempts were made to get other workers to refuse jobs on this material. The firm was compelled to enclose its entire property with a high board fence and station watchmen at the gates … to employ guards continuously to watch premises and escort workmen in and out … and to their houses…. Firm was forced to open a boarding house upon the premises to house its non-Union men who feared violence if they attempted to leave the plant.8

About as serious an interference with personal rights as violence is enforced emigration or deportation. Strikebreakers have been frequent victims. Here is a case:

On July 27, 1903, non-Unionists were forced to leave Victor…. Five Austrian miners from Butte had arrived
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… the unwritten law of many Western mining camps that no Italian should be allowed to live in the camps had been strictly enforced. These five men were mistaken for Italians, suspected of being an advance guard of non-union men to be brought into the camp in anticipation of the strike…. Two miners interviewed them and learning that they were not members of the Federation, informed them that they could obtain work as railroad laborers a mile or two outside the town and that they would be directed there. A committee of three miners called at their boarding-house … and the foreigners, carrying their grips, went with them in the direction of Hollywood. With a warning never to return … they were started off down the Florence and Cripple Creek tracks, and the crowd was ordered to go no further. After the five men had gone fifty yards a volley of revolver shots were fired after them.9

In a Michigan copper strike when riots occurred at the mine shafts, “… Many employees of the companies had been sworn in as deputies, but they had no firearms. The strikers overpowered these deputies, took away their badges, and in some cases beat them.”10

VIOLENCE BY THE EMPLOYERS

Violence by the employers has worked indirectly through paid agents and through the State. Its avowed aim has been to defend their property and protect strike-breakers. Often enough the real purpose has been to intimidate the strikers, embroil them with the authorities and then to use the forces of the State to help break the strike. Their own violence was veiled behind the law and often ended in military rule. Before they became so well organized, violence consisted of riots that quickly subsided before the police. Military rule never superseded the courts. The most effective weapon of the “fighting” employer is to have the troops called out. He is thus relieved of all responsibility. Lacking the troops, he has his own agents of violence, while the local police and the courts are usually with him.
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“PINKERTON MEN”

This use of detectives by private employers, “Pinkerton Men,” strike-breakers, gun-men, thugs, “special deputies” or even the state constabulary has been a powerful cause of most violent outrages on the elementary rights of workers. These men often constitute a private army, and in some states were regarded as so serious a menace as to be forbidden by law. Generally, they are paid and housed by the employers, and this relationship is naturally reflected in their acts. Thomas Beet, formerly with Scotland Yard, London, writes thus:

The private constabulary system, by which armed forces are employed during labor troubles has worked untold damage in America. It is a condition akin to the feudal system of warfare, when private interests can employ troops of mercenaries to wage war at their command…. In no other country in the world, with the the exception of China is it possible for the individual to surround himself with a standing army to do his bidding in defiance of law and order…. The conditions I have outlined could never obtain in England. During labor troubles the government looks after the policing and under no circumstances permits the meddling of private detectives…. During a famous strike in a western city … the country rang with details of acts of extreme violence, alleged to have been committed by the strikers…. There were probably instances in which strikers were responsible, but to my knowledge, much of the lawlessness was incited by private detectives who led mobs in the destruction of property.11

The coal mines, especially of Pennsylvania and West Virginia, have been centers of the armed guard system. As early as 1865, in Pennsylvania, a law was passed, permitting railroads and mine owners to appoint their own police, duly commissioned by the Governor. To the number of these, there was apparently no limit; “they could have 1,000 if they wished”. From them grew the infamous “Coal and
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Iron Police” which anteceded the more orderly State Constabularly of today. Other States produced equally lawless types. The strike-breakers of the Baldwin-Felts agency are described as follows in the official report of the West Virginia Mining Commission investigation in 1912:

There emerges clearly and unmistakably the fact that these guards while personally brave men, openly, recklessly, and flagrantly violated, in respect to the miners on Paint and Cabin Creek … the rights guaranteed by natural justice and the Constitution, to every man, however lowly his condition and estate. Many crimes and outrages laid to their charge were found to have no foundation in fact; but the denial of the right of peaceable assembly and freedom of speech, many and grievous assaults on unarmed miners show that their main purpose was to overawe the miners and their adherents, and if necessary, beat and cudgel them into submission. We find that the system employed was vicious, strife-promoting, and un-American. No man worthy of the name likes to be guarded by others armed with blackjacks, revolvers and Winchesters, while he is endeavoring to earn his daily bread.

The difficulty of securing these deputy-sheriffs, often privately paid and obtained from strike-breaking agencies outside the state, and the cost of such service to the employers is told in the Report on the Michigan Copper Strike, 1913. The characteristic methods of these armed guards are shown in this:

Thereupon the Waddell detectives and deputies surrounded the house on two sides and began firing at the inmates. They claimed a shot was fired from the house. When the firing began, there were 15 people in the house, including 2 women and 4 children … 4 men were shot and a baby in its mother's arms was powder-burned. One man was killed instantly, another died next day … one killed while at a table eating supper. The neighbors testified that the deputies had gathered up stones and bottles and had put them around the house to indicate
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that they had been used as missiles against them … the prosecuting attorney denounced it as wanton murder … and the men were indicted for murder in the second degree…. Mary Frazakas was shot in an early morning parade of the strikers (probably by a militiaman).12

A United States Bureau of Labor report on a Pennsylvania strike contains this testimony by a sheriff as to the State Constabulary.

The State Constabulary shot down an innocent man, Joseph Szambos, who was not on the streets but who was in the Majestic Hotel, when one of the troopers rode up on the pavement at the hotel door, and fired two shots into the bar-room … shooting one man through the mouth, … Szambos, through the head…. There was no disturbance of any kind….

One of the troopers jumped off his horse, caught a man by the throat, pulled his collar and tie off, without any reason as I have been told and turned him over as a prisoner to a police-officer…. No charge has been preferred to date (Feb. 26th to March 24th). I kept this man until the afternoon and released him on a cash bail of $25.00.13

J. H. Maurer14 gives other details and C.D. Wright tells of a picturesque uprising of 1,100 unpaid deputies during a miner's strike … their martial adventures and progress in search of their pay, amply justifying the term “mercenaries.”

One use of detectives to instigate such violence that the law might be brought down is given in this testimony before the Industrial Commission of 1901.15

A strike was inaugurated in Vallens' and Co.'s cigar factory…. During the trial (for conspiracy) it developed that the Vallens had entrusted the suppression of the strike to Mooney and Boland's detective agency; that Dittbrenner, in the employ of this agency had pretended to be a cigar-maker, and also pretended he was about to apply to Vallens for work, but permitted himself to be
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dissuaded … joining the strikers … on picket duty. Immediately, he commenced advising violence of almost every description; advised the making of assaults on Vallens' family … to lay for Vallens and maim and disfigure him; he advised clubs, acids, hot irons … even the burning of the plant. In the presence of other strikers he got into a fight with a Mooney and Boland detective, and when apparently getting the worst of it, he called to the strikers for help and got none. In fact, the only violence or attempt at violence shown upon that trial was the pretended fight between two detectives, the one in uniform, the other pretending to be a striker.

These private and mercenary agents have produced “the plant,” “the frame-up,” the “fake confession” and other devices for manufacturing evidence which may convict workers of crime or bring about violence to discredit organized labor. The “labor spy” is essential to many of these achievements, … a detective who joins the union, to secure a knowledge of its plans, and who often attains in the union an office of considerable power. Thus James McParland, first of this profession secured the conviction of the Molly Maguires. He is also credited with securing the “confession” of one Harry Orchard, used in the attempt to convict Moyer, Haywood and Pettibone of murdering the Governor of Idaho. This was picturesque enough to be printed, but the workers declared it was concocted simply to convict the union officials.16 The methods of a “plant” were well revealed in the strike at Lawrence, Mass., 1912.17

Dynamite was discovered in a house on Oak Street, in the Syrian quarter, by the police. Five men and two women were arrested…. Later, dynamite was found in a cobbler shop on Lawrence Street and in a sand-bank…. The cobbler was arrested. The strikers emphatically declared the innocence of those arrested and claimed that the dynamite had been “planted” by some one who wanted to discredit the strikers and make them lose public sympathy…. All cases arising directly from
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the dynamite were dismissed … Jan. 29th, a business man of Lawrence who had no connection with the strikers, was arrested for conspiracy and charged with having planted the dynamite nine days before…. On May 16th, he was convicted of conspiracy to injure by the planting of the dynamite and was fined $500.00.

DEPORTATIONS

The expulsion of an individual or a group from a community by violence was probably first employed by workers to get rid of strike-breakers. But since the nineties, it has been an accepted form of lawlessness, resorted to by “citizens committees,” private detectives, the police and even the State Militia. It is, of course, a violation of constitutional liberties, yet there is no successful recourse to law, even where the members of a mob are known. The deporters usually represent public sentiment and control the local officials.

After a dynamite outrage during a strike at Idaho Springs, 1903, at a meeting of the Citizens' Protective League (an organization of mine-owners and businessmen) a bank president said: “If it is good law for the Western Federation of Murderers (Miners) at Victor to walk five Austrians out of town, it is good law for us…. I now move that we go to the calaboose and there take the prisoners and escort them to the edge of the city limits and tell them firmly to go and never to return.” After some objection from the deputy district attorney on the ground that there was no evidence that the 23 men in jail were guilty, the motion carried with a shout. The guards gave up their keys, and 14 men were deported in an orderly, almost friendly manner…. Some of the men had lived in Idaho Springs several years … four or five had families there. The Citizens' League issued a statement claiming to have protected the miners from violence…. The deported men petitioned Gov. James H. Peabody, praying that “as citizens of this State, you will tender us such protection as will return us to our homes … and that we be guaranteed no further molestation from a lawless association….” The Governor
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calmly replied that until he was called upon by the sheriff or mayor because the civil power was exhausted, he was not empowered to call out the militia…. The Citizens Alliance of Denver passed a companion resolution in the same old formula—“the business men of Idaho Springs acted within that higher and unwritten code to which resort must always be had … when there is no speedy and adequate remedy at law.”

Judge Frank W. Owers granted an injunction restraining each and every member from interfering with the deported men or preventing their return to their homes and business. He said: “The action of the mob—I take pains to use the accurate word—in running out of town with threats of violence, the officials of the miners' union, was sheer anarchy, an outrageous violation of the rights guaranteed by the Constitution to the humblest person.” He also pointed out that the miners' union was under very rigid investigation by the district attorney, while “the other union” (the League) seemed to be escaping investigation.

