The 1900s: Law and Justice: Overview

THE 1900s: LAW AND JUSTICE: OVERVIEW

Changing Population

During the years 1900 to 1909 the United States was fast becoming an industrial society, yet its laws were based on an ideal of an agrarian society. American society was changing tremendously. Between 1901 and 1909 more than eight million immigrants came to the United States, more than twice the amount in the previous decade and more than in any previous decade in American history. By 1910 one of every seven Americans had been born in another country. Even those Americans born in the United States might have felt they now lived in a different country. In 1860 five of every six Americans had lived on a farm. By 1910 nearly half of the American people lived in cities, which had grown rapidly since the Civil War. With a population of thirty million in 1860, the United States had sixteen cities with more than fifty thousand people in them. By 1910 there were ninety million Americans and more than one hundred cities of more than fifty thousand people, and three cities had populations of one million or more.

Economic Change

The economy, whose growth was once fueled by millions of farmers, merchants, and mechanics, now was dominated by a handful of corporations led by men who were shrewd enough to see the changes that would be brought by industrialization and centralization and who were able to exploit these changes. Between 1899 and 1909 the number of American businesses engaged in manufacturing dropped from more than half a million to 240,000. But the number of workers employed in manufacturing increased; the capital invested in these factories doubled; and the value of their products grew from $13 billion to $20 billion. Financiers created holding corporations, which existed only to "hold" the stock of other companies, those that actually manufactured goods or shipped them. The idea of a holding company was new, but it grew rapidly. By 1902 some two hundred of these companies were worth more than $10 million each. These new corporate organizations meant that wealth was concentrated into fewer hands. For example, by 1906 seven men controlled 85 percent of American railroads. Novelist William Dean Howells lamented, "The struggle for life has changed from a free fight to an encounter of disciplined forces, and the free fighters that are left are ground to pieces between organized labor and organized capital."

American Law and the Changing Society

Some law-makers tried to restore the "free fight" to American life, but others regarded any attempt by the state to regulate economic activity as inherently unfair. For much of American legal history, the basic assumptions were that all men were equal before the law and that the government, either federal or state, should not regulate economic activity. To do so would be to give an unfair advantage to one side or another. But governments had in fact given advantages to some groups: railroads, for example, were private industries that had brought the public the benefit of transportation, yet they had also been given generous land grants and subsidies to encourage their growth. In the 1880s some states had tried to regulate the rates railroads could charge, and Congress established the Interstate Commerce Commission (ICC) to suggest rates for the railroads. The ICC actually had little power to regulate railroads, even if the men appointed to it had been inclined to do so. In 1890, fearing that large holding companies would buy up all the available independent companies, Congress passed the Sherman Anti-trust Act, which banned "combinations or contracts in restraint of trade." No president until Theodore Roosevelt made much use of the Sherman Act in combating large trusts: in 1895 Attorney General Richard Olney said he would not prosecute "under a law which I believe to be no good."

Tradition and the Law

Olney, though he was a former railroad lawyer, was not simply an apologist for big business. Like many other political and business leaders in the late nineteenth century, he believed that the government should not interfere in the economy. Many lawyers and judges in this era believed that law flowed from the customs and traditions of a society and that legislatures could not make laws that violated those customs or traditions. The law could not correct social problems. So when legislatures, responding to pressure from working people, reformers, farmers, and consumers, tried to regulate working hours, child labor, and railroad rates, the courts rejected these attempts to interfere in the natural order. And while the courts were reluctant to uphold the Sherman Act against corporations, it had no such qualms about using it against organized labor. Nor did the courts or governments have qualms about using violence against labor unions: in 1902 labor unions, in fact, were regarded as contrary to the American idea of free competition and individual enterprise. During a 1902 coal miners' strike the president of the Philadelphia and Reading Railroad said that workers should not seek protection in unions or in legislation but in "the Christian men to whom God in His infinite wisdom, has given control of the property interests of the country."

