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Legal Progressivism, the Courts, and the Crisis of the 1890's*

Published online by Cambridge University Press:  24 July 2012

Arnold M. Paul
Arnold M. Paul
Affiliation:
Instructor in History at California Institute of Technology
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Abstract

Reform spokesmen, believing that fundamental issues of social control were involved, hailed the refusal of the judiciary to intervene in the 1880's against state regulation of corporate power. The progressive triumph was short-lived. Reversing the earlier trend, the courts retreated into economic conservatism, but in so doing generated the fierce pressures that were later to explode into new outbursts of legal and social revolt.

Type
Research Article
Information
Business History Review , Volume 33 , Issue 4 , Winter 1959 , pp. 495 - 509
Copyright
Copyright © The President and Fellows of Harvard College 1959

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References

1 Attention has been focused recently on the intraprofessional pathways in the making of this revolution: Twiss, Benjamin R., Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (Princeton, 1942)Google Scholar; Jacobs, Clyde E., Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon Upon American Constitutional Law (Berkeley, 1954)Google Scholar.

2 The term “progressive” or “progressivism” is used here as descriptive of a political point of view favoring substantial use of government as a lever of change upon existing socio-economic patterns, but stopping short of Socialist, Nationalist, Single-Tax or purely inflationist programs.

3 The progressive criticism of judicial intervention in the 1890's, which was directed primarily at its social and economic implications, should be distinguished from an equally significant conservative criticism, which opposed on principle the radical innovations in judicial review inherent in the new role of the courts. Oliver W. Holmes, Jr., then on the Massachusetts Supreme Court, was but one, if today the most celebrated, of many such traditional legal conservatives. Though most scholars have overlooked or minimized the various professional cleavages of the period [e.g., Twiss, Lawyers and the Constitution, pp. 141, 142, 172; Fine, Sidney, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought, 1865–1901 (Ann Arbor, 1956), pp. 120–132]Google Scholar, see Warren, Charles, The Supreme Court in United States History (3 vols.; Boston, 1923), Vol. III, pp. 421–426Google Scholar, for an early notice of legal dissidents in the 1890's.

4 Bonney, Charles C., “Impending Perils,” Ohio State Bar Association — Reports, Vol. IX (1888), pp. 153–172Google Scholar; Seymour D. Thompson, “The Power of the People Over Corporate and Individual Combinations and Monopolies,” Proceedings of the Illinois State Bar Association at its Fourteenth Annual Meeting (1891), pp. 81–91; John Gibbons, “Legislation for the Protection of Labor,” Proceedings of the Illinois State Bar Association at its Sixteenth Annual Meeting (1893), pp. 131–141; E. D. Shattuck, “Liberty Endangered,” Proceedings of the Oregon Bar Association at its Fifth Annual Meeting (1895), pp. 126–131.

5 As source materials on legal progressivism, I have used the papers and addresses read at the annual meetings of the national and state bar associations, and the articles and editorials printed in the law journals. The categories chosen offer the advantages of manageability, permitting examination of complete universes in order to estimate representativeness, and professionalism, significant for revealing opinion expressed “in church” as it were. It may be observed here that the sources examined, despite much concern with social discontent, contain surprisingly few references to any specifically agrarian unrest; professional attention was apparently centered, till 1896 at any rate, on capital-labor issues and on the general problems of a corporation-dominated economy. Whether this has any bearing on the standard conceptualizations of the “Populist” and “Progressive” eras is an interesting question beyond the scope of this paper.

6 Ely, Richard T. and Merriam, L. S., “Report on Social Legislation in the United States for 1889 and 1890,” Economic Review, Vol. I (April, 1891), pp. 234–256Google Scholar; Fine, Laissez Faire and the General-Welfare State, pp. 357–359. The most frequent types of labor laws in this period were “store order” acts, often called “scrip” or “truck” acts, providing for payment of wages in lawful money of the United States; coal weighing laws, designed to prevent various types of fraud perpetrated on miners paid on a piece-work basis; and weekly payment laws.