Judge Owers issued bench warrants for 129 citizens of Idaho Springs, charging them with rioting, making threats, and assault…. Most of these men were arrested, and gave bond for their appearance at $500…. February 8, 1904, District Attorney Thurman entered a nolle prosequi in each case. The attorney who had been engaged to help prosecute said that it seemed that pressure had been brought to bear, and that there was one law for influential citizens, and another for poor people.18

This is one of the few cases in which the whole event is recorded. Members and officers of the Industrial Workere of the World have been repeatedly deported. This organization of migratory workers with a radical philosophy has been, in many sections, practically outlawed, and its members have been denied any pretence of personal liberty. In a strike in Louisiana, against the Santa Fe and Southern Lumber Co.—

Three hundred gunmen seized fellow-workers Charles Cline, the local secretary, and Charles Deeny, and gave
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them a terrible beating and drove them out of town; tore down the tent in which the soup kitchen (for strikers) had been, pulling it down on the heads of the women, and shipped it with a part of the contents of the Union hall to De Ridder, La…. Men drifting into town who had never heard of the union were seized and thrown into jail, brought into court and given the option of going to work for the American Lumber Company, or being run out of town. Mayor Pressly of De Ridder had his resignation demanded because he refused to issue a proclamation prohibiting a mass-meeting.—They tried to run him out of town.19

FREEDOM OF SPEECH AND ASSEMBLAGE

Denial of freedom of speech and assemblage for workers, especially workers on strike, was constant during this whole period. The cases are so numerous that only a few notes are given.20

During the financial depression of 1873–4 the unemployed of New York City were organized to make an impressive demonstration. Permits to pass through the streets and use Tompkins Square for a meeting on Jan. 13th, were secured from the police and the Board of Parks. On Jan. 12th, these were revoked, but the workers not knowing this, began to gather in the Square…. About ten o'clock when they were standing about peaceably, platoons of police rushed in on the unarmed crowd, violently assaulting them with clubs, wounding many and dragging some 30 or 40 off to the station-house.21

The freedom of speech and of meeting were subsequently violated over and over again. The police by menaces and other means, prevented the meeting called in Assembly Hall to protest against the action in Tompkins Square; and again they tried intimidation with the Cooper Institute meeting until at last the aggrieved workingmen and their sympathizers felt as though they had no rights which the municipality was bound to respect.
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The record piles up year by year. Governor Altgeld of Illinois cites this event in an official statement (Nov. 14, 1891).

On Wednesday night … there was a meeting of working people at which there was no breach of the peace and no call for police interference of any kind. Yet Inspector Hubbard forcibly entered with a squad of officers and in a dramatic manner, stopped the proceedings … ordered those assembled to go and get an American flag declaring that unless they did so he would adjourn the meeting, indulging in other threats … and practically breaking up the meeting…. Not a single man was arrested or prosecuted…. The act of the Inspector was an outrage … a clear violation of the law, for which he should have been dismissed. The law guarantees to every person, liberty of speech, the protection of the person and the protection of property; one is no more sacred than the other.”

Strike after strike has witnessed similar attacks on the most elementary rights, and today no strike occurs without such. From 1909 to 1917 the “free speech fights” of the Industrial Workers of the World most dramatically embodied that issue.

When denied the rights to speak on the streets, the I.W.W. have deliberately invited arrest, imported all members available, and filled the jails to overflowing until the cost and annoyance to the community brought concession. This ingenious nuisance was invented about 1909, and used vigorously as at Spokane, Wash., where the city council had passed an ordinance forbidding all street speaking within the fire limits—this being the only district, where workingmen congregated in any numbers. This law was amended to permit religious, bodies like the Salvation Army to hold meetings. James Thompson, an I. W. W. spoke, was arrested, and tried on Nov. 2…. The religious amendment was declared unconstitutional by Judge Mann, but the original restriction was upheld. Then all the local I. W. W. members went out and spoke. They were arrested under another ordinance—
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for disorderly conduct and some were sentenced to jail for thirty days. If one of them said “Fellow-Worker” on the street, he was liable to a fine of $100.00 and costs. Frank Little was declared to have been given thirty days for reading the Declaration of Independence. There were over 100 arrests the first day. Calls for volunteers were answered by 40 from Portland and many from elsewhere. The I. W. W. headquarters was raided. They replied that their plan was to make this as expensive as possible to the tax-payers of Spokane. The prisoners were locked up in school buildings and subjected to unsanitary conditions with rough treatment by the police until 344 sick men were reported as treated. The struggle ended without any clean cut victory either way though the I. W. W. secured the right to talk unmolested.22

Other free speech fights were conducted in 1909 at Missoula, Mont., and Newcastle, Pa…. By 1913 some twenty had been made, lasting from a few days to more than six months. They occurred at Wenatchee and Walla-Walla, Wash.; Fresno, Calif.; Denver, Colo.; Portland, Ore.; San Diego, Calif.; and Lawrence, Mass.

THE SAN DIEGO FREE SPEECH FIGHT

The most celebrated of these conflicts was in 1912, at San Diego, Calif. The causes were general labor troubles and antagonism to the I. W. W. It opened with a petition from eighty-five citizens, mostly business men asking the Council to prohibit street-speaking in certain congested districts. The results were reported to the Governor by a special investigator, Harris Weinstock, a business man of San Francisco. He says:

Public meetings are not permitted in any part of the city unless a permit is granted by the Chief of Police, despite the fact that there is no law requiring a permit. The I. W. W. charge that in recent weeks they have not been permitted to conduct street-meetings, the police justifying their refusal, under the existing circumstances, and by an alleged use of slanderous and abusive language by I. W. W. speakers…. No body of men should be deprived of their constitutional right of free speech beyond
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the legally restricted district, and since there is a law against the use of slanderous language in public places, the I. W. W. should be arrested and punished by due process of law…. Much testimony is that there has been needless brutality on the part of police officers while meetings were being dispersed…. Kilcullen had been assaulted by a group of policemen and brutally handled…. He was not arrested, but picked up on the streets unconscious…. An armed body of men, under the orders of Harry Place, a constable … under the directions of District Attorney H.S. Utley … maintained a guard on the Northern boundary of the county, interfering with the passage of pedestrians and vehicles on the public highway.

Forty-three sworn affidavits were submitted that members of the I. W. W., their sympathizers and others, had been arrested, on the streets or at I. W. W. headquarters, and without being charged with a violation of the law, and many of them without being guilty of a violation of the law, had been taken out of the city by autos a distance of 22 miles, and there subjected to an inhuman brutal treatment by a body of men, part of whom were police officers, part constables, and part private citizens. Local commercial bodies have encouraged and applauded the acts of these so-called vigilantes. The Merchants' Association passed a resolution commending the authorities and citizens' committee on ridding the city of all lawless and undesirable people…. The “Evening Tribune” (April 6, 1912) declared in an editorial: “If the sword of our own law is turned against us, we claim the right, under the unwritten law, to resort to the law of nature.”

At a public inquiry Captain of Detectives Myers testified that although 200 arrests had been made, these had been solely for violating the street-speaking ordinance, no acts of violence had been committed that could be directly charged to the I. W. W., no I. W. W. arrests for drunkenness, nor resisting an officer.

For his bold utterances, A. R. Sauer, editor of “The San Diego Herald” was kidnapped, hurried out of town and a rope placed about his neck. The other end was
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flung over a tree and Sauer was hauled clear of the ground. He was constrained to promise that he would leave San Diego and never return…. If he divulged the names of his captors he would suffer the penalty of death.23

The investigator added that every member of the so-called vigilance committee had laid himself open to criminal charges under the federal law (Sec. 5,508, Revised Statutes). “The question naturally arises—who are the real anarchists,—the real violators of the constitution, these so-called and unfortunate members of ‘the scum of the earth’ or these presumably respectable members of society?”

Outside these organized fights, I. W. W. members have suffered numerous outrages. For example, in Lawrence, Mass. in 1912

Peaceful women went to a meeting, March 1st … returning home about 15 of them were suddenly surrounded by fifty or more metropolitan police officers…. There had been no provocation, nor shouting, even, nor noise…. The clubbing they received was shameful and atrocious…. Not until one of the women, Bertha F. Crouse, 151 Elm Street, had been beaten into insensibility did the thugs in uniform desist…. The beaten woman was carried unconscious to a hospital, and pregnant with new life, this was blown into eternity by the fiendish beating and was born dead, murdered in the mother's womb.24

There was even a movement in Massachusetts at that time to make it a crime for any one to speak in criticism of the military, which had been called out, on the ground that it was an interference with military control. This was intended to silence W. D. Haywood, one of the I. W. W. leaders, but it was scarcely needed.25

By summary action the police have forbidden the I. W. W. to talk in Manchester, N. H. and they are obliged
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to hold meetings across the river. At Wakefield, Mass., the owner of the hall already hired, revoked permission for its use and the strikers were told they could not even conduct outdoor meetings. Even a meeting held within a private dwelling was dispersed by the police, who invaded the home.

On Friday night, July 18, 1913, in Seattle, Wash., a large number of enlisted men from the U. S. Navy, together with U. S. soldiers from the forts, led a riotous and lawless outbreak against constituted authority—said to be seeking vengeance for “an alleged prior assault upon some two or three enlisted men by street speakers who advocated doctrines antagonistic to their ideas of law and order”…. It is persistently contended to the contrary that the one or two enlisted men, intoxicated, attacked a woman speaker on the street…. It is asserted that the crusade for vengeance … has been endorsed by officers of the Navy, and that the men's conduct was actually encouraged by some of their superiors…. The rioters, not only invaded the halls and buildings where the I. W. W. met, but they tore into the Socialists' halls, removed pianos, song-books and lodge paraphernalia, and made a bonfire of it. They then entered a Salvation Army place and continued their lawlessness tearing down mottoes “God Is Love.”

Congressional Record, July 29, 1913.

ILLEGAL ARRESTS AND DETENTION

Illegal arrests and detention are frequent in the history of industrial conflict. The report of the Federal Industrial Relations Committee, 1915, says:

It is charged by the workers that during strikes, innocent men are in many cases arrested without just cause, charged with fictitious crimes, held under excessive bail, and treated frequently with unexampled brutality for the purpose of injuring the strikers or breaking the strike…. The Commission has been furnished with evidence showing that in a number of recent strikes large numbers
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of strikers were arrested, but that only a small number were brought to trial and relatively few were convicted of any serious offense … were as a rule required to give heavy bail … or detained without trial until their effectiveness as strikers was destroyed…. In each of the strikes investigated the charges as made were in essentials substantiated….

