The New Star Chamber and Other Essays The New Star Chamber
by Edgar Lee Masters
If it be remembered that positive law and judicial interpretation proceed from the ebb or flow of human emotions no difficulty can be encountered in explaining those revivals of regulations and restrictions which preceding ages have repudiated. Human nature undoubtedly improves and may always be capable of improvement. But human nature in its essential passions remains constituent and integral. Below these passions are human needs which produce activities of all sorts to obtain the means of life. And this is the rudimentary spring of human action out of which the whole drama of life is produced. As these needs are gratified or repressed; or in brief, as the economic question is regarded so are the laws framed and administered. If in the production of wealth the laws are unequal and if in its distribution the laws are unequal, the administration of these laws must preserve the inequality so established. And so out of the process of acquiring and holding land and personal property; and out of the process of producing and distributing wealth have arisen those laws which struck at human liberty. And at the bottom of these we perceive the play of human passion. Particular desires may exhaust themselves, or be eradicated; others may meet with counter desires and sink into deeper channels only to arise in a succeeding century clothed in some other form. But whenever powerful factions renew the same ends the means of their attainment are likely to be of the same character as those employed before.
What prophetic insight had the author of that apothegm which reads "The love of money is the root of all evil." It is the love of money which strikes at liberty to cripple the economic power of men; and it is the love of money which resorts to dissimulation in order to obscure the campaign that is being waged. For liberty was never attacked under the banner of despotism; but always under the banner of liberty. Religious and political persecutions and the sanguinary administration of internal government have always held aloft the standard of liberty, or the general welfare. Nor is it remarkable now that the sponsors of the "labor injunction" should urge in its defense its efficacy in preserving the liberty of the employer to hire whom he pleases; and the liberty of all men to obtain work without molestation. This is the out-worn sophistry of kings and the complaint and ferocious magistrates who did their will. The labor injunction is what Lord Tennyson called a "new-old revolution." It is the skeleton of the Star Chamber drawing about its tattered cerements the banner of a free people and masking its face with a similitude of the republic. The labor injunction is insidious and plausible. It speaks the language of liberty. It disarms criticism because brought into use in times of disorder; and because it avows nothing but salutary purposes. It has put itself upon such a footing that the irrelevant conclusion is drawn against its enemies that because they are opposed to it they must be opposed to law and order; while those who favor it are the friends of law and order. So that, as in many similar instances, people forget that to overthrow the law to punish a breach of the law is to meet anarchy with anarchy itself. Why should not the lawful way already provided be followed in the punishment of wrong? The spirit which advocates the lawless labor injunction is the same essential spirit which animates the mob. This spirit cannot successfully hide itself behind the high sounding acclaims of law and order. It will be ultimately dragged to the light for every eye to see. When that time shall arrive the fact will be recognized that the same tyrannical purpose which erected the Star Chamber, turned a court of chancery into an engine of lawless power.
Mr. Hallam, who wrote most authoritatively of the English Constitution said that the course of proceeding in the Star Chamber "seems to have nearly resembled that of the chancery." But observe that the same reasoning which supported the Star Chamber fortifies the chancery court today in the use of the labor injunction. The Star Chamber was established to secure good government. The chancery court has resorted to the process of injunction to secure good government. The Star Chamber's powers were directed towards preventing riots and unlawful assemblies. The labor injunction of a chancery court is issued to prevent riots and unlawful assemblies. In the Star Chamber there was no indictment. In the chancery court there is no indictment. In the Star Chamber there were no witnesses, and the evidence was produced in writing and read to the council. So in the chancery court in the trial of contempt for violating the injunction there are no witnesses but the evidence is produced in writing and read to the chancellor. In the Star Chamber there was no trial by jury. In the chancery court there is no trial by jury. In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears. In the chancery court the chancellor may inflict any punishment short of death or imprisonment in the penitentiary, subject to vague limitations arising from inference, and subject to the discretion of a reviewing court. With each embarrassment to arbitrary power the Star Chamber became emboldened to undertake further usurpation. And with each necessity of monopoly the chancery courts have proceeded to meet the necessity. The Star Chamber finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them. It spread terrorism among those who were called to do constitutional acts. It imposed ruinous fines. It became the chief defense of Charles against assaults upon those usurpations which cost him his life. From the beginning it defied Magna Charta in denying jury-trial, in forcing men to incriminate themselves, or what is scarcely less repugnant to reason, to manifest their innocence. While today the chancery courts defy the written constitution of the states and of the federal government in denying jury trials and forcing men to incriminate themselves or to manifest their innocence. At last with the inhuman punishment administered by it to Prynn, Burton and Bastwick, the people long cultivated by the constitutional lawyers of England procured its abolition. Can the chancery courts of this country expect to escape appropriate discipline when the time shall arrive that the eyes of the people shall see that these courts have habitually over-ridden the laws of the land?
