  THE VOLUME XLV JANUARY, 1922 No. 1 EDITORIAL NOTES. At least three decisions of nation-wide import were made by the United States Supreme Court in December. The first, American Steel Foundries v. Tri-City Trades’ Council we give, probably in full, elsewhere, as taken from the “New York Times.” It is on the subject of strikes and picketing, and speaks for itself. Another tested the law of Arizona, which made picketing, etc., that tended to destroy an employer’s business, lawful, and the law was held to be unconstitutional, although by a divided Court, 5 to 4. Among the dissenters was Mr. Justice Pitney. The main opinion was lengthy and explicit, and we think, fair and just. The third was on the subject of the “open competition” plan by which members of the National Hardwood Manufacturers’ Associations believed they were getting around the Sherman Act, but are now told by the Court their practices are in restraint of trade. The Association was prosecuted by the Government in the Federal Court at Memphis, and a permanent injunction was obtained against continuance of the practices of filing by hardwood concerns of reports of business operations with a central organization, such reports being open to all other members of the organization. The opinion holding the conduct of the members of the Association to be illegal was delivered by Justice Clark. As usual, of late, there were dissents, this time by Justices Holmes, Brandies and McKenna. The meetings of the members resulted in concerted action, Justice Clarke stated, to raise prices regardless of conditions, and the plan was termed by him “misleading and a misnomer” and “an old evil in a new dress and a new name.” He added that instead of a plan to promote open competition it operated to restrict competition. It was futile, he said, to argue that the plan was merely to furnish information which could not be otherwise obtained. The secretary of the Association, through an expert statistician, utilized replies to questionnaires and other information furnished by the members of the Association as the basis for bulletins and advices. These replies also were utilized in predicting and promoting advances in prices, by withholding of products from the market, awaiting higher prices. In the second case referred to in the preceding paragraph the United States Supreme Court thus laid down the rule as to the “secondary boycott”: It is to be observed that this [the case in hand] is not the mere case of a peaceful secondary boycott, as to the illegality of which courts have differed and States have adopted different statutory provisions. A secondary boycott of this kind is where many combine to injure one in his business by coercing persons against their will to cease patronizing him by threats of similar injury. In such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons and they have the right to advise third persons of their intention to do so when each act is considered singly. The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fundamental. The means used are the libelous and abusive attacks on the plaintiffs’ reputation, like attacks on their employers and customers. Threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business and the consequent obstruction of free access thereto—all had the purpose of depriving the plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remedyless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law.” It is with deepest regret that an announcement in our obituary columns in this issue includes the name of ex-Justice Bennet Van Syckel as a deceased member of the Bar and jurist. Those who practiced under him in the Circuits in former years, or who knew him as the bright, fully-equipped ornament of the Supreme Bench, well understand that his passing cuts off the last link between the Supreme Court of a few decades ago and the Court as constituted to-day. Justice Van Syckel was approaching 92 years of age, and many were the hopes that he would retain his health and vigor of intellect until he reached an even hundred years. The Courts wherein he sat, and the present older members of the Bar will see to it that his merits are officially pronounced; we can only say now that no eulogy to be given to his memory will do him over-justice. His dignity, fairness and sound legal judgment on the Bench were such that he deserved even greater honors than he received and his private life was immaculate. An excellent portrait of the Justice as he appeared in 1905 will be found in the Law Journal of that year (Vol. 28, facing p. 6). The following seems almost an impossible propaganda to come even from Germany at this time, but especially from one of the sources named. The “Pathfinders League,” of Stuttgart, we assume to be a Social (practically Soviet) organization, but the “Christian Young People’s Societies,” must be at least a quasi-religious body. A circular sent out and published by these organizations on July 22 last says: “War is the most exalted and holiest expression of human activity. Some day the hour of battle will strike for us, too, when we, as officers, go forth against the enemy. The people, which is a minor politically, will then fall into line of itself. In the days of secret, happy expectation there then goes from heart to heart the cry: ‘With God for King and Fatherland!’ Still and deep in German hearts there must live the joy of battle and a longing for it. So, let’s laugh to scorn those old women in men’s breeches who fear war and wail that it is horrible and criminal. No and again, No! War is beautiful, and it is glorious to die for the Fatherland and the hereditary ruling house. Our great ally above will lead us splendidly.” In New York City there is a municipal ordinance requiring landlords, who are to give tenants under a lease hot water, to furnish it or be arrested, fined and, if thought wise by the magistrate, imprisoned. Recently a landlord in the Bronx was found guilty of failure to supply hot water, and it appeared that the landlord and tenant had somehow become on unfriendly terms; that there was a special valve in the house which permitted hot water to go to one apartment and to be shut off from another; and that the landlord closed down the valve to shut off the hot water of the complaining tenant. Thirty days in prison and a fine of $250 was the penalty imposed by the Justices in Special Sessions. Among the important decisions in the Court of Errors and Appeals in this State on Nov. 14th last was one unanimously confirming the conviction of the negro, George Washington Knight, for the murder of Mrs. Edith Marshall Wilson, the church organist at Perth Amboy, in March last, which murder the prisoner had confessed. (See N. J. L. J., April, 1921, p. 102). Although the Court was unanimous in upholding the conviction of Knight, three of the Judges, Chancellor Walker, Justice Kalisch and Judge Black, differed with the view of the majority as to the constitutionality of the Mackay Act of 1921 (Laws, Ch. 349), empowering the Court of Errors and Appeals to review the sufficiency of the evidence in criminal cases, where the defendant elects to take up the entire record. Mr. Justice Kalisch wrote a minority opinion, concurring in the affirming of the conviction but differing with the majority as to the constitutional question involved. Chief Justice Gummere, in the main opinion, said that the statute of 1921 was not novel, but is similar to an Act passed more than twenty years ago, but subsequently repealed, under which the Court of Errors set aside a conviction for murder in the first degree. The first ground of attack was that the Mackay Act violates the provisions of the Constitution relative to trial by jury, which provides that the guilt or innocence of a defendant shall be determined by an impartial jury. The Court said, however, that the question of the verdict being in accordance with the weight of the evidence cannot be raised by the State, but only by the defendant. Therefore, the Court held, the constitutional protection afforded by a jury trial is not lessened by the law under which the accused may elect to have the evidence reviewed. The Court also held that the right given the Court of Errors to order a new trial where the evidence seemed insufficient was not a novel proposition, but was rather extending to the reviewing tribunal a power now existing in the trial Court; that such an extension of power, provided it does not trespass upon the inherent powers of any other Court, is not unconstitutional. Having decided the legal questions involved, the Court reviewed the testimony upon which Knight was convicted and concluded it was sufficient to justify the jury’s verdict of murder in the first degree. Later, Mr. Justice Bergen, before whom the Knight trial was held, resentenced the prisoner to be electrocuted. At the Convention of the Real Estate League of New Jersey in Newark recently, Mr. Frank B. Jess, of Haddon Heights, whose experience on the State Board of Taxes and Assessment has made him an authority on the subject of taxation, its inequalities and shortcomings, stated with positiveness that the personal property tax is a failure and always will be a failure. “It is obvious,” he added, “that if all the taxable property in the State should be assessed at its true value, or at a uniform percentage of true value, the burden of taxation would be apportioned with exact equality. The chief objective of the assessing system of the State, therefore, is uniformity of valuation. It would be foolish to suppose that this ideal can ever be wholly attained. But it is more foolish not to aim at its attainment. The scheme of assessment should be devised with that end in view and so framed as to facilitate its achievement. The prevailing scheme provides as many assessors as there are taxing units. Even if each assessor