In Paterson, N. J…. 2,238 arrests were made charging unlawful assembly or disorderly conduct…. In all, there were 300 convictions in the lower courts. Men arrested for unlawful assembly were held in bail of $500 to $5,000. The right of trial by jury was generally denied. Men were arrested for ridiculous reasons, as, for example, standing on the opposite side of the street and beckoning men in the mills to come out. This was the allegation on which the charge of unlawful assembly was placed against four men, and for which they were sent to jail in default of $500 bail, and although never indicted, the charge still stands against them as a bar to their rights as citizens and voters…. One was fined $10 for permitting strikers to sit on a bench in front of his house…. Not more than $25 worth of damage was done during the entire strike, involving 25,000 workers, and there was no actual violence or attempt at violence on the part of the strikers during the entire strike.26

In the Lawrence strike, 900 arrests were made without warrants and without the right of getting bail.

Sometimes the illegal detention is by guards and detectives who keep imported strike-breakers from leaving their precarious jobs. In a car of miners imported during the “West Virginia strike, in 1912, two guards watched the doors at Philadelphia; at “Washington, when the strike-breakers changed cars they passed through a lane of guards, some armed. Here is the affidavit of James A. Fleming:27

I was assigned to house 56 in Kayton, Kanawha County, West Virginia. Once I tried to lead a break from this house and they threatened me with jail. There was a little Jew boy by the name of Heim…. He had
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been picked up, he said, in New York on the East Side. He was crying night and day and begged the bosses to send him home. They put him in the mines. He was undersized and sickly and couldn't eat. My buddie and I escaped by climbing out the window one night and we never heard anything more about this boy.

EXTRADITION VERSUS KIDNAPPING

A new form of illegal arrest developed in the industrial struggle was the sudden and forcible extradition of labor leaders from one state for trial on charges in a second state, under circumstances which prevented them from exercising their constitutional rights.

The first important case was the seizure of John Moyer, who was wanted for trial along with W. D. Haywood and G. A. Pettibone, all officers of the Western Federation of Miners. This was on a charge of having murdered the former Governor of Idaho, Frank Steunenberg, on Dec. 30, 1905 at Caldwell, Idaho, by exploding a bomb at his gate. Moyer averred, in his petition for a writ of habeas corpus, that he had not been in the State of Idaho for more than ten years and that the Governor of Idaho knew he had not been in the state the day the murder was committed nor at any time near it. The actual events as stated by Supreme Court Justice McKenna were:

A conspiracy is alleged between the Governor of Idaho and his advisers, and that the Governor of Colorado took part in this conspiracy, the purpose of which was “to avoid the Constitution of the United States … and to prevent the accused from asserting his constitutional right under clause 2, section 2, of Article IV…. The agent of the State of Idaho arrived in Denver, Thursday, February 15, but it was agreed between him and the officers of Colorado that the arrest … should not be made until some time in the night of Saturday, after business hours—after the courts had closed and judges and lawyers departed for their homes; that the arrest should be kept secret, and the body of the accused should be clandestinely
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hurried out of the State of Colorado with all possible speed, without the knowledge of his friends or his counsel; that he was at the usual place of business during Thursday, Friday, Saturday; that no attempt was made to arrest him until 11:30 P. M. Saturday when his house was surrounded and he was arrested … thrown into the county jail…. On Sunday morning, the officers of the State, and “certain armed guards, being a part of the forces of the militia of Colorado,” provided a special train for the purpose of forcibly removing him from the State…. He was forcibly put on said train, and removed with all possible speed to Idaho; that prior to his removal and at all times after his incarceration in the jail at Denver, he requested to be allowed to communicate with his counsel, and the privilege was absolutely denied him. The train, it is alleged, made no stop at any considerable station, but proceeded at great and unusual speed, and that he was accompanied by and surrounded with armed guards, members of the state militia of Colorado, under the orders of the adjutant-general of the state….28

Moyer and Pettibone both petitioned the Supreme Court of Idaho for release on a writ of habeas corpus. Their petitions were denied by this court and by the U. S. Circuit court, and the U. S. Supreme Court upheld their refusal on these grounds:29

Even if the arrest and deportation of one alleged to be a fugitive from justice may have been effected by fraud and connivance arranged between the executive authorities of the demanding and surrendering states so as to deprive him of any opportunity to apply before deportation to a court in the surrendering state for his discharge, and, even if, on application to any court, state or Federal … he would have been discharged, he cannot so far as the Constitution or the law of the United States are concerned, when actually in the demanding state, in the custody of its authorities for trial and subject to the jurisdiction thereof … be discharged on habeas corpus by the Federal court. It would be improper and inappropriate
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in the circuit court to inquire as to the motives guiding or controlling the action of the governors of the demanding and surrendering states….30

Justice McKenna (dissenting); In the case at bar, the states, through their officers, are the offenders. They by an illegal exertion of power deprived the accused of a constitutional right…. And Constitutional rights the accused certainly did have. The foundation of extradition between the states is, that the accused should be a fugitive from justice from the demanding state, and he may challenge the fact by habeas corpus immediately upon arrest. If he refute the facts, he cannot be removed…. It is the right to be free from molestation. It is the right of personal liberty in its most complete sense…. No individual could have accomplished what the power of the two states accomplished … could have made two arrests of prominent citizens by invading their homes; could have commanded the resources of jails, armed guards, and special trains; could have successfully timed all acts to prevent inquiry and judicial interference…. At the first instant that the State of Idaho relaxed its restraining power, he invoked the aid of habeas corpus. He should not have been dismissed from court.31

THE ILLEGAL EXTRADITION OF JOHN J. MCNAMARA

On the afternoon of Saturday, April 22, 1911, a requisition for the return to California of John J. McNamara of Indianapolis was presented to the Governor of Indiana. McNamara was charged with complicity in an alleged dynamite explosion in Los Angeles, and with being a fugitive from justice. At 5:30 o'clock of the same afternoon when the higher courts were adjourned and would not again be opened for 36 hours, McNamara was arrested … taken before a police judge, and after having been denied counsel was turned over to the Los Angeles authorities by whom he was rushed out of the city…. McNamara was not a fugitive from justice. It was not seriously contended that he was in Los Angeles at the time of the Llewellyn explosion. The Governor of Indiana made no proper effort to determine whether McNamara
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was a fugitive. The police judge had no proper jurisdiction in the case since the law specifically provides that the accused shall be brought before the circuit, superior, or criminal court. The police and private detectives had no legal right to make the arrest since the law provides that such arrests must be made by a sheriff or constable. The seizure of McNamara's private papers was illegal. The Indiana statutes (Acts of 1905, section 56) define the right of search and seizure. No such act as was exercised by McNamara's abductors is therein permitted, (cf. Fourth Amendment of the United States Constitution.) He was refused the advice of counsel. It is thus certain that in the kidnapping of McNamara and in all attending circumstances a series of flagrant violations of State law and of the Federal Constitution have been committed. (Statement of Victor Berger, congressman.)

An affidavit, by the assistant district attorney of California, sets out a telegram received from W. J. Burns on the 15th of April, week previous to the arrest, which reads as follows:

Chicago, Ills. 4/15/11.

I have arrested and am holding in Indianapolis, Ind. J. J. McNamara.

As I understand the practice in the executive department of California, before a requisition will issue there must be a showing that the party has been apprehended…. In order to obtain that requisition Burns sent this telegram on the 15th of April…. He was not arrested until one week later so that the information was—to use the only correct term—a lie. A brother of McNamara and this man McManigal were arrested in the city of Detroit. They did not go through the forms of extradition. They simply arrested them, took them into a flat in the city of Chicago, held them ten days, and then carted them to California…. These police officers under the guise of this search warrant for dynamite … drilled into the safe and abstracted the check-books, et cetera…. I went to the court to which the return was supposed to have been made of this search warrant and he referred
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me to the chief of police … and he referred me to the court…. They were not returned by either of them…. The chief of police said: “We will take whatever we please.” (Testimony of Attorney Rappaport, p. 13.)

So far as the taking of this man from Indiana was concerned he was not taken under the forms of law… there is no question about that. (Statement of Congressman Madison of the Committee.)

Ample evidence is at hand that the safe-guards guaranteed by law were flagrantly disregarded and John J. McNamara surrendered without a moment's preparation or opportunity to avail himself of his lawful rights. (Letter of Samuel Gompers, president of the American Federation of Labor.)32

THE CHILDREN'S EXODUS FROM LAWRENCE

A novel form of detention was applied to the children of the textile strikers at Lawrence, Mass. in 1912. The strikers had been sending their children to sympathizers in other cities, to save expense and get them better care. On February 17, one hundred children were sent to New York and elsewhere. Colonel Le Roy Sweetzer, commanding the Massachusetts militia on duty in Lawrence, then issued this ultimatum:

Mr. William Yates,
Lawrence, Mass.

Sir: I herewith notify you and through you the strike committee that hereafter while I am in command of the troops in Lawrence I will not permit the shipping of little children away from their parents to other cities, unless I am satisfied that this is done with the consent of the parents of the said children.

A few days later, the Marshal of Lawrence stated publicly that no more strikers' children would be allowed to leave the city. Two days later, the strikers undertook to send about 100 children to Philadelphia. One of the committee relates the facts:
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We saw the street lined all around the station with police and a company of soldiers marching up and down…. Some of the children tried to get in the station and the police would not allow them…. But when we got in the station there were about forty children, and we bought tickets for those forty children for Boston…. When it came time for the train to start, and I was on the point of going out of the station with two children in hand, when a soldier put a bayonet across the door and said I could not get out…. He wouldn't tell me any reason…. When I got out of the station two policemen grabbed me. They beat me with a club. I saw them take up little children and pick them up by the leg and throw them in a patrol wagon. I saw one of the women put up a little resistance and a policeman grabbed her by the neck and choked her. (Testimony of Max Bogatin.)