For, be it understood, the chancery court in its inception was a regal invention? Its powers, its practices, its code are of pure consuetudinary growth. It began by interfering, through the king himself, with the administration of the law by the regularly constituted courts. It began weak. It grew strong by silent and gradual encroachment. Its suitors multiplied until the king committed its control to his chancellor. Its decisions have always depended upon the conscience of the chancellor. While pretending to limit itself to subjects not triable in the law courts, or where the law courts afforded an inadequate remedy, it grew to take cognizance of matters which were clearly triable by a jury. There has been serious conflict between the chancery courts and the law courts from the time of Sir Edward Coke to this day. But notwithstanding doubts as to the precise powers of the chancery courts it is perfectly sure that they never had jurisdiction of crimes; or to pass upon torts; or trespasses, except under very limited regulations; and never in short had jurisdiction to pass upon any subject where the law courts furnished an adequate remedy, or where jury trial was a necessitous and constitutional mode of examination. For a chancery court is not equipped with a jury. Hence where it assumes to adjudicate subjects outside of the domain of its jurisdiction, jury trial falls, not because it has gone outside of its sphere as to the subject, but because it has retreated into its sphere as to the procedure. This is all that can be made out of a refusal of a jury trial in contempt proceedings. It is rare dissimulation which countenances a theft of jurisdiction on one hand, but insists upon the other hand in a strict regard for the jurisdictional method of dealing with the subject matter after the theft. The man who stole meat but refused to eat it on Friday is the analogue of the chancery court which denies a jury trial of a charge of disobeying a labor injunction, on the ground that a jury trial is not an adjunct of a chancery court.
Now as to the subject-matter of the extraordinary injunctions resorted to by the chancery courts in the last decade it must never be forgotten that it is purely economic. Between the employer and the employee the essential question is economic. The employer wants labor cheap; the employee wants it dear. The conflict between these desires is an aspect of industrial competition. When these desires cannot be compromised into harmony the result is a strike. We then have the following history of things preceding the issuance of a labor injunction: First a dissatisfaction on the part of the laborers with their wages or terms of employment, which may be well or ill founded; second, a simultaneous quitting by the laborers of their employment; third, some of these laborers go into the streets, in behalf of all, to notify other men who would take the places deserted that there is a strike and why it was resorted to, and to circulate hand-bills requesting men not to take the old places and thus break the strike. There may be clashes on the street resulting from all the countless circumstances which attend a time of inflamed feelings. And fourth, the employer either cannot get any help, or can get so little help that his business is stopped. Now, to analyze the character of these acts it is obvious that no law forbids any man from being dissatisfied with his terms of employment, whether he does so reasonably or unreasonably. No law forbids a man or body of men from quitting their work either singly or in a body. No law prevents men from being in the streets. No law prevents them from talking, or from circulating hand-bills which contain no malicious defamation. So far then every act done is legal. If these men resort to violence or crime of any sort then they are amenable to a good many different laws -- but only in a criminal court and not in a court of chancery. But the labor injunction which follows upon the development of the foregoing conditions gathers under its inhibition two general classes of acts. It forbids the commission of crimes and torts because they injure the employer's business. The injury to business is coupled with the crime to dodge the law already referred to that the chancery courts have no jurisdiction over crimes. It forbids the doing of innocent acts like talking, circulating hand-bills and being on the street, because they are said to be the component acts of a conspiracy to injure the employer's business. Thus innocent acts are interdicted; thus conspiracies are interdicted; although conspiracies are crimes of which, as shown, a court of chancery has no jurisdiction. And so innocent acts are interdicted because they relate to the commission of a crime -- the alleged conspiracy -- and the crime -- the alleged conspiracy -- is interdicted because it injures business. This is precisely the sort of juggling that the patrons of the Star Chamber employed.