7 94 U. S. 113 (1877). For the latest study of the Munn and other “Granger” cases, including much valuable material on legislative background, see Fairman, Charles, “The So-Called Granger Cases, Lord Hale, and Justice Bradley,” Stanford Law Review, Vol. V (July, 1953), pp. 587–679CrossRefGoogle Scholar.

8 Santa Clara County v. Southern Pacific R.R., 118 U. S. 394. Howard J. Graham has recently contended that the significance of this case has been overemphasized: “An Innocent Abroad: The Constitutional Corporate ‘Person’,” U.C.L.A. Law Review, Vol. II (Feb., 1955), pp. 160–165.

9 The principal cases were Beer Company v. Massachusetts, 97 U. S. 25 (1878); Fertilizing Co. v. Hyde Park, 97 U. S. 659 (1878); Stone v. Mississippi, 101 U. S. 815 (1880); Butchers' Union v. Crescent City Co., 111 U. S. 746 (1884); Stone v. Farmers' Loan and Trust Co., 116 U. S. 307 (1886); Mugler v. Kansas, 123 U. S. 623 (1887); and Powell v. Pennsylvania, 127 U. S. 678 (1888).

10 Ibid., p. 685. The legislature had labeled the act a bill to protect the public health, although it was well known that it was the dairy industry the act sought to protect. The Court's opinion in Powell, as in some of the previous cases, did indicate that there were some limits to the police power, its exercise not extending to the impairment of fundamental rights under the “pretence” of guarding the public health, morals or safety; and in later years such provisos became pegs on which the Court hinged a reversal of its position.

11 “Impending Perils,” Ohio State Bar Association — Reports, Vol. IX (1888), p. 172. Bonney was on the executive committee of the American Bar Association, and in May, 1887, had been seriously considered for appointment to the United States Supreme Court. Dictionary of American Biography (20 vols.; New York, 1928–1936), Vol. II, pp. 439–440. For Bonney's work in behalf of collective bargaining, mediation, and arbitration, see Chicago Legal News, Vol. XIX (Nov. 20, 1886), p. 81; (April 30, 1887), p. 272.

12 “The Sovereign State,” American Law Register, n.s., Vol. XXVIII (March, 1889), pp. 129–139.

13 Vol. I (Dec, 1889), pp. 447–451.

14 134 U. S. 418.

15 Ibid., p. 458.

16 Ibid., pp. 461, 465. In 1894 the Court completed the outflanking of the Munn case by asserting its power to invalidate rate regulations even if set directly by the legislature: Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362; and in 1898 in Smythe v. Ames, 169, U. S. 466, the Court applied the new doctrine in overturning the rate schedules of the Nebraska legislature.

17 Thompson's many publications included such treatises as Homestead and Exemption Laws (1878), The Law of Negligence (1880), The Law of Electricity (1891), and in seven volumes, his masterwork, Commentaries on the Law of Private Corporations (1894–1899). Thompson was editor, successively, of the Central Law Journal, the Southern Law Review, and the American Law Review. He was credited in 1897 with having “long exercised a continuous and virile influence upon legal thought.” In 1904 President Theodore Roosevelt appointed him delegate to the international law congress held that year in St. Louis, but Thompson died before he could attend. Case and Comment, Vol. III (March, 1897), pp. 1–2; Albany Law Journal, Vol. LII (July 13, 1895), p. 31; National Cyclopaedia of American Biography (43 vols. to date; New York, 1893–19-), Vol. XIX, p. 28; Dictionary of American Biography, Vol. XVIII, p. 471.

18 American Law Review, Vol. XXIX (May–June, 1890), p. 522 [italics in source].

19 “Annual Address,” Proceedings of the Thirteenth Annual Meeting of the Alabama State Bar Association (1890), pp. 98, 103.

20 “The Power of the People Over Corporate and Individual Combinations and Monopolies,” Proceedings of the Illinois State Bar Association at its Fourteenth Annual Meeting (1891), p. 88.

21 “Abuses of Corporate Privileges,” Ninth Annual Meeting of the Bar Association of the State of Kansas (1892), p. 41.

22 Chicago Legal News, Vol. XXIV (Aug. 20, 1892), p. 410. For other criticisms of the Supreme Court's decision in the Chicago, Milwaukee case, see the Advocate (Minneapolis), Vol. II (April 15, 1890), pp. 174–175; American Law Register, n.s., Vol. XXXI (April, 1892), pp. 273–280.