State Laws and Labor

Attempts by the states to regulate working hours or working conditions were resisted as fiercely by the courts as they were by employers. Under the Fourteenth Amendment to the U.S. Constitution states could not deprive any person of life, liberty, or property without due process of law. In case after case the courts interpreted this to mean that states could not limit an individual's liberty to make a contract and that when a state tried to set limits to the number of hours a person worked in a day or a week, the state was infringing on his or her liberty. In Lochner v. New York (1905) the court found that the state of New York had no compelling interest to deprive bakers of their "right" to work more than sixty hours each week. Though in 1908 the court found that Oregon could limit the working hours of women to ten each day, it based its ruling on the belief that women occupied a special place in society and needed the law to protect them. Most men, even in dangerous occupations, were considered to be able to protect themselves. Though some states, including Colorado, tried to protect mine workers, for example, by restricting their working day to eight hours, the mine owners in Colorado ignored the law. The miners at Cripple Creek, Colorado, went on strike in 1903 and 1904, led by the Western Federation of Miners. The mine owners hired a private police force to drive out the union leaders and force the miners back to work, using violence and intimidation. The union leaders in 1905 formed the Industrial Workers of the World (IWW), committed to forming one big union of all working people that would fight, violently if necessary, not only against employers but against all allies of the bosses, including governments and courts.

Labor and the Law

The courts were reluctant to acknowledge the change in economic or working conditions. Having grown up in an era when an employer not only knew all of his employees but was also their neighbor and often their relative, judges were slow to understand the dramatic change in the workplace. Workers and employers were no longer equal in bargaining for wages, working hours, and the amount of work an employer expected in return. A flood of immigration meant that more hands were available if one man, woman, or child's proved unwilling. Every year half a million American workers were injured on the job and thirty thousand died. The United States led the industrial world in the number of industrial accidents every year. Under the common law a man, woman, or child who took on a dangerous job was presumed to know the risks and so could not collect compensation for an injury. Congress tried to rectify this, passing the Federal Employers' Liability Act in 1906. This law covered only railroads that were engaged in interstate commerce, which is subject to congressional regulation according to Article I, section 8 of the Constitution. But in 1908 the Supreme Court ruled the law unconstitutional. The court, however, did not speak with a clear voice: two justices ruled the law unconstitutional; three others concurred in the result but not in the reasoning; two dissented in part and concurred in part; and Oliver Wendell Holmes, the justice most willing to defer to the legislature, dissented. (Congress passed a similar law, applying specifically to railroad workers involved in interstate commerce, after the court struck down this first law. In 1909 Montana also replaced the common law idea of presumed risk with a law mandating employer liability, and other states followed.) In 1908 the court also struck down a law that forbade railroads to fine or fire workers who joined unions. It was up to an employer and employee, the Court ruled, to make a contract, and these so-called yellow-dog contracts (according to the unions, only a yellow dog would sign such a contract) were as valid as any other. Second, the court found that regulating contract conditions for railway employees did not have a direct relationship to interstate commerce.

Labor and the Sherman Act

In 1894 Eugene Debs led a strike by the American Railway Union against the Pullman Company, successfully shutting down American railroads. The Supreme Court found that Debs had violated the Sherman Act by restraining trade between the states. The court used the Sherman Act against labor unions more vigorously than it did against corporations. In 1901 hatmakers in Danbury, Connecticut, struck against their employer, the Dietrich E. Loewe Company. Supporters of the striking workers called for a national boycott of Loewe's hats, which was so successful that the National Association of Manufacturers supported Loewe's legal challenge to the boycott. In 1908 the Supreme Court ruled that this boycott was a conspiracy in restraint of trade and thus illegal under the Sherman Act. Union members were assessed court costs and damages, which amounted to more than $250,000.