were an expert the grand result inevitably would be a great variety of valuations. As so many assessors are not experts the absence of uniformity is all the more conspicuous.” Mr. Jess said that each assessor or assessing body is now a separate machine, functioning independently in a particular territory. He declared that an assessor should be a part of a system having a central power plant functioning for the entire State. After three days of argument by lawyers in the Federal case in New York City concerning the intent of and Court decisions on the Sherman law against trusts, Judge Hand imposed fines of $3,000 each on the seven corporations and ten individuals who had pleaded guilty to violating the Sherman Act. The defendants were those of the Terra Cotta Trust, and included companies in New Jersey, at Perth Amboy and Rocky Hill. Nearly at the same time Judge Van Fleet, so well known as a jurist of California, but descended from an old New York and New Jersey family, did better as to real justice with four members of the Tile and Mantel Trust, who also had pleaded guilty to violations of the Sherman law, by sentencing three of them to pay a fine of $4,000 each and to spend four months in prison, and the fourth to pay a fine of $2,000 and to spend two months in prison. There were also fines on others. The fines on all members of the combine aggregated nearly $170,000. It is clear that only by heavy fines with imprisonment added can the Sherman law against widely-extended and injurious trusts be made to act as a deterrent of such trusts in the future. The Attorney-General of the United States, in an address at the last meeting of the American Bar Association in Cincinnati, gave, as suggestions, six rules for the handling of labor disputes. They were: “First—It is an undisputed fact that the public have a right to know what the quarrel is about in every actual or threatened strike or lockout and similar controversies. “Second—There should be some definite agencies in government for ascertaining these facts fully and making an impartial finding by those specially qualified both by temperament and training to do this particular kind of work; and such finding should be reported so that it will be a reliable source of knowledge to which students and publicists and statesmen can resort. “Third—Compulsory jurisdiction over these two factors to compel them to submit to an inquiry of this sort is not only desirable but just. “Fourth—At present our study of this question has not been sufficiently thorough to warrant legislation compelling the acceptance of such findings by the parties thereto. Therefore, the jurisdiction of the proper agency should be obligatory upon the parties to submit to the investigation; the acceptance of the finding by the parties should be voluntary. “Fifth—The experience of the past shows that in most cases full, accurate, reliable publicity has been sufficient to compel an adjustment of these cases. Public sentiment is a controlling factor and it is important, in justice to both of the parties, that it should depend upon something more accurate than successful propaganda. “Sixth—In the course of time knowledge of the nature and causes of these controversies derived in this way may crystallize public sentiment to the extent that laws can be enacted making such controversies impossible.” It will thus be seen that Mr. Dougherty does not favor obligatory arbitration in the case of labor disputes, his view being that public sentiment will decide them. But we have always been clear in our own mind that there must be compulsory acquiescence in the findings of whatever tribunal hears such disputes; otherwise one party or the other will, too often, not acquiesce. In a recent Chancery case, where an injunction had been ordered by the Court restraining a corporation from doing anything while the matter of a permanent receivership was under consideration, a voluntary petition in bankruptcy was filed. In proceedings against certain officers of the corporation for contempt in thus disobeying the injunction, Chancellor Fielder suspended sentence upon the ground that, as a mitigating circumstance, they had been badly advised, and said: “I think that the conduct of counsel in the case was absolutely reprehensible. Counsel was bound to know the law, and if he did not know the law, he ought to have had common sense enough to know that an order of this Court restraining any act of the corporation was sufficient to forbid the filing of a voluntary petition in bankruptcy. If the order to show cause had been directed to counsel I think I would find him guilty of contempt of Court, and I don’t think that any mitigating circumstance could be offered in his behalf.” Our readers are receiving this month, in addition to the usual charming article by former Judge Frederic Adams, a Fourth of July oration delivered by Mr. Justice Parker of our Supreme Court in the Church