21 The classic study is Roscoe Pound's article, “Liberty of Contract,” Yale Law Journal, Vol. XVIII (May, 1909), pp. 454–487. An excellent recent analysis is in Jacobs' Law Writers and the Courts, pp. 23–63.

24 Jones v. People, 110 Ill. 590 (1884); Millett v. People, 117 Ill. 294 (1886); and Godcharles v. Wigeman, 113 Pa. St. 431 (1886).

25 State v. Goodwill, 33 W. Va. 179 and State v. Fire Creek Coal and Coke Co., 33 W. Va. 188, rendered simultaneously in 1889; Frorer v. People, 141 Ill. 171 (1892); State v. Loomis, 115 Mo. 307 (1893).

26 Ex Parte Kubach, 85 Cal. 274 (1890). The ordinance also prohibited the employment of Chinese labor, but this was only incidentally referred to in the court's opinion.

27 Commonwealth v. Perry, 155 Mass. 117 (1891). The case was featured by a dissenting opinion of the already well-known Judge Holmes. Holmes maintained that the law should be sustained as a not unreasonable exercise of the legislative power to prevent fraud. Ibid., pp. 123–125.

28 Ramsey v. People, 142 Ill. 380 (1892).

29 San Antonio Railway Co. v. Wilson, 19 S.W. 910 (1892). Appearing in the court's opinion was this remarkable statement: “The employer and employee must always deal at arm's length. Their interest in making the contract is always adverse …. Unquestionably, so long as men must earn a living for their families and themselves by labor, there must be, as there always has been, oppression of the working classes.” Ibid., p. 912.

30 Braceville Coal Co. v. People, 147 Ill. 66 (1893).

31 State v. Goodwill, 33 W. Va. 184.

32 “Abuses of Corporate Privileges,” Ninth Annual Meeting of the Bar Association of the State of Kansas (1892), p. 45 [italics in source]. Thompson maintained a steady drumfire against freedom of contract in the editorial pages of the American Law Review, Vol. XXIV (March–April, 1890), p. 328; Vol. XXVI (May–June, 1892), p. 404; Vol. XXVIII (Jan.–Feb., 1894), p. 72; (May–June, 1894), pp. 428–429.

33 “Abuses of Corporate Privileges,” p. 47. Judge John Gibbons of the Cook County Superior Court expressed the same advanced views more positively one year later: “The old thought concerning the sacredness of private property must give way to the natural right to live, and it will soon be established that an honest man, willing and able to work, may demand from society, not as a favor, sustenance and shelter for himself and his family.” “Legislation for the Protection of Labor,” Proceedings of the Illinois State Bar Association at its Sixteenth Annual Meeting (1893), p. 134.

34 “Legislative Control Over Contracts of Employment: The Weavers' Fines Bill,” Harvard Law Review, Vol. VI (May, 1892), p. 96 [italics in source].

35 Reno was active in the industrial arbitration and utilities regulation movements in Massachusetts in the 1890's and 1900's, authoring several books and legislative statutes. Who Was Who in America (Chicago, 1942), p. 1,022; Biographical Dictionary of America (10 vols.; Boston, 1906), Vol. IX, unpaged.

36 “Arbitration and the Wage Contract,” American Law Review, Vol. XXVI (Nov.–Dec, 1892), p. 849.

37 “State Regulation of the Contract of Employment,” American Law Review, Vol. XXVII (Nov.–Dec, 1893), pp. 874–875. It is interesting to compare these early criticisms of a Spencerian reading of the Constitution with Justice Holmes' famous rebuke to the Supreme Court majority in the Lochner case of 1905: “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” 198 U. S. 45.

38 Social conditions during the depression have recently been re-examined by Rezneck, Samuel: “Unemployment, Unrest, and Relief in the United States during the Depression of 1893–1897,” Journal of Political Economy, Vol. LXI (Aug., 1953), p. 327Google Scholar.