I had an auto truck in use by the military department at the station and when they started for the train I formed two lines of policemen and we prevented them from going on the train, and we put them into the auto truck and took them to the police station. (Testimony of City Marshal Sullivan.)33

Five women were held for “neglect of children,” but no case came to trial. In most … a fine of $i was imposed … a number of children were detained, but after the police judge had heard two of the cases, he referred the rest to a committee and all the cases were ultimately dismissed…. March 1, forty or fifty were sent to Philadelphia, with no interference on the part of the police except they secured a list of the names and addresses of all children sent…. It was rather because the sending of the children away from Lawrence seemed an un-American and an unnecessary war measure which hurt the community's pride that vigorous steps were taken to prevent the children going…. The police authorities are entitled to the credit of having acted with sincere good intentions and upon grounds not wholly unreasonable…. The strikers felt that the refusal of the authorities to allow the children to leave Lawrence was a serious interference with their rights. They had undertaken
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in all cases to secure the consent of the parents….34

There is a feeling today however that the police partly in answer to a public demand, overstepped their powers…. Summary restriction of the liberty of the parents to send their children out of town because their purpose is disapproved of or because the authorities feel that it is not necessary, encroaches upon the natural rights of parents to control them.35

Governor Foss of Massachusetts wrote to the Attorney-General ordering an investigation and the taking of any necessary action to assure all citizens free and untrammelled exercise of their rights. No action was taken.

CRUEL AND UNUSUAL PUNISHMENTS

There are nowadays no “cruel and unusual punishments” in the sense of the constitutional prohibition, inflicted by any courts. Plenty of them are inflicted by the police and by officials of penal institutions. Torture is used for disciplinary purposes or to secure confessions from suspects. This cruelty is general and is used against workers as well. Here is an instance in the class struggle:

Among the strikers gathered in by the police (of Paterson, N. J.) was a mother with a nursing baby. She was fined $10 and costs with the alternative of 20 days in jail. She was locked up but the baby was not allowed to go with her. In 24 hours the mother's breasts were filled to bursting but the baby on the outside was starving. He refused to take any other form of food. In a few hours the condition of the mother and baby was so dangerous that Elizabeth Gurley Flynn went to see the Recorder. She told him the baby would die…. He replied, “That's none of my business.”36

110 HOURS IN A STRAIGHT-JACKET

Jacob Oppenheimer, confined in San Quentin penitentiary, California for murder, tells this experience with disciplinary punishment:
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The straight-jacket, made of coarse canvas, was about 4 feet long and on one side had brass eyelets about 4 inches apart. On the inside were two canvas pockets…. The guard ordered me to put my arms into the pockets. Then he wrapped the canvas folds about me and … began lacing it tight across my back. He then jerked me off my feet and flung my face down on the floor. He braced his foot against my back and laced the cord still tighter until my breath came in short, hard gasps…. No conceivable torture can be worse than no hours continuous compression in that canvas constrictor that I suffered … my first experience in the jacket that has killed and maimed many prisoners…. I had not been in it fifteen minutes when sharp, needlelike pains began shooting through my fingers, hands and arms, which gradually extended to my shoulders … within half an hour these pains shot back and forth like lightning. Cramping pains clutched my bowels; my breath pained with a hot dry sensation. The brass rivets ate into my flesh, and the cord ground into my back until the slightest movement, even breathing, was an added agony. My head grew hot and feverish, and a burning thirst seized me which compelled me every few minutes to ask the guard for water…. As the hours and days passed the anguish became more and more unbearable. I slept neither night nor day…. The bodily excretions over which I had no control in the canvas vice, ate into my bruised limbs adding pain to pain. My fingers, hands and arms finally became numb and paralyzing shock stunrfed my brain….

Had I been offered a dose of poison I would have drunk it with gratitude. Thus I suffered for 4 days and 14 hours incessantly…. Released I reeled off to my cell where I sank on my mattress in utter collapse…. I managed to drag off my saturated clothes…. What a sight I beheld. My hands, arms, and thighs were frightfully bruised, and had all the colors of the rainbow. My body was shrivelled like that of an old man and a horrible stench arose from it. I sank down on my mattress and never arose from it for a week….

Prisoners have been killed and crippled for life in the
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jacket. I know of four prisoners who in one year attempted suicide rather than be subjected to its tortures.37

MARTIAL LAW

The year 1892 witnessed the beginning of “state martial law” in industrial conflicts. Militia had been used against strikers as early as 1828, and both state and federal troops were called out in the eastern half of the country in the Great Riots of 1877. Before about 1892, the military was regarded as an extension of the civil power. They assisted the civil officers and the courts to preserve order and protect life and property. The so-called “martial law” meant only that the soldiers were called in as police. It did not mean, as it has come to mean since, the imprisonment of men by hundreds, a trial by military commissions, suspension of the writ of habeas corpus and a supplanting of the courts. At this time, the soldiers had no more right than a chief of police to exercise such powers.38

The assumption of this authority under “martial law” came about from their function of protecting life and property as the employers conceived it. Protecting the strike-breakers brought the strikers and troops into collision. The local civil authorities sometimes favored the strikers and often remained neutral; therefore effectively to accomplish the protection of the strike-breakers the Governor or the commander proclaims “martial law.” The effect is thus stated by federal investigators:

In Colorado martial law has been in effect ten times since 1894. Similarly in Idaho … on several occasions…. Not only have strikers been imprisoned by military courts, but thousands have been held for long periods in “bull pens.” Hundreds have been deported from the State, and so arrogant have the troops become upon occasions that they have refused to obey the mandates of the civil courts….

In West Virginia, during the strike of the coal-miners in 1912, martial law was declared and the writ of habeas
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corpus denied in spite of the fact of a direct prohibition by the constitution of the State, in spite of the fact that the courts were open and unobstructed. Persons outside the military zone were arrested, dragged before military courts, tried, and sentenced under so-called martial law. Upon appeal to the Civil courts … the military authorities were upheld, in spite of the oath of the judges to support the constitution … which provides that—

No citizen unless engaged in the military service of the State, shall be tried or punished by any military court for any offense which is cognizable by the civil courts of the State,

and

The writ of habeas corpus shall not be suspended.

Although uniformly held that the writ of habeas corpus can only be suspended by the legislature, in these labor disturbances the executive has in fact suspended or disregarded the writ. In labor cases the judiciary either disregards the fact that the writ has been suspended by the executive or evades the issue. In non-labor cases the courts have protested emphatically when the executive attempted to interfere. In cases of military operation because of non-labor disturbances, the judiciary has almost without exception protested against the exercise of any arbitrary power …. In labor agitations the judiciary has uniformly upheld the power exercised by the military, and in no case has there been any protest against the use of such power or any attempt to curtail it, except in Montana, where the conviction of a civilian by a military commission was annulled.39

This statement cites the cases of the Kentucky Night Riders when in an almost real insurrection, the writ of habeas corpus was not suspended.40

IN IDAHO

Martial law first supplanted civil processes in industrial conflicts during the strike in the Coeur d'Alenes mines, Idaho,
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in 1892. The Mineowners' Association had secured an injunction restraining the striking miners from interfering with the Association's imported strike-breakers. The Governor issued a proclamation warning the men against even using moral suasion to keep others from working, and threatened martial law. The Frisco mine and mill were shortly after destroyed and several men were killed. Martial law was then declared, the troops arriving the next day. It was claimed that the sheriff and marshals, having been elected by the striking miners would not act against them. General Curtis of the national guard removed them from office and by “Special Order, No. 3” said:

Dr. U.S. Sims, of Wallace, Idaho, is hereby appointed acting sheriff of the county of Shoshone, and is empowered with all the authority of that office under martial law now in force in said county. Dr. Sims was the physician employed by the mine-owners …. Immediately more than $00 men were arrested and thrown into the “Bull Pen”—one at Kellogg and one at Wallace…. Of the $00 some were released on parole, some on bonds, and about 75 were held for two months against most of whom no charges had been made…. Of all who were tried only sixteen were convicted … and those for contempt of court. They would not refrain from moral suasion. The decisions were all reversed by the United States Supreme Court….41

The idea of a military officer appointing a civil officer like a sheriff shows that the only law was armed force.

Seven years later in the second Coeur d' Alenes strike, the military went even further. The trouble arose over a demand for recognition of the miners' union; and the sheriff underestimated the danger. The leaders organized about 1,000 miners, seized powder, put it on a commandeered train, ran it over a different railroad, and blew up the Bunker Hill concentrator. Four days later, federal troops arrived. Governor Steunenberg proclaimed Shoshone County in a state
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of Insurrection. The sheriff and county commissioners were removed from office—a proceeding later approved by the Idaho Supreme Court; and Dr. Hugh France, an employee of the mine-owners, was appointed “agent for the State of Idaho,” a new office. The candidates for county commissioner who had been defeated at the last election were put in office. Finally, Dr. France, assisted by soldiers, arrested some 800 miners and threw them in the “Bull pen.”

… Eight hundred men were taken from the mines in their working-clothes and driven like sheep into a few box cars and an old barn. For 24 hours they remained without food or drink; and for three weeks they were kept in these places, where there was not a bed and not sufficient room for all of them to lie down at the same time. The food was nauseating …. From this inhuman treatment several of the men died, and many contracted diseases which still linger with them…. The authorities were pressed either to prefer charges, try them, and punish them, or to release them. The local officials insisted that as long as martial law prevailed they had no power to act; while the State and Federal authorities insisted they were only to preserve peace and had no power over the men. Thus they held them for months with these evasive excuses….42

Of the hundreds arrested, only fourteen were convicted of any crime, a seventeen year old boy for murder in the second degree, and the others for obstructing the U.S. mails, though the mail train was declared to have been on time the day of the trouble. A justice of the peace named Flannagan, elected by the people, was arrested and held almost five months because he would not surrender his office on demand of the state officers. He was finally released without being charged with a crime. The defense of these acts by the Attorney-General is a remarkable admission

It was almost impossible not to make a mistake in the arrests in the bull-pen. Some persons were arrested by
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mistake and these were released in a few days—a very large number, technically guilty, but not morally guilty were discharged as soon as the situation was discovered. It is sometimes stated that a large number of innocent persons were arrested and detained without warrant … held in custody an unreasonable time…. To have proceeded by complaint before a magistrate would, owing to the nature of the crimes, the large number of witnesses to be examined and the large number of persons involved, have taken a much longer time and thereby occasioned a longer imprisonment, and added greatly to the public expense.43

Governor Steunenberg, asked why he kept men in jail for months, replied: “I do not think it safe for them to have their liberty.” The Governor received judicial absolution from the Supreme Court of Idaho which laid down these doctrines:

(1) That in case of an insurrection, the governor or military commander may for the purpose of suppressing it, suspend or disregard the writ of habeas corpus;44 that the truth of the governor's recital of causes for his acts will not be inquired into or reviewed; that if the local officers fail in their duty to apply to the governor to proclaim an insurrection in existence, he may issue such proclamation without their application.