of St. Mary’s-by-the-Sea, Northeast Harbor, Maine, two and a-half years ago. Because this address is not recent gives special reason for its publication now. We only learned recently of this address and, after seeing it, requested of the Judge the privilege of publishing it in the Law Journal, a request finally granted. It seemed to us not only that the general matter and fine, clear statement of facts and elevated American sentiments warranted the preservation of this address, but also that our readers might be interested to compare what some of our best minds thought of events at the close of the Treaty at Versailles and what has really happened since in American and world affairs. SOME REMINISCENCES, MOSTLY LEGAL. BY HON. FREDERIC ADAMS, LOS ANGELES, CAL. III. Anecdotes of the Harvard Law School and of its Famous Triumvirate. I have on my shelves a beautiful book. “The Centennial History of The Harvard Law School,” 1817-1917, published by The Harvard Law School Association, 1918. This work, of about four hundred pages, has been written and compiled by the Faculty, with the assistance of graduates. It is admirably printed on excellent paper and liberally illustrated. The whole story of the great School is spread before the reader: its modest beginning; its Golden Age of Story and Greenleaf; the sedate and conservative era of the Triumvirate, Parker, Parsons and Washburn, in which my own lot fell; and then Langdell, the apostle of a new idea, and his many brilliant and interesting followers. The centre of gravity has been shifted from the text-book to the case and this is philosophical, for evidently the cases are the original evidences of the law. But the idea of taking up what Thackeray calls “the vast legend of the law” as a direct subject of study was so revolutionary that it won its way very slowly. I quote from the “Centennial History” a spirited sketch of Professor Langdell’s opening, and of the early history of the new system: “The day came for the first trial of the new method of study and teaching. The class gathered in the old amphitheater of Dane Hall—the one lecture room of the School—and opened their strange new pamphlets, reports bereft of their only useful part, the head-notes! The lecturer opened his. “‘Mr. Fox, will you state the facts in the case of Payne v. Cave?’ “Mr. Fox did his best with the facts of the case. “‘Mr. Rawle, will you give the plaintiff’s argument?’ “Mr. Rawle gave what he could of the plaintiff’s argument. “‘Mr. Adams, do you agree with that?’ “And the case-system of teaching law had begun.... Consider the man’s courage.... Langdell was experimenting in darkness absolute save for his own mental illumination. He had no prestige, no assistants, no precedents, the slenderest of apparatus, and for the most part an uncompromising corpus vile. He was the David facing a complacent Goliath of unshaken legal tradition, reinforced by social and literary prejudice. His attempts were met with the open hostility, if not of the other instructors, certainly of the bulk of the students. His first lectures were followed by impromptu indignation meetings. ‘What do we care whether Myers agrees with the case, or what Fessenden thinks of the dissenting opinion? What we want to know is: “What’s the law?”’ “A controversy at once sprang up as to the efficacy of this method of instruction. To most of the students, as well as to Langdell’s colleagues, it was abomination. The students cut his lectures; only a few remained. But these few were the seed of the new School. They included several men who afterward attained national reputation: James Barr Ames, his greatest pupil and successor; Franklin G. Fessenden, member of the Superior Court of Massachusetts; Austen G. Fox, a leader of the New York Bar; Edward Q. Keasbey, of New Jersey; James J. Myers, Speaker of the Massachusetts House of Representatives and one of the leaders of the Boston Bar; and Francis Rawle of Philadelphia, a President of the American Bar Association. Working out his cases with these enthusiastic young men, patiently and thoroughly as he always worked, Langdell did nothing to force upon others the acceptance of his system. In a few years Ames was appointed to the Faculty, and brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. It was ten years before others acceded to it.” The fact was that something had to be done. The School was on the down grade. I state this no more strongly than the History does at pages 21 to 25. This was the natural result, I think, of an extremely inefficient method of instruction. Nothing could be less effective than a series of lectures which no one was bound to attend, without recitations or examinations, so that it was possible for a student to receive his degree after a year and a half of residence without learning any law. Such a system might do for very zealous and ambitious students, but not for a large class. That the School held up its