But does the fact that a crime injures business furnish legal warrant for enjoining its commission? Burglary, larceny, arson, forgery, cheating, counterfeiting and many other crimes injure business just as much as a strike does; and yet no one pretends that these crimes can be enjoined by a court of chancery. Such a pretense violently incurs the organic law which has thrown about every man charged with crime the right to have it specifically set out in an indictment; to meet the witnesses face to face, and to have the question of fact of his guilt or innocence passed upon by a jury. But if a court of chancery enjoin the crime and some one is supposed to have committed it the chancery court insists upon trying the man charged upon affidavits and without a jury. Hence courts of chancery either have no power to enjoin such things, or having enjoined them must proceed in dealing with them according to the constitution relating to such subjects. If courts of chancery cannot in dealing with such things afford indictments, witnesses and juries then it cannot have power to deal with them at all; because the constitution provides for an indictment, for confrontation of the witnesses and for jury trial in the most absolute terms. And to say that a court of chancery may enjoin crimes which injure business, is to say that it has jurisdiction of all crimes against the rights of property and of all crimes which indirectly affect property rights, which is absurd. No one carries the argument that far. For if it should be carried that far then the criminal courts would yield to the chancery courts, and the constitution would be so palpably nullified that no one could be befooled on the subject. So then, to recapitulate, the chancery courts have no power over crimes of themselves; they have no power over crimes because they injure business, for the incident of injury to business is not distinctive of those acts prohibited by labor injunctions, but pertains to many crimes and wrongs; and therefore nothing has been added to the crime itself which gives the chancery court power over it. On this point the defender of labor injunctions must either show that the offenses prohibited by labor injunctions are peculiar in their injury to business or property interests; or he must admit that such injury flows from a great variety of offenses and so be carried by the force of the admission to the manifest absurdity of asserting that the chancery court may enjoin burglary, larceny, swindling and other crimes. This dilemma leads the defender of the labor injunction to say that while the vitality of the injunction depends upon the theory that the act enjoined is a crime, still that the court does not punish one who has violated a labor injunction for a crime, but for disobedience of the injunction of the court. That is, if men are enjoined from prosecuting a conspiracy and are found guilty of having done so, the court in fining and imprisoning them does so not for having prosecuted the conspiracy but for having prosecuted the conspiracy in disobedience of the court's order. Usurpation and hypocrisy have never been more thinly veiled. A punishment in contempt proceedings for having violated a labor injunction must be either for having done a wrongful act, or for having done a wrongful act in disobedience of a court's inhibition. For an act which is meritorious or lawful can be done by any one in spite of a court's inhibition not to do it. If the court should seek to punish one for doing a meritorious or a lawful act a complete defense to the prosecution would be that the act was lawful or meritorious; and the court could not punish for mere disobedience of an order forbidding the doing of such lawful or meritorious act. No one can deny that if a court has forbidden what the law does not forbid it should and must expect to be contemned. So that as no injunction is worth while unless lawful punishment can be inflicted for disobeying it, the injunction must forbid something which the law forbids, such as the crime of conspiracy. Now if conspiracy were a meritorious thing it would, as shown, be useless to enjoin it, for if it were enjoined it might be done with impunity. It is because conspiracy is wrong that the general law of contempt can be argued to warrant summary punishment where a conspiracy is carried on in the face of an injunction. Is the punishment for the disobedience of the injunction? This cannot be true. Because the doing of a legal act, though enjoined, cannot be punished as a contempt. Therefore disobedience of an injunction of itself cannot be punished as a contempt. It therefore results that the thing punished is the crime. The disobedience is an invention of a dissembling jurisprudence. It is one of those fictions of law in which Anglo-Saxon jurisprudence has been absurdly and injuriously prolific. But the disobedience is not essential. The invariable element is the wrongfulness of the act. The crime or wrong is the basis of disobedience. It is the substance of the disobedience. It interpenetrates the disobedience, however, the subject is viewed.
Generally speaking labor injunctions enjoin the commission of crimes. But this may be stated in another way. They enjoin crimes, such as assaults; and they enjoin innocent acts like talking and being in the streets; because, it is alleged, these innocent acts are done pursuant to a combination to injure the employer's business. So the combination, that is, the "conspiracy," is enjoined; and likewise all acts innocent or otherwise, done in prosecution of the "conspiracy." Comprehensively speaking the labor injunction covers crimes; and essentially speaking it concerns itself with what is called a "conspiracy." The invention of "conspiracy" as applied to strikes is in line with the whole policy of monopoly which quotes scripture for a purpose. Admitting for the time that a combination of men to secure better wages is a conspiracy the charge comes with poor grace from that side of the world which has been in a league against popular rights and equal laws from the dawn of history. So long ago as 1776 Adam Smith declared that masters are everywhere in a tacit but constant and united combination not to raise wages above their actual rate. Is this not the undeniable truth today? John Stuart Mill denounced the labor laws of Elizabeth's reign, passed by a parliament of employers as evincing the infernal spirit of the slave driver. But these injunctions are nothing but a form of labor laws directed to the point of keeping down the rate of wages. Every tariff act is the result of a confederation of manufacturers; and every tariff act injures the business of those who make the tariff profitable. Yet there is no charge of conspiracy and no injunction concerning it. Combinations of capital and the consolidation of corporations injure the business of those who are thereby more effectually preyed upon; yet there is no charge of conspiracy and no injunction concerning these things. Employers are leagued together today under various deceptive names for the purpose of dominating labor. To do this they have contributed large amounts to a common treasury to be used in court proceedings and in legislative halls against labor. This injures the business of the laborer; and yet there is no charge of conspiracy and no injunction concerning it. The Philippine conquest was the result of a compact among the trusts to get trade; and this hurts the business of all not interested; and yet there is no charge of conspiracy as to this! What ethical gnat are these patrons of law and order straining at who conjure with the word "conspiracy" when men strike for better wages? What ethical camels have they not swallowed? What burdens have they not imposed growing out of their "conspiracies" and which they have not moved with one of their fingers?