IN COLORADO

The power of the executive to use troops has arisen both with respect to the President (see below, page 248) and governors.

The usual rule has been that troops will not be ordered until asked for by the local authorities, with convincing proofs of the necessity. An interesting case in 1894 of how the Populist governor of Colorado met this effort to discredit the workers in a local strike should be noted. In response to the appeal of the sheriff, he sent three companies of militia to El Paso County. He also sent the Adjutant-General who reported:
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No person In the county had been charged with any offense in regard to the existing labor trouble…. Neither the sheriff nor his deputies had ever been resisted in any way. I told Sheriff Bowers that the troops were there at his solicitation, on his showing no process had issued from the courts, the military was not subject to his order, and that the facts would at once be made known to the governor.45

The governor promptly ordered the troops withdrawn. When the local authorities fail to call for troops where they really are needed, the courts in Idaho and Utah have upheld the governor sending troops into a district upon his own initiative. The Colorado decision came after suspensions of civil laws, during the Cripple Creek troubles of 1903–4.46

The first arrests were made by the militia on September 10, 1903, when Charles Campbell, H. H. Kinney, and three others were held on the grounds of military necessity. No charges were filed against them. They applied to Judge W. P. Seeds of the district court for writs of habeas corpus … which were issued to Adjutant General Bell and Brigadier General Chase, returnable on September 18…. On the 18th, for return to the writs, General Chase acknowledged that the petitioners were in his custody, but set forth the order of the Governor calling out the national guard in justification…. Judge Seeds decided that it was imperative that the petitioners be produced in court….

September 21, about 90 cavalrymen marched through Cripple Creek, surrounded the Court House … permitting no person to pass unless an official or a press representative. A company of infantry escorted the four petitioners to the court-house and 14 soldiers entered and with loaded guns and fixed bayonets guarded them until the court was called to order … took their seats and removed their hats which was construed as a submission to the court…. September 23, thirty-four armed soldiers brought the prisoners into court…. Eugene Engley stated that the court was no longer a constitutional
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court, but an armed camp, refused to proceed with the military present, and left the court with the other attorney for the petitioners…. The court ordered that the petitioners be discharged from custody, deciding that though the military had the right to make arrests, the persons arrested must be immediately turned over to the civil authorities, and commenting on the troops as “offensive to the court … unwarranted and unnecessary … tolerated because it was the national guard …. If I had insisted upon its withdrawal a conflict would probably have arisen, with the entire national guard on one side and a mere posse comitatus on the other.”

General Chase arose and saluting the court, said: “Acting under orders of the commander-in-chief, I must at this time decline to obey the orders of the court.” But later in the day, acting on instructions telegraphed by Governor Peabody, he released the four prisoners.47

A similar case, suggesting the Merryman case during the Civil War (see above, page 135) arose when the same Judge Seeds during this strike ordered Colonel Verdeckberg to release one Victor Poole from custody. Coroner James Doran who attempted to serve the order was forcibly ejected from military headquarters. The military kept Poole in custody, appealing from Judge Seeds to the Supreme Court of the state. While the matter was pending, a charge of assault to kill was brought against Poole and he was turned over to the sheriff. He was tried shortly, before a magistrate, but there being no witnesses against him, he was discharged.48

During the military regime at Cripple Creek Governor Peabody is reported to have declared “There is no martial law in Cripple Creek and there will be none.” A Lieutenant McClelland of the militia declared, when it was pointed out to him that his proceedings were in violation of the Constitution “To Hell with the Constitution. We aren't going by the Constitution.” Assistance to families of the strikers was forbidden except through military channels. Deportations were also ordered by the military.

The arrest and detention by the military of Charles Moyer,
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an officer of the Western Federation of Miners, from March 30 to June 15, 1904, resulted in two important decisions which have since buttressed martial law.49 Mover's petition for a writ of habeas corpus was refused by the Colorado Supreme Court on these grounds:

The governor has the power to call out the militia and his determination cannot be controverted; the militia so called has the right to arrest and detain; a person imprisoned for aiding and abetting insurrection is legally arrested and his detention is legal.50

Justice Steele dissented denying the governor's power saying:

He has no power to arrest a person who may commit a crime. As the privilege of the writ has not been suspended, as the courts are open, as martial law does not prevail, and as no charge has been preferred against the petitioner, he should be discharged.

Moyer brought action for damages against Governor Pea-body and others in the U.S. Circuit Court, claiming that he had been deprived of liberty without due process of law guaranteed by the Constitution, especially the Fourteenth Amendment.51

The Court affirming the general principle that the executive's decision as to an insurrection cannot be questioned and that military officers may lawfully arrest, declared it could not act unless the governor was guilty of wanton abuse of his power. An appeal was taken to the U.S. Supreme Court where the decision was upheld, as it claimed that public danger warranted the substitution of executive for judicial process, and that no rights under the federal constitution had been violated.52

In 1912 the struggle between the striking coal-miners in Cabin Creek, Paint Creek and other West Virginia fields and the armed guards acting for the operators had produced a
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state bordering on civil war. Governor Glasscock ordered out the militia and issued a proclamation of martial law. This was later cancelled but shortly renewed again. The case of one Nance will show how martial law worked. Nance was tried by a military commission for the crime of telling a private policeman formerly in the militia that he had no right to place a man under arrest without a warrant. The incident grew out of a fist fight between an Italian and a Negro. The order of the Governor following the second proclamation reads:

The military commission is substituted for the criminal courts of the district covered by the martial law proclamation, and all offenses against the civil laws as they existed prior to the proclamation of Nov. 15th shall be regarded as offenses under the military law and in punishment therefor the military commission can impose such sentences either heavier or lighter, than those imposed under the civil law, as in their judgment the offender may merit … cognizance of offenses against the civil laws as they existed prior to Nov. 15th, committed prior to the declaration of martial law and unpunished will be taken by the military commission.53

Nance petitioned for a writ of habeas corpus on the facts:

The petitioner, a civilian in private life, having at no time been a member of the military forces of the State … was arrested by the military forces and incarcerated in a military guard-house at the town of Pratt, … under military guard. He was taken before a military commission appointed by the governor and arraigned upon a charge of having violated sec. 143, Code of West Virginia … said offence was charged in the specification and conclusively proven by the evidence to have been committed, if committed at all, on the 7th day of Nov. 1912, eight days before the declaration of martial law of the governor…. He was tried and convicted by the military commission, sentenced to five years in the State penitentiary at Moundsville … the sentence was
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affirmed by the governor and he was imprisoned … at the time of the alleged commission of the crime (and since) the civil courts of the county were in full and undisturbed exercise of all the powers and functions conferred upon them by law.54

The Supreme Court of West Virginia denied the writ basing its decision upon the Idaho and Colorado cases, cited above. Justice Robinson dissented, citing two provisions in the West Virginia Constitution that look conclusive to a layman:

Article I, section 3; The provisions of the Constitution of the United States and this state are operative alike in a period of war as in time of peace and any departure therefrom or violation thereof under the plea of necessity is subversive of good government and tends to anarchy and depostism.

Article III, section 4; The privilege of the writ of habeas corpus shall not be suspended.

In a second important case involving “Mother Jones” and others arrested for helping conduct the strike, Justice Robinson gave this dissenting opinion:

Petitioners were arrested in the city of Charleston on a warrant of a justice of the peace, a civil court, charging them with civil offenses, that of a conspiracy to inflict bodily injury on persons whose names were unknown and other offenses. They were taken before the justice in sight of the court house where the civil courts of the county were open and in exercise of their powers. Instead of giving the accused preliminary examination, and upon the finding of probable cause holding them to answer the grand jury, the justice directed the special constable having them in charge, by endorsement on the warrant to deliver them to the military authorities in the so-called military district. They were so delivered and were about to be put on trial before a military commission … for the same offenses charged before the civil court…. That court in absolute disregard of
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their rights and the law governing it, sent them to the military authorities in a distant part of the county…. This illegal procedure alone entitled the petitioners to be remanded to the civil courts…. Yet it simply illustrates the extreme to which disregard of the Constitution and legal procedure has run. Instead of recognizing the true order of the statute whereby a militia is to aid the civil authorities, the law is reversed and the civil authorities used to aid the military power. Verily, indeed, has the military power been made absolutely independent and dominant in West Virginia.55

Other incidents of this strike, of interest in this connection, are affidavits by the five members of the military commission that although the defendants were guilty of all the charges “there was not a county justice in West Virginia who would find them guilty;” the Judge Advocate's declaration that “This court is not bound by the Code of West Virginia” and the sentencing of one Joe Raines to five years imprisonment for obstructing a train “by words.”56

In sharp contrast to the courts‘which have legalized martial law, students of constitutional law see no authority for it. Stimson says there is no martial law in reality, save in an enemy's country in time of actual warfare. Martial law is the will of the commander, not law at all.

H. W. Ballantine, another student says:

It is believed that there is no warrant in the history of constitutional government for vesting in the governor as commander of the military forces of the State the absolute discretionary power of arrest and as a logical consequence, of life and death, so that his command or proclamation may take the place of a statute, and convert larceny into a capital offence, or going beyond legislative power deprive citizens unreasonably and arbitrarily of life or liberty without review in the courts….

The true view, undoubtedly, is that during a riot or other disturbance, militiamen and their officers are authorized to act merely as a body of armed police with
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the ordinary powers of police officers. Their military character cannot give them immunity for unreasonable excess of force. The governor of the State as commander of militia is merely the chief conservator of the peace and entirely destitute of power to proclaim martial law … punish criminals, or subject citizens to arbitrary military orders.57

THE USE OF FEDERAL TROOPS

Federal troops have rarely been used against strikers and almost exclusively in railroad strikes which interfere with the mails or commerce between states. The use of the U. S. soldiers during the railway strike of 1894 aroused an almost threatening situation in several states involving the right of the federal government to send troops into a state against its will. Several governors protested vigorously, and Waite of Colorado declared that “President Cleveland had no right to make war upon his state.” A squad of federal troops arrested forty-eight of his constituents and took them before a federal judge for trial.58

The most significant controversy arose between President Cleveland and Governor John P. Altgeld of Illinois. Illinois had not asked for federal troops to protect her citizens. But the federal officials in Chicago, judges, district attorney and marshal, appealed for help “to move the mails and enforce the court orders.” President Cleveland without consulting the state authorities ordered troops to Chicago. He justified his act under sections 5298–9 of the Revised Statutes passed in 1861 to strengthen Mr. Lincoln's war powers. They provide:

That when on account of unlawful combinations, assemblages, or rebellion against the authority of the United States, it becomes impracticable in the judgment of the President to enforce by judicial proceedings the laws, it shall be lawful to call for the militia….