head as long as it did was due to two things: the genius loci, which counted for a good deal, and the personal influence and example of the professors, who were superior men. I write with the reserve proper to one who is considering an educational policy of which he has had no personal experience, but it seems to me that, in the last analysis, Professor Langdell’s new idea was this: to rouse, develop, discipline and cultivate the judgment, and so, as far as possible, to equip each student with that valuable attribute, easily recognized but hard to define or describe, which is called a legal mind. It is judgment that does it. A mechanic of good judgment is already half a lawyer; an attorney of poor judgment will always remain in the apprentice class. I am reminded how I first saw Langdell’s name. After I left the Law School I was for a time a member of the New York Bar. As I went upstairs to my office at No. 16 Wall street, I would see above me, at the top of the next flight, the sign of a law firm, Pierrepont, Stanley & Langdell. I knew about Pierrepont, who was a Yale man of the class of 1837, and I somehow got the idea, perhaps unjust to Mr. Pierrepont, that one of the junior partners was an erudite man who acted as purveyor of legal ideas to the head of the firm, somewhat as Sydney Carton did for Mr. Stryver in “A Tale of Two Cities.” The selection of Mr. Langdell as a professor was due to the sagacity of President Eliot. An interesting and valuable part of the History is a biographical list of the ninety-one men who were teachers in the School during the century covered by the book. One of the names is that of Justice Francis J. Swayze, of the New Jersey Supreme Court, who began in the Centennial year, 1917, a course of lectures on Legal Ethics, which he continues. I now go back to my own time at the Law School. There was a small Jersey group there. Nehemiah Perry, Henry Young, Job H. Lippincott, Abram Q. Garretson and John R. Emery were men who, like Othello, “have done the State some service.” When Vice-Chancellor Emery passed away, I became the only survivor of the little company. Professor Joel Parker, as I knew him, was a courteous gentleman of the old school, sixty-nine years of age, tenax propositi public-spirited, courageous and combative, who had established a high reputation as a jurist by his opinions as Chief Justice of New Hampshire for fifteen years. As a conservative Whig he had supported the Compromises of 1850, but presided over a meeting of the citizens of Cambridge, held June 2, 1856, to denounce the assault on Senator Sumner. The conclusion of his speech on that occasion showed the mettle of the man. “For myself, personally, I am perhaps known to most of you as a peaceful citizen, reasonably conservative, devotedly attached to the Constitution, and much too far advanced in life for gasconade; but, under present circumstances, I may be pardoned for saying that some of my father’s blood was shed on Bunker Hill, at the commencement of one revolution, and that there is a little more of the same sort left, if it shall prove necessary, for the beginning of another.” The Professor had a true instinct. The attack on Senator Sumner was the first act of civil war; the John Brown raid the second; the firing on Fort Sumpter the third. Professor Parker, when Chief Justice of New Hampshire, had a memorable struggle with Judge Story, who held the United States Circuit Court, over a question under the Bankrupt Law. The facts are stated on pages 245 and 246 of the History of the Law School. In my time it was thought that Professor Parker did not like Story, or Story’s rather showy law books. He probably would have agreed with the following remarks on page 12 of the History: “Story was the kindly master who, in his lectures, smoothed the rough places and was profuse with instruction and help. We may suppose his lectures, like his books, to have been learned, fluent, often original and profound, sometimes, however, dodging a difficulty rather than trying to overcome it.” I have heard it said that Story stands higher as a writer of opinions than as a legal author. There was in my day a student named Stevenson who was assigned to argue one side of a Moot Court case before Professor Parker, sitting as Judge. Stevenson, who knew and well understood the Professor, in the course of his argument read a few sentences from one of Story’s books and then, pausing and looking at the Judge, said: “May it please your Honor. There follows this passage about half a page of Latin. I have not read it, but it looks as though it were on our side.” Professor Parker, during the War for the Union was pro the administration saepe; pro lege, pro republica semper. He had, of course, profound reverence for the writ of habeas corpus. A student once stated a strong case of treasonable conduct and asked him if he would not suspend the writ in such a case. “No, sir,” said the Professor, “I