39 American Law Review, Vol. XXVII (May–June, 1893), pp. 409–410; see also U. M. Rose, “The Law of Trusts and Strikes,” Report of the Sixteenth Annual Meeting of the American Bar Association (1893), p. 314.

40 Farmers' Loan and Trust Co. v. Northern Pacific Ry. Co., 60 Fed. 803 (E. D. Wis.), reversed in part by Circuit Justice Harlan in Arthur v. Oakes, 63 Fed. 310 (1894), for imposing “a condition of involuntary servitude.”

41 American Law Review, Vol. XXVIII (March–April, 1894), pp. 268–272; American Law Register, n.s., Vol. XXXIII (Jan., 1894), pp. 81–82; Walter Murphy, “The Use of the Writ of Injunction to Prevent Strikes,” Report of the First Annual Meeting of the Territorial Bar Association of Utah (1894), pp. 30–54.

42 American Law Review, Vol. XXVIII (July–Aug., 1894), pp. 591–592, 630–637.

43 American Law Register, n.s., Vol. XXXIII (Sept., 1894), pp. 609–622. See also Pennsylvania Law Series, Vol. I (Nov., 1894), pp. 4–18; and Proceedings of the Oregon Bar Association at its Fifth Annual Meeting (1895), p. 129.

44 “Some Reflections on the Relations of Capital and Labor,” Proceedings of the Thirteenth Annual Session of the Texas Bar Association (1894), pp. 51–66.

45 “Strikes,” Proceedings of the Thirteenth Annual Meeting of the Bar Association of Tennessee (1894), pp. 67–71.

46 American Law Review, Vol. XXIX (May–June, 1895), pp. 473–474. See also the comments of the prominent Judge Reuben M. Benjamin of Bloomington, Illinois, printed in the Chicago Legal News, Vol. XXVI (Aug. 11, 1894), p. 406.

47 156 U. S. 1.

48 Ibid., p. 43. For a recent survey of the wide extent of Harlan's dissidence from the conservative court of the 1890's, see Beth, Loren P., “Justice Harlan and the Uses of Dissent,” American Political Science Review, Vol. XLIX (Dec, 1955), pp. 1,085–1,104CrossRefGoogle Scholar.

49 American Law Register, n.s., Vol. XXXIV (Feb., 1895), pp. 89–90.

50 American Law Review, Vol. XXIX (March–April, 1895), pp. 288–289. See also Guy, Jackson, “Trusts and Monopolies. The Anti-Monopoly Act: A Review of the Decisions Affecting It,” Virginia Law Register, Vol. I (Feb., 1896), pp. 707–725Google Scholar.

51 Pollock v. Farmers' Loan and Trust Co., U. S. 429, and Pollock v. Farmers' Loan and Trust Co. (rehearing), 158 U. S. 601.

52 Interesting material on the more sensational aspects of the Pollock case may be found in Swaine, Robert T., The Cravath Firm and its Predecessors, 1819–1947 (2 vols.; New York, 1946), Vol. I, pp. 518–536Google Scholar; George Shiras 3d, Justice George Shiras, Jr. of Pittsburgh (Pittsburgh, 1953), pp. 160–183; and Farrelly's, David G. revealing “Harlan's Dissent in the Pollock Case,” Southern California Law Review, Vol. XXIV (Feb., 1951), pp.175–182Google Scholar.

53 American Law Review, Vol. XXIX (Sept.–Oct., 1895), pp. 742–745; “Government by Lawyers,” Proceedings of the Fifteenth Annual Meeting of the Texas Bar Association (1896), pp. 64–85.

54 A former president of the Tennessee Bar Association as well as Supreme Court Judge, Ingersoll was also Dean of the Law Faculty of the University of Tennessee from 1891 to 1914, and a vice president of the American Bar Association, 1907–1913. Who Was Who in America, 1897–1942, p. 618.

55 “The Revolution of 20th May, 1895,” Proceedings of the Fourteenth Annual Meeting of the Bar Association of Tennessee (1895), p. 180. For a similar comparison with the Dred Scott case, see the paper of David E. Bailey, “Stare Decisis,” Proceedings of the Washington State Bar Association (1895), pp. 72–83, and the fascinating discussion it provoked reported from pp. 26 to 31. Other contemporary criticisms of the tax case: American Lawyer, Vol. III (June, 1895), pp. 228–229; Harvard Law Review, Vol. IX (Oct., 1895), pp. 198–210; Proceedings of the Nineteenth Annual Meeting of the Alabama State Bar Association (1896), pp. 7–10, and Appendix, XXII–XLVI.