Courts and Injunctions

Debs had been charged with contempt of court in 1895 after he ignored an injunction issued by a federal court. The injunction was a sweeping one, issued under the terms of the Sherman Act, which prohibited combinations or conspiracies in restraint of trade, and Congress's mandate to see that the mails be delivered. This injunction, which directed strikers to go back to work, was ignored. By ignoring the injunction Debs and the American Railway Union defied federal law, and President Grover Cleveland dispatched federal troops and marshalls to enforce the law. Similar injunctions would be issued in other strikes, always against the unions or the strikers. The courts, state and federal, generally operated to protect property interests. It was easier for a company facing a strike to convince a judge to issue an injunction than it would be to rally public opinion against workers. Union leaders chafed at this "government by injunction," and some, like the IWW, saw the courts working together with the corporations to prevent workers from organizing. Even more-moderate union leaders found themselves in trouble for violating injunctions. In 1906 the metal polishers' union went on strike against the Buck's Stove and Range Company. Like the Danbury hatters, the strikers called for a boycott of the Buck's Stove and Range Company. James W. Van Cleave, the company president, was also the president of the National Manufacturers Association and understood curjrent thinking on the law. He went to court and convinced a judge to issue a sweeping indictment not only against the boycott but against any discussion of the strike either in the press or in public meetings. Samuel Gompers, the head of the American Federation of Labor (AFL) and one of the more conservative union leaders, ignored the injunction and spoke out in support of the boycott and striking workers. He was sentenced to one year in jail. His conviction was affirmed by the federal circuit court in Washington, D.C., as the boycott violated the Sherman Act, and Gompers's advocacy was part of a conspiracy to restrain trade, the court ruled. This ruling led the relatively conservative AFL to take a more vigorous political role.

The Commerce Clause in Transition

The Constitution gives Congress the power to regulate interstate commerce. But the Constitution does not specify what commerce is or how it can be regulated. The Sherman Act was an attempt to regulate interstate commerce, but in 1895 the Supreme Court distinguished between "direct commerce" and "indirect commerce," ruling that though one company controlled 85 percent of American sugar manufacturing, it was not engaged in interstate commerce because it was manufacturing sugar, not selling it across state lines. In the 1908 Danbury hatters case, though, the Court ruled that strikers who organized a boycott against a hat manufacturer were in fact restraining interstate commerce. This was not just a cynical attempt by the Court to bolster corporate power and to punish workers. The Court was changing its definition of interstate commerce. In 1905 the United States sued the Swift and Armour companies, which controlled 60 percent of American beef production. The companies claimed that they were simply running stockyards in Chicago and thus, like the sugar trust in 1895, were not involved in interstate commerce. Justice Holmes, speaking for the Court, said that "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business." Swift and Armour were engaged in different activities: regulating prices, shipping cattle, and running stockyards and slaughter-houses. Each of these component parts by itself was not necessarily either illegal or subject to congressional regulation. But taken together they formed a "current of commerce among the states," and so Swift's activities were subject to the Sherman Act.

Clarence Darrow: Lawyer of the Decade

Clarence Darrow of Chicago was the most famous lawyer of his time. During the years 1901 to 1910 Darrow grew famous as a courtroom maestro, using eloquence and passion to Stir jurors. He typically defended unpopular people and causes: he had been a railroad lawyer in the 1890s but switched sides to defend Eugene Debs during the Pullman Strike. An ally and law partner of Illinois governor John Peter Altgeld, an outspoken liberal, Darrow was involved with the radical and reform activities in Chicago. He represented the coal miners during the 1902 strike and in 1907 defended Bill Haywood at his murder trial.

Darrow and Changes in the Law

Darrow was a great lawyer. But most lawyers by 1900 were not courtroom artists. The work of lawyers was changing, from defending clients in a courtroom and trying to convince a jury of impartial men of the facts, to working in offices and helping clients negotiate through the intricate details of the law. Darrow was an intellectual who wrote novels and gave lectures on modernist playwright Henrik Ibsen in his spare time. He was also involved in politics, serving in the Illinois legislature and actively supporting the Democratic Party. Lawyers would continue to engage in politics, but the role of lawyers as public citizens, enlightened men able to discuss a broad variety of topics, was all but gone by the time Darrow arrived at the bar. Unlike contemporary members of the legal profession, he was a lawyer in the way Daniel Webster or Thomas Jefferson had been lawyers.