Nevertheless and in spite of all objections the courts have uniformly held that workingmen may combine for the purpose of bettering their condition. That a body of men may at will, wisely or unwisely, cease their relations with an employer; that they may maintain a peaceable picket and employ peaceable persuasion directed toward preventing men from taking service with the employer. But if these allowable acts inflict injury upon the employers then it is said that the allowable acts become unlawful. They become a conspiracy; because, it is held, that they are done for the purpose of inflicting injury which is an unlawful end. No account is taken of the fact that the ulterior end of the strike is to obtain better wages and that the injury is inflicted as an instrumentality. So that if men for the purpose of bettering their own condition and in the line of labor competition may not inflict injury upon their employer, then the situation simply is, that they may strike, that is, cease to work; but only when it does not injure their employer. But if the ceasing to work does not injure their employer then the employer will be indifferent thereto, and the men must eat whatever bread is given them. On the contrary if the ceasing to work does injure the employer then such act, according to the employer, becomes unlawful. So, it is seen, that in either of these situations the employer is given the whole field of benefit and power and the men are reduced to a condition of industrial impotence. This is the whole of the argument. But while such restrictions upon the conduct of laborers result from the premise of the injury to the employer's business, the employer is held to be privileged to hire whom he pleases and to discriminate against whom he pleases. His discrimination consists in retiring the strikers from the labor market by an injunction; and his privilege follows after when the field is occupied by men who for one reason or another will work at the master's price. Freedom to give work at our own price and freedom to you to obtain work, but only at our price, has been the creed of the monopolist from all times.
Limiting the discussion to a combination of men who do lawful acts which injure the employer and induce him to capitulate and grant the wages asked, it may be pertinently asked what law can be invoked to interfere with such a form of competition? Every merchant is engaged in injuring the business of his competitor. Every advertisement is a persuasion addressed to buyers to forsake one merchant and to deal with the advertiser. Every lowering of price of commodities for sale is an injury to those who have them for sale and who must likewise lower the price or lose custom. Every simplification of production, every elimination of waste, every combination of faculties or devices by which trade is secured injures the business of those to whom these expedients are impossible. The whole domain of traffic under the competitive system is interpenetrated with injury to some and benefit to others. Long hours and low wages injure the business of the laborer. Pauper labor injures the business of the citizen laborer. Leagues of employers inspired by the policy of controlling the labor market injure the business of the laborer. Lock-outs resorted to by employers whether as the result of combination or otherwise injure the business of the laborers. Is it possible then that laborers may not in the course of competition compel their employers to raise wages and lower hours or to accede to any regulation lawful in itself by which wages and hours of service may be presently established and secured for the future? If men can only strike and retire from the competitive field and go elsewhere for work then the employer is relieved of competition.
By organization and the use of courts he has abolished that competition by which he would have to pay higher wages and suffer injury in his business; and has taken the high ground where he can pay low wages without competition and injure the business of the laborers. This is the ultimate substance of the question, stripped of its pretense and its sophistry.
Yet some one asks what shall be done if strikers resort to violence and assaults; if they intimidate and riot and destroy property? This is a simple question. The criminal code expressly prohibits such things, and if they are done the criminal courts will and should punish them. But the very reason that the criminal courts are not resorted to while the chancery courts are is precisely because the employer wants to be assisted in his economic struggle; and is either personally indifferent to these acts except as they bear upon the economic question, or because these acts are not done so extensively or so often as represented. Nero burned Rome and charged the Christians with it. And this subterfuge has been practiced always as a tactical move in a campaign of extermination. For nothing relaxes objection and silences criticism upon usurpation so much as the creation of a condition which strengthens the "Must-do-something" policy. Nothing has helped the employer so much in the plainly lawless and forbidden use of the writ of injunction as that condition of violence which he so loudly deplores. Does the employer produce this condition himself? It has been proven in some cases that he does. But whether he does or not the argument that the constitution in all its requirements should be supported and jealously preserved is not in the least affected. The only hope of liberty is a conscientious regard for its canons, most of which are expressed in the written Constitution of the Republic and the State Republics.