56 Ritchie v. People, 155 Ill. 98.

57 Gregory, S. S., “Constitutional Limitations on the Police Power,” North Western Law Review, Vol. IV (Nov., 1895), p. 50Google Scholar; Pingree, Darius H., “The Anti-Trust Laws, and Some Other Laws — A Legal Criticism,” American Lawyer, Vol. III (Sept., 1895), p. 387Google Scholar. See also Chicago Legal News, Vol. XXVII (March 30, 1895), p. 274; American Law Review, Vol. XXIX (March–April, 1895), pp. 236–266; and (Sept.–Oct., 1895), pp. 766–768.

58 In Re Debs, 158 U. S. 564 (1895).

59 Edwards, Percy L., “The Federal Judiciary and its Attitude towards the People,” Michigan Law Journal, Vol. XV (June, 1896), pp. 183–194Google Scholar.

60 American Law Review, Vol. XXIX (July–Aug., 1895), pp. 550–558; (Nov.–Dec, 1895), pp. 856–863; Vol. XXX (March–April, 1896), pp. 188–202. A short summary of Pennoyer's interesting and highly nonconformist political career is in the Dictionary of American Biography, Vol. XIV, pp. 445–446.

61 “Constitutional Changes which are Foreshadowed,” American Law Review, Vol. XXX (Sept.–Oct., 1896), pp. 702–709Google Scholar. Clark remained on the North Carolina bench till his death in 1924, always steadfast in his advocacy of advanced progressive reform and a radically democratized Constitution. Brooks, Aubrey L., Walter Clark, Fighting Judge (Chapel Hill, 1944)Google Scholar.

62 Westin, Alan F., “The Supreme Court, the Populist Movement and the Campaign of 1896,” Journal of Politics, Vol. XV (Feb., 1953), pp. 3–41CrossRefGoogle Scholar; Wish, Harvey, “John P. Altgeld and the Background of the Campaign of 1896,” Mississippi Valley Historical Review, Vol. XXIV (March, 1938), pp. 503–518CrossRefGoogle Scholar.

63 McKee, Thomas H., The National Conventions and Platforms of all Political Parties 1789 to 1904 (Baltimore, 1904), pp. 294–295, 296, 297Google Scholar. The plank on life tenure would affect district and circuit court judges.

64 See Westin, op. cit., pp. 32—39, for quotations from a number of conservative sources illustrating the excitement generated by the anticourt planks. The Cleveland wing of the Democracy for example, which seceded from the regular organization and set up its own ticket, devoted several paragraphs of its National Democratic platform to pledging support to the Supreme Court. McKee, op. cit., p. 318. For evidences of concerted anti-Bryan activity within the legal profession, see the Albany Law journal. Vol. LIV (July 18, 1896), p. 33; (July 25, 1896), p. 49; (Oct. 31, 1896), p. 278; (Nov. 7, 1896), p. 289; King, Melville Weston Fuller, pp. 234–235; Swaine, The Cravath Firm, Vol. I, pp. 557–559. Seymour D. Thompson illustrates the dilemma that must have confronted many legal progressives; to begin with, he approved of only part of the judicial plank, opposing the attack on the injunction: American Law Review, Vol. XXX (July–Aug., 1896), p. 579; later he stated he was voting for McKinley because he disliked Bryan's monetary position: Ibid. (Sept.–Oct., 1896), p. 757. J. C. Rosenberger, mildly progressive editor of the Kansas City Bar Monthly, was outraged by the anticourt planks (Vol. I [Aug., 1896], p. 193).

65 Two of the more important decisions reflecting the new trend were Holden v. Hardy, 169 U. S. 366 (1898), sustaining a Utah eight-hour law for miners, and Knowlton v. Moore, 178 U. S. 41 (1900), affirming an inheritance tax with progressive rate features.