Probation and Indeterminate Sentences

According to the new system, lawyers were not supposed to be mere technicians; the law itself was supposed to be more scientific. This new scientific approach to the law is best illustrated by the change from fixed sentences for specific crimes to allowing judges to determine the appropriate sentence for a particular offender. Reformer Roland Molineux compared the practice of setting a certain sentence for a specific crime to sentencing "the lunatic to three months in the asylum, or the victim of small pox to thirty days in the hospital." In the first decade of the twentieth century the concept of probation and parole were introduced into the American legal system, and by the end of the decade they were both widely used as alternative means of treating offenders. Instead of mandating how many years in prison a criminal should serve to atone for a specific crime, new legal codes left it to a judge to set a maximum and minimum term for a specific individual and then to allow a parole board to review each prisoner's conduct and whether the prisoner was "cured" of his impulse toward crime. The purpose of jail was not to punish but to cure. Judges and prison wardens were to be less interested in punishing crime than in reforming individual criminals. In 1900 six states had some form of probation, but by 1915 thirty-three did, and virtually every state had probation for juvenile offenders. After 1900 state legal codes allowed judges to impose maximum and minimum sentences rather than specifying exact terms for certain offenses. The criminal justice system's interest was supposed to turn from the offense to the offender. Its first task, according to some reformers, was to diagnose each case.

The Path to the Law

The way men became lawyers was also changing (though the fact that most lawyers were men was not). Traditionally, a young man who wanted to be a lawyer would go to work for a lawyer. In return for copying documents and writing out letters, briefs, and reports, all by hand, he would be allowed to study the law books: the eighteenth-century William Blackstone, nineteenth-century commentaries on Black-stone, and the statute books of his own state. After a year or two of this apprenticeship the candidate would take a bar exam, usually an oral quiz administered by a judge. If the judge deemed the candidate worthy, he would give him license to practice law. But in 1870 the invention of the typewriter began to change this system. With a type-writer a skilled typist could type in an hour a manuscript that would have taken the fastest clerk half a day to write by hand. By the end of the century lawyers no longer needed clerks for the drudgery of copying and writing. Women seemed to be faster typists than men, and so women replaced men as the clerks and secretaries to lawyers and other men of business. Women were not expected to become lawyers—in fact, they were forbidden by law to do so. They were expected to remain as clerks or secretaries until they retired or married. Lawyers no longer needed clerks, but young men still wanted to become lawyers. Instead of apprenticing themselves to older, established lawyers, young men now would have to go to law school.

The Study of Law

The way law was taught changed in the decades between the Civil War and 1920. Since the law had been regarded as a craft, one that could be learned through an apprenticeship, it had not been necessary under the traditional system of reading law for a prospective lawyer to have a college degree or even a high-school diploma. In 1904 future Supreme Court justice Hugo Black arrived at Tuscaloosa, Alabama, to begin his studies at the University of Alabama. He was not qualified to enter the academic department, the equiva-lent of an undergraduate college, so he instead entered the law school. Law schools in the first decade of the century raised their standards, but the movement to do so was controversial. The central issue, often obscured behind other equally contentious points, was defining the purpose of studying law. In the first decade of the century the Association of American Law Schools (AALS) was formed for this purpose and to make sure all law schools adhered to a certain set of standards. Typically, the schools that belonged to the AALS followed the "case method" of legal study: by considering actual cases, law students would discover the legal philosophy that generated solutions. This was more than simply learning the law; proponents of the case method recommended that legal studies take at least three years of full-time work. On the other hand, in this decade other law schools, not affiliated with the AALS, emerged to train in the law men and women who had not been to college. These law schools often were run by practicing lawyers (the faculty at the AALS schools tended to be full-time teachers) who used their offices at night to train prospective lawyers. These schools focused on the practical rather than philosophical questions of law.

Conclusion

Just as the country was changing, the law was changing. But lawyers and judges did not always welcome the changes in their society or their profession. In this decade of tremendous change, some embraced progress without fully understanding all of its implications. One of President William McKinley's reelection buttons showed black smoke pouring from a factory chimney. For McKinley the smoke was a symbol of progress. During the decade that began with his reelection, Americans began to understand the cost of this industrial progress, as courts and legislators grappled with the exploitation of women, children, men, and the environment; the rise of corporate power; an increasingly violent labor movement; lynchings of black Americans and mob violence directed against them; and a host of other evils either brought on by industrialization or made more glaring by it. McKinley himself, a gentle and compassionate man, probably did not consider all the consequences of progress. His murder by anarchist Leon Czolgosz in September 1901 may have been one of those consequences.