That when domestic violence, insurrection, or conspiracies in any State oppose or obstruct the laws of the
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United States or the due execution thereof, it shall be lawful and the duty of the President to suppress such by force.

Governor Altgeld telegraphed the President:

Surely the facts have not been presented to you…. It is entirely unnecessary and, as it seems to me unjustifiable…. The State of Illinois is not only able to take care of itself, but it stands ready today to furnish the Federal government any assistance it may need elsewhere…. I protest against this and ask the immediate withdrawal of Federal troops….

President Cleveland: Federal troops were sent to Chicago in strict accordance with the Constitution and laws of the United States, upon the demand of the post-office department that obstructions to the mails should be removed, and upon the representation of the judicial officers … that process of the Federal Courts could not be executed … and upon abundant proof that conspiracies existed against the commerce between the States….

Governor Altgeld: Your answer to my protest involves some startling conclusions and ignores and evades the question at issue—that is that the principle of local self-government is just as fundamental as that of Federal supremacy. You calmly assume that the Executive has the legal right to order Federal troops into any community in the United States in the first instance, whenever there is the slightest disturbance, and that he can do this without any regard to the question as to whether the community is able to and ready to enforce the law itself…. Inasmuch as Federal troops can do nothing but what State troops can do there … and believing that the ordering out of the Federal troops was unwarranted, I again ask their withdrawal….

President Cleveland: … It seems to me that in this hour of danger and public distress, discussion may well give way to active efforts on the part of all in authority to restore obedience to law and to protect life and property.59
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INJUNCTIONS

One of the repeated grievances of organized labor is that its rights have been invaded in wholesale fashion by injunctions.

It is charged by the workers that the courts by the unwarranted extension of their powers in the issuance of injunctions, have not only grievously injured the workers individually but have by contempt procedure, consequent upon disobedience to such injunctions, deprived the workers of the right, fundamental to Anglo-Saxon institutions to be tried by jury.60

Since early in the eighties there has been a constantly increasing use of the injunction against the rights to organize, strike, and picket. In the mass of material and issues we can only indicate how injunctions have been used to curtail these rights by forcing men to work, by denying the right to a trial by jury, and by curtailing freedom of movement and assemblage.

An injunction is an order by a judge of a court of equity (not a criminal court) forbidding the persons enjoined from doing certain acts that may injure the property of others, especially if the injury is one difficult or impossible to be repaired by an award of damages. Refusal to obey the injunction—that is, the doing of the forbidden act—is contempt of court, and may be punished by the judge who issued it, with a fine or jail sentence. In labor cases the injunction came to be an order forbidding strikers or their leaders from doing certain acts in furtherance of the strike, on the ground that injury to the employers would follow. The workers claim that these anti-labor injunctions are made so broad as practically to forbid strikes. Peaceful acts are enjoined, such as sending telegrams or paying out strike monies, acts not in themselves criminal but for which they can be tried and sentenced by a judge. Through the injunction, the judge becomes a censor over the striker's acts, before they are committed.
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Men are punished not for actual crimes but for not obeying an injunction.

The whole issue is well illustrated by the case of Eugene Debs in 1894, during the railway strike in Chicago of 150,000 members of the American Railway Union in sympathy with a strike against the Pullman Palace Car Company. The union forbade any of its members handling Pullman cars in trains. The strike spread over the entire country and in a few days tied up the traffic of the central and western United States. The federal government interfered on the ground that refusal to haul the trains was an obstruction of the mail and of interstate commerce:

The attorney general (of the United States) indicated that it might be advisable instead of relying entirely upon warrants issued under the criminal statutes against persons actually guilty of the offense of obstructing the United States mails, to apply to the courts for injunctions which would restrain and prevent any attempt to commit such offense … basing such proceedings on the proposition that under the Constitution these subjects were in the exclusive care of the United States … that Federal courts could intervene under general principles of law… and under the Act against conspiracies in restraint of trade, July 2, 1890.61

The U.S. attorney applied to the judges of the Circuit Court at Chicago, and they issued on July 2, 1894, the famous “Gatling Gun” Injunction, the first important injunction against strikers. It reads in part:

To Eugene V. Debs, George W. Howard, and L. W. Rogers, of the American Railway Union, Sylvester Kelliher … (twelve others named) … and to all other persons combining and conspiring with them, and to all other persons whomsoever: You are hereby restrained, commanded, and enjoined absolutely to desist and refrain from in any way or manner interfering with, hindering, obstructing, or stopping any of the business of any of the following named railroads:—
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Atchison, Topeka, and Santa Fe Railroad,
Baltimore and Ohio Railroad,
… (20 others named),

as common carriers of passengers and freight between or among any States of the United States, and from in any way interfering with … or stopping any mail trains, express trains, whether freight or passenger, engaged in inter-state commerce … and from in any manner interfering with any train carrying the mail … any engines, cars, or rolling stock… from injuring or destroying any of the property of said railroads, engaged in or for the purpose of, or in connection with interstate commerce, or the carriage of the mails of the United States; … from entering on the grounds or premises … from injuring or destroying any part of the tracks, road-bed, or road, or permanent structures … displacing or extinguishing any of the signals … spiking any of the switches … uncoupling or in any way hampering the control of cars, etc., … and from compelling or inducing, or attempting to compel or induce, by threats, intimidation, persuasion, force, or violence any of the employees of the said railroads to refuse to perform any of their duties as employe of the said railroads in connection with interstate business … or carriage of the mails; and from compelling … or inducing … by threats, intimidation, etc…. any of the employes of the said railroads … to leave the service of such railroads, and from preventing any person whatever, by threats, etc…. from entering the service … and from doing any act whatever in furtherance of any conspiracy or combination to restrain either of said railroad companies or receivers in the free and unhindered control and handling of interstate commerce … and from ordering, directing, aiding, assisting, or abetting, in any manner whatever, any person or persons to commit any of the acts aforesaid….

And it is further ordered that the aforesaid injunction … shall be in force and binding upon such of the defendants as are named in the bill from and after service upon them of the writ … and shall be binding upon said defendants whose names are alleged to be unknown
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… after the service of such writ upon them respectively by the reading of the same to them or by the publication thereof by posting and printing … and shall be binding upon all persons whatsoever who are not named herein from and after the time when they shall severally have knowledge of the entry of such order and the existence of said injunction.62

(Signed) William A. Woods,
P.S. Grosscup,
Judges.

Comparison of the terms of this omnibus injunction with the charges against the earlier strikers (see above, page 15) will show that the liberty enjoyed by them had not greatly changed, at least in the courts. Debs and others were arrested “for open and defiant disobedience” of the injunction, refused to give bail, and at a hearing, December 14, they were found guilty of contempt and sentenced to three and six months imprisonment. The court held that it could restrain a public nuisance such as it declared this strike to be; that the punishment for contempt was not a denial of the right to a trial by jury because the proceeding was limited to equity cases; and that its jurisdiction arose out of the act of July 2, 1890, against conspiracies in restraint of inter-state commerce.63

The U.S. Supreme Court affirmed the decision May 27, 1895, declaring that trial by jury had not been denied, but basing its conclusions on the general right of the United States to enforce its laws, rather than on the specific authority of the Inter-State Commerce Act.64

Outside the legal doctrines involved, these facts are clear. Debs had committed no crime, and had urged peaceful measures. The charge of contempt was based on the sending of telegrams concerning the strike. The omnibus injunction was so broad that the strike could not be conducted without violating it. Debs claimed the injunction and the arrests broke the strike. An attempt to convict him of crime failed. He and three others were arrested during the strike on indictments
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for complicity in obstructing the mails and interfering with inter-state commerce, but the case was never brought to trial.65

The Report of the Federal Commission on Industrial Relations in 1915 cites the Debs case in illustrating the different attitude assumed by the courts on the same question:

The inconsistency between the decision in the Debs case wherein it is held that the control of Congress over inter-state commerce is so complete that it may regulate the conduct of the employees engaged therein to the extent of enjoining them from going on a sympathetic strike, and the decision in the Adair case wherein it is held that Congress has so little power over the conduct of those engaged in inter-state commerce that it cannot constitutionally forbid employers engaged therein from discharging their employees merely because of their membership in a union. (208 United States Reports.)66

How the injunction may be used to deny freedom of assemblage is shown by one issued by Judge H.P. O'Brien of the Michigan Circuit Court in 1913 restraining miners in the copper strike:

from picketing in or about or in the vicinty of the mines … or on or near the highways used by the employees of said mines… from gathering or parading in large numbers or in any numbers at or in the vicinity of the premises of the said complainants or on the highways over which the employees of said complainants pass to work.

Ninety-nine men were arrested by the militia for violating this injunction and haled before the court for contempt. The Michigan Supreme Court dissolved this injunction but reestablished it later with the significant omission of any restraint upon peaceful meetings and parades.

In the Ann Arbor cases in 1893 the workers claimed that men were practically ordered to work by an injunction. The
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case was decided by Judge William Howard Taft. The men had gone on a sympathetic strike in accordance with a by-law of their union. This was declared inoperative and illegal, and they were directed to return to work or be in contempt of court. They returned and the strike was broken.

THE CHICAGO ANARCHISTS

By 1886 the propaganda of the Anarchists had excited the public mind.67 May 1 of that year had been set for a countrywide demand for an 8-hour day, backed by strikes, and inspired by the success of the powerful Knights of Labor. The entire nation was at tension, dreading an outburst. At this psychological moment came the “Haymarket bomb” in Chicago ending in what labor has always charged was the judicial murder of the so-called “Chicago Anarchists,” members of the International Wbrkingmen's Association. The facts are told by the Governor of Illinois, John P. Altgeld:68

On the night of May 4, 1886, a public meeting was held on the Haymarket Square in Chicago; there were from 800 to 1,000 people present, nearly all of them being laboring men. There had been trouble growing out of the effort to introduce an 8-hour day, resulting in some collisions with the police, in one of which several laboring people were killed (riot at McCormick Reaper Strike, May 3, 1886), and this meeting was called as a protest against alleged police brutailty…. The meeting was orderly and was attended by the Mayor (Carter Harrison, Sr.) who remained until the crowd began to disperse and then went away. As soon as Capt. John Bonfield … learned that the Mayor had gone, he took a detachment of police and hurried to the meeting for the purpose of dispersing the few that remained, and as the police approached a bomb was thrown by some unknown person, which exploded and wounded many, and killed several, among the latter being one Mathew Degan. A number of persons were arrested, and after a time August Spies, Albert R. Parsons, Louis Lingg, Michael Schwab, Samuel Fielden, George Engel, Adolph Fischer,
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and Oscar Neebe were indicted for the murder of Mathew Degan.69

Their dramatic trial began June 21, 1886, before Judge Joseph E. Gary, and attracted international interest. Parsons, the only native American of the group had escaped capture and was in hiding at the opening of the trial, but moved by what he deemed the injustice of the proceedings he suddenly returned to share the fate of his companions. The trial was based on a novel theory of “constructive crime.” A contemporary account declares:

The prosecution could not discover who had thrown the bomb and could not bring the really guilty men to justice, and as some of the men were not at the Hay-market meeting, it was forced to proceed on the theory that the men indicted were guilty of murder because it was claimed they had at various times in the past uttered and printed incendiary and seditious language, practically advising the killing of policemen, etc…. and were therefore responsible for the murder…. Oscar Neebe was sentenced to 15 years imprisonment and all the other defendants were sentenced to be hanged….

The conviction was appealed to the Supreme Court of Illinois which affirmed the verdict on September 20.70 Of this decision The Chicago Enquirer said

The evidence manufactured by the detectives… did not satisfy the higher court, amd dutifully the latter furnished what was lacking…. In short the Supreme Court of our State has made out an entirely new case against the defendants; the original one, it is presumed, was no good.

Application for a writ of habeas corpus was made in behalf of Spies and others to the United States court, but denied, and the denial affirmed by the United States Supreme Court.71 Soon after this Lingg committed suicide. The sentence of
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Fielden and Schwab was commuted to imprisonment for life, and Parsons, Fischer, Engel and Spies were hanged on November 11, 1886. Six years later Governor Altgeld pardoned the three men in prison, giving his reason in part as follows:

It is clearly shown that Ryse was appointed special bailiff at the suggestion of the State's attorney, and that he did summon a prejudiced jury which he believed would hang the defendants; and further that the fact that Ryse was summoning only that kind of man was brought to the attention of the court before the panel was full, and it was asked to stop it, but refused to pay any attention…. The State has never discovered who it was that threw the bomb… and the evidence does not show any connection whatever between the defendants and the man who did throw it. The trial judge said: “The conviction has not gone on the ground that they did have actually any personal participation in the particular act which caused the death of Degan, but proceeds upon the ground that they had generally by speech and print, advised large classes of people, not particular individuals… to commit murder. This case is without a precedent.” No judge in a civilized country has ever laid down such a rule before.

It is shown here that the bomb was, in all probability, thrown by some one seeking personal revenge, that… for a number of years there had been labor troubles, and in several cases a number of laboring people, guilty of no offense, had been shot down in cold blood by Pin-kerton men, and none of the murderers were brought to justice.

It is further shown that much of the evidence was a pure fabrication; that some of the prominent police officials… not only terrorized ignorant men by throwing them into prison and threatening them with tortures if they refused to swear to anything they desired, but that they offered money and employment to those who would consent…. Further that they deliberately planned to have fictitious conspiracies formed in order that they might get the glory of discovering them….
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I have examined all the evidence against Neebe, and it utterly fails to prove even the shadow of a case against him. Some of the other defendants were guilty of using seditious language, but even this cannot be said of Neebe…. It is further charged that the judge conducted the trial with malicious ferocity, that every ruling was in favor of the State… that page after page of the record contains insinuating remarks of the judge, made in the hearing of the jury, and with the evident intent of bringing the jury to his way of thinking…. I do not care to discuss this…. I therefore grant an absolute pardon to Samuel Fielden, Oscar Neebe, and Michael Schwab, this 26th day of June, 1893.72

The final statements of the defendants, while colored by the drama in which they acted are significant of the issues involved. August Spies said to the Court:

Now these are my ideas. I cannot divest myself of them, nor would I, if I could. And if you think you can crush out these ideas that are gaining ground more and more every day… by sending us to the gallows; if you would once more have people suffer the penalty of death because they have dared to tell the truth… and I defy you to show where we have told a lie… I say, if death is the penalty for proclaiming the truth then I will proudly and defiantly pay the costly price! Call your hangman! Truth crucified in Socrates, in Christ, in Giordano Bruno, in Huss, Galileo still lives… they and others whose name is legion have preceded us on this path. We are ready to follow….

Spies' last words were:

There will come a time when bur silence will be more powerful than the voices you strangle today.

The memory of the Chicago anarchists is still a profound inspiration to large masses of laboring people, and November 11 every year is marked with solemn memorial services for them.
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THE COURTS AND THE WORKERS

The administration of the law as it concerns the constitutional rights and personal liberties of the workers was attacked as defective and partisan to the interests of property, throughout this period. The best statement of this view is in the principal report of the Commission on Industrial Relations (1915, pages 38–61).

With regard to the federal courts it is startling and alarming to citizens generally, and in particular to the workers, to learn that the consensus of federal decision is to the effect that the section of the Constitution defining the rights of citizens (The Bill of Rights) apply only to federal jurisdiction and in reality protect the citizen only against the action of the federal government. The only sections protecting the citizens under ordinary circumstances are the thirteenth amendment, prohibiting involuntary servitude, and the fifteenth protecting the right to vote.73

With the “bills of rights” of the states, the situation as far as the workers is concerned is somewhat different, since in many jurisdictions these have been used on numerous occasions to afford substantial protection to them in their personal rights. The workers call attention particularly, however, to the long list of statutes, city ordinances and military orders abridging freedom of speech and press which have not been interfered with by the courts, and when tested have almost uniformly been upheld by the state and federal courts. They also point to the grave injury done to the, worker, individually and collectively, by the thousands of arrests that have been made in labor disputes with no just cause and with no relief from either the courts or the executive; to the denial upon numerous occasions of the writ of habeas corpus; to the fact that where workers have been grievously injured, brutally treated, or interfered with ki pursuit of their guaranteed rights by other classes of citizens or officials, the courts have not interfered and' the perpetrators have gone unpunished.”
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Commission on Industrial Relation (1915) Report I, pages 47–49.

Other grievances against the courts complained of by the workers are that biased juries are selected to try labor cases and that the law's costs and delays often make it impossible for them to secure justice because they cannot afford the time or money required to take their cases to the highest courts.

To sum this up we quote from the Report of the Committee on Industrial Relations On Justice and Liberty, page 97:

When governmental institutions are thus corrupted and used as instruments of oppression men can only resist with such power as they have, not alone for the protection of themselves and their families but for the preservation of the fundamental rights of themselves and their fellow-citizens. Resistance to the usurpers of governmental power and to those who pervert to base uses the official power with which they are clothed was made the key-stone of the American nation, and Abraham Lincoln on a most solemn occasion said:

“If by mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view justify revolution… certainly would if such a right were a vital one.” (Inaugural, March 4, 1861.)

The grave danger in the United States is that on account of the enormous area and the sense of isolation of each section as regards the others, the encroachment upon fundamental rights and the subversion of local government will be permitted to gain ground without the effective protests of the entire nation until the liberties of all citizens are hanging in the balance.
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NOTES

1 The purely legal struggles of labor, and the progress of labor legislation with respect to picketing, boycotts, combinations, and so forth are not treated in this study, save as injunctions may affect civil liberty, and as illegal arrests may deny legal rights such as peaceful picketing. Labor and the law may be studied in J. R. Commons, Trade Unionism and Labor Problems; Commons and Andrews, Principles of Labor Legislation; G. G. Groat, Attitudes of the Courts to Labor Cases, Columbia Studies, XLII; Harry W. Laidler, Boycotts and the Labor Struggle; F. J. Stimson, Handbook of the Labor Laws in the U. S. Massachusetts Department of Labor, History of Important Labor Cases, Bulls. 70, 190; E. E. Witte, The Courts in Labor Disputes, Annual reports of the U. S. Bureau of Labor Statistics; Decisions of the Courts on Labor, Library of Congress, References on Boycotts and injunctions.

2 The story of labor itself, from the organization of the first national union of importance, The Brotherhood of the Locomotive Engineers (August 17, 1863), through the Knights of Labor, The Farmers' Alliance, The American Federation of Labor, down to the Industrial Workers of the World, can be studied in Commons, et al., History of Labor in the U. S., II, passim.; R. F. Hoxie, Trade Unions in the U. S.; C. D. Wright, Battles of Labor; T. V. Powderly, Thirty Years of Labor; James C. Sylvis, Life of William Sylzns; Helen Marot, American Labor Unions; Morris Hillquit, History of Socialism in the U. S.

3 F. P. Dewees, Molly Maguires; Rhodes, “Molly Maguires,” American Historical Review, XV, 547; Commons, History of Labor, II, 181–185; Allan Pinkerton, Molly Maguires and the Detectives.

4 E. W. Martin, History of the Great Riots; C. D. Wright, Industrial Evolution, pp. 201–301; Ohio Bureau of Labor, First Annual Report; Allan Pinkerton, Strikers, Communists and Tramps.

5 Robert Hunter, Violence and the Labor Movement, studies the use of violence by labor and by employers, anarchy (chap. vi, “Johann Most in America”) and syndicalism (x. “The Newest Anarchism”). Chap. xi, “The Oldest Anarchy,” is a statement of the use of violence against both workers and government that includes many violations of civil liberty since 1886, with a good bibliography.

6 Samuel H. Hays, Attorney-General of Idaho, Report on the Insurrection in Shoshone County.

7 See record in United States v. Louis Salla, Idaho Circuit Court of Appeals.

8 O. P. Briggs, A Policy of Lawlessness, a Partial Record of Riot, Assault, Murder, Coercion and Intimidation in Strikes of the Iron Molders' Union, 1904–1907. See account of Strike at St. Paul Foundry Co., May, 1908. For the other side see International Molders' Union of America, History of Conspiracy to Defeat Striking Molders.

9 Carrol D. Wright, Labor Troubles in Colorado, p. 149.

10 United States Bureau of Labor, Bulletin 139, pp. 43–44. For other details see Charles E. Russell, These Shifting Scenes; F. Dell, On Dynamite,” New Review.

11 Methods of American Private Detective Agencies, Appleton's Magazine, VIII, 444, October, 1906. See House Reports 2447, 52nd Congress, 2nd session, Employment of Pinkerton Detectives; House Miscellaneous Documents, Number 335, 52nd Congress, 1st session.

12 United States Bureau of Labor Statistics, Bulletin 139, p. 69.

13 United States Bureau of Labor, Report on Strike at South Bethlehem, Penn., pp. 40–41.

14 J. A. Maurer, Constabulary in Pennsylvania; C. D. Wright, Labor Troubles in Colorado.

15 Industrial Commission of 1901, Testimony of Geo. J. Thompson, VII, 719.

16 Confessions and Autobiography of Harry Orchard, 1907; C. D. Wright, Labor Troubles in Colorado, pp. 169–191, gives a “frame-up” and fake confession; A. W. Ricker, Spies in the Labor Unions, covers the same points; Morris Friedman, The Pinkerton Labor Spy, gives an intimate picture of such spies with quotations from reports purporting to have been made by Pinkerton operatives, as members of miners' unions in Cripple Creek, Colorado, and even as union officers.

17 Charles P. Neill, The Strike at Lawrence, Senate Document No. 870, 62nd Congress, 2nd session. In this case a later prosecution of the officers of the woolen mills was undertaken but without convincing results.

18 Wright, op. cit., pp. 152–159 (condensed).

19 International Socialist Review.

20 A fuller discussion of this problem with cases is given in chapter VIII.

21 John Swinton, Appeal to the Legislature, Albany, March 24, 1874; Hillquit, History of Socialism, p. 200. Similar events took place in Chicago.

22 International Socialist Review, December, 1909; March, 1910.

23 Harris Weinstock, Report on the Disturbances in San Diego (condensed).

24 C. P. Neill, Report on the Lawrence Strike, Letter of Strike Committee.

25 The Right of Free Speech at Lawrence and Legal Aspects of the Lawrence Strike, The Survey, March 9, 1912, p. 509.

26 Report, p. 55. See Neill, Report, pp. 59–62 for tables of arrests.

27 John W. Brown, Constitutional Government Overthrown, p. 56.

28 Statement of the facts in the dissenting opinion of Justice McKenna in Pettibone v. G. Nicholls, 203 U. S. Reports 192.

29 In re Moyer, 12 Idaho Reports 250; in re Pettibone 12 Id. 264; see 118 Am. State Reports 214. See Hyatt v. Corkran, 188 U. S. 691.

30 Pettibone v. Nicholls, 203 U. S. Reports 192.

31 Pettibone v. Nicholls, 203 U. S. Reports 192.

32 All the above are from the Hearings on House Resolution No. 6, May 29, 1911.

33 Hearings Before a Congressional Committee, House Document No. 671, 62nd Congress, 2nd session, pp. 177, 304.

34 Report of the Agent for the Massachusetts Society for the Prevention of Cruelty to Children, The Survey, April 6, 1912, p. 71.

35 James P. Heaton, “Legal Aspects of the Lawrence Strike,” The Survey, July 6, 1912, pp. 508–509. The general facts of this strike will be found in C. P. Neill, Report on the Strike of Textile Workers, in Lawrence, Mass., Senate Document No. 870, 62nd Congress, 2nd session. November 1, 1913. In the copper strike in Michigan children were sent away without interference.

36 International Socialist Review, June, 1913, p. 850.

37 Mother Earth, VIII, 145.

38 Henry W. Ballantine, “Martial Law,” Columbia Law Review, XII, 529–534. See also Resolution 31, House Military Committee, 56th Congress, 1st session; “Military Law in Colorado,” Army and Navy Journal. For the whole problem see Winthrop, Military Law and Precedents, Century Digest, XXXIV, secs. 6, 44; Century Digest of Constitutional Law, X, sec. 133; Annotated Cases, 1914-C, 1–56; Ex parte Merryman, Taney's Reports 246; U. S. v. Jackson, Thayer's Cases, II, 2354; Johnson v. Duncan, et al., 3 Martin 530 (Louisiana 1815); Ex parte Moore, 64 North Carolina 80; James A. Garfield, Works (edited by Hinsdale), on Whiskey Rebellion, p. 143; Milligan Case, p. 162.

39 Commission on Industrial Relations, 1915, Monley Report, I, 49, 50, 57, 58.

40 Frank v. Smith (1911), Kentucky Reports.

41 Job Harriman, The Class War in Idaho.

42 Job Harriman, The Class War in Idaho, p. 25.

43 Samuel Hays, Report to the Governor by the Attorney-General.

44 In re Boyle, 6 Idaho 609; 96 American State Reports 286.

45 Carroll D. Wright, Labor Disturbances in the State of Colorado (1880–1904) with Correspondence, Senate Document 122, 58th Congress, 3rd session, p. 78.

46 See B. M. Rastall, Labor History of the Cripple Creek District, Univ. of Wisconsin Bull., p. 198.

47 Wright, op. cit., p. 181–186.

48 Wright, ibid., p. 216.

49 Wright, op. cit., chap. xxv, 229–246, on Moyer Habeas Corpus Case.

50 In re Moyer, 35 Colo. Reports 159; 117 Am. State Reports.

51 Moyer v. Peabody, et al., 148 Federal Reporter 870.

52 212 United States Reports 78.

53 W. H. Glasscock (Governor), General Orders, Number 23.

54 State ex rel. Nance v. Brown, Dec. 19th, 1912, 71 West Va., 519.

55 In re Jones, et al., 71 West Virginia Reports 567.

56 John Brown, Constitutional Government Overthrown; Report and Testimony of the West Virginia Mining Commission, appointed by Gov. Glasscock, Aug. 28, 1912; Senate Report 37, 63rd Congress, 2nd session, Conditions in Paint Creek; “Civil War in West Virginia,” The Survey, April 5, 1913; “Sweet Land of Liberty,” Everybody's, May, 1913.

57 Henry W. Ballantine, “Martial Law,” Columbia Law Review, XII, 529–534. See also Resolution 31, House Military Committee, 59th Congress, 1st session; “Military Law in Colorado,” Army and Navy Journal. For the whole problem see Winthrop, Military Law and Precedence; Century Digest, XXXIV, sections 6, 44; Century Digest of Constitutional Law, X sec. 133; Annotated Cases, 1914-C, 1–56; Ex parte Merryman, Taney's Reports 246; U. S. v.. Jackson, Thayer's Cases II, 2354; Johnson v. Duncan, et al., 3 Martin 530 (Louisiana, 1815); Ex parte Moore, 64 North Carolina 80; James A. Garfield, Works (edited by Hinsdale) on Whiskey Rebellion, p. 143; Milligan Case, p. 162; H. J. Hershey, The Power and Authority of the Governor and Militia in Domestic Disturbances (a partisan brief to the U. S. Commission on Industrial Relations, 1915); Francis Lieber, “Document 79 of War Dept.,” North American Review, November, 1896.

58 John Swinton, Striking for Life, p. 98. Compare with the refusal of the government to support postal rights in the South (1836), or to send troops into Missouri during the Mormon persecutions, or in 1904 to answer the appeal of Governor Peabody of Colorado for troops to suppress strikers, and the threat of troops against the Dorr government (1842), and the use against Coeur d'Alenes strikers (1899).

59 Grover Cleveland, The Government and the Chicago Strike gives the federal case; Swinton, Striking for Life, p. 445 ff., presents the labor view of this controversy. It may be noted that what may be called neutral evidence, The Report on the Strike of 1894, by the special United States Strike Commission, seems to show that there was no violence during the Pullman strike proper and very little at Chicago until the arrival of the troops. The Superintendent of the mails at Chicago declared that the mails were never delayed over twenty-four hours. Testimony brought out that much violence was provoked by agents of the railroads, or drunken marshals.

60 Commission of Industrial Relations, 1915, Principal Report, p. 52. See Commons, Trade Unions and Labor Problems; Hoxie, Trade Unions, pp. 234–235; Stimson, The American Constitution, pp. 48, 51, 65. Protests against government by injunction had become so strong that evidence was gathered in Report and Hearings on Conspiracies and Injunctions, by Judiciary Committee (1900), and in Hearings of the Industrial Commission (1901), VII, 610, 1035, and index.

61 Grover Cleveland, The Government in the Chicago Strike, p. 13. See Swinton, Striking for Life; and E. V. Debs, The Federal Government and the Chicago Strike, for the labor viewwpoint. United States Strike Commission, Report and Testimony on the Chicago Strike, Senate Document Number 7, 53rd Congress, 3rd session, gives official data. W. F. Burns, The Pullman Boycott, and W. H. Cowardine, The Pullman Strike, are picturesque accounts of events.

62 The injunction can be read in full in U. S. v. Debs, et al., 64 Federal Reporter 724–726.

63 Federal Reporter 724.

64 158 United States Reports 564.

65 62 Federal Reporter 828 gives Judge Grosscup's charge to the Grand Jury which returned the indictment; 65 Fed. 4, p. 210, his refusal to quash the indictment.

66 Report of Commission, I, 44, and V, 10, 771.

67 Hillquit, History of Socialism, p. 237, gives a proclamation of the Anarchists.

68 See also C. D. Wright, Industrial Evolution, p. 246; Powderly, Thirty Years of Labor, p. 81, and appendix which gives the platform of the Socialists (anarchists) of that day; F. T. Hill, Decisive Battles of the Law is a story of the trial, and Frank Harris, The Bomb, is a novel about these events. A legal view is in Joseph E. Gary, “Chicago Anarchists,” Century Magazine for April, 1893.

69 John P. Altgeld, Live Questions, II, 34–46, “Reasons for Pardoning Fielden, et al.”

70 People v. Spies, et al., 122 Illinois Reports 1–267.

71 126 Federal Reports 253; 194 United States Reports 279.

72 John P. Altgeld, Live Questions, II, pp. 142 ff., “Reasons for pardoning Fielden, et al.”

73 See above Chapter V, p. 176, for statement on value of the 14th amendment. See President Taft's opinion in commuting the sentence of Warren. The case was Warren v. United States, 183 Fed. 718.

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