would not suspend the writ of habeas corpus, but I would suspend the corpus.” Professor Theophilus Parsons was a son of the great Chief Justice of Massachusetts of the same name. He was sixty-six years of age when I knew him, a man of the world who had touched life at many points, a voluminous writer of law books and an instructive and entertaining lecturer. There was a side to his nature which he did not show to his class. I used to have among my books a small volume of sublimated Swedenborgian doctrine written by him. It was difficult to associate it with the genial and jovial man you saw in the lecture room. I have tried to assimilate this message from the New Jerusalem, but have failed, no doubt because of some invincible ignorance and innate incapacity of my own. Professor Parsons saw something of Europe after graduating from Harvard in 1815, and I think was at St. Petersburg with William Pinkney, then American minister, when the Grand-duke Nicholas, who was afterwards Emperor, was married to a Prussian princess in July, 1817. He described Mr. Pinkney as coming in from the ceremony in a real or affected huff, and complaining, as he tore off his gloves, that a beggarly Grand-duke had obliged him to get up at eight o’clock in the morning. “But, Mr. Pinkney,” said Parsons, “the wedding was not until twelve o’clock.” “True, sir,” said Pinkney, who affected to be a man of fashion, “but can a gentleman dress in less than four hours?” Professor Parsons wrote an interesting life of his father, who was an old-fashioned colossus of the common law. Indeed, the Chief Justice took pretty much all knowledge for his province, and was a classical scholar and good mathematician. I moved, or was moved, at the early age of three months, from my birthplace in New Hampshire to the parish of Byfield, Massachusetts, near Newburyport, and lived there for seven years. The father of Chief Justice Parsons was a Congregational minister and pastor of the church in Byfield for more than forty years. When I visit Byfield, as I love to do, I read upon a tablet on the parsonage lawn “Birthplace of Theophilus Parsons.” The Chief Justice had an extraordinary knowledge of the early history, laws, institutions, manners and local usages of the settlers of New England. I had among my law books one that used to remind me of him. A young lawyer once asked him what was the best law dictionary. “Kinnicum’s is the best,” was the answer. A few days later, the young man said to him, “I have asked everywhere for ‘Kinnicum’s Law Dictionary’ and cannot find it.” The Chief Justice laughed and said: “Ask for Cunningham’s.” The book which I had was Cunningham’s “Law Dictionary,” in two folio volumes. A similar incident is told of Judge Story, who was also a ‘longshore man, born in Marblehead, a place which abounded in local peculiarities, as we know from Whittier’s version of “Flud Oireson’s Ride.” Judge Story was opening the Circuit Court of the United States at Salem, and the clerk, as he went over the panel, called “Michael Treffery.” No answer. “Michael Treffery!” No answer. “That is strange,” said the clerk, “I saw the man here a few moments ago.” “Let me see the list,” said the Judge. He glanced at it and said, to the clerk, “Call Michael Trevay.” The clerk: “Michael Trevay.” “Present,” said a juror. The clerk: “Why did you not answer?” “You never called my name.” Mr. Parsons, before he became Chief Justice, was sitting in his house at Newburyport one Sunday morning, when a client and friend, who lived at Salem, was announced and said: “Mr. Parsons, I beg your pardon for making a call on Sunday. I would not do it if it were my own matter, but the case is that I am guardian for some minor children and a matter of importance to them is coming up in the Probate Court at Salem to-morrow morning. I have had no opportunity to get advice and so I have taken the liberty to ask your counsel.” “Never practice law on Sunday,” said Parsons. “Why, of course I understand that,” said the other, but I thought that perhaps, under all the circumstances, you might be willing to aid me.” “Never practice law on Sunday,” said Parsons. “Good day, Mr. Parsons, I am sorry to have troubled you.” “Stop a minute,” said Parsons, “do you want advice as to the moral aspect of the case or as to the legal aspect of it?” “Why, as to the legal aspect, of course. I am satisfied that my position is fair and right. I want to know whether it will stand law.” “Well, now, I will tell you,” said Parsons, “I don’t know anything about your case and I don’t want to hear anything about it, but I know you, and if you think that your position is fair and just you may go ahead on that and I will be responsible for the law.” Someone asked him, when he was Chief Justice, if it were true that he never lost a case while he was at the Bar. “Yes,” said the Chief Justice, “that is true. I never lost a case, but my clients lost a great many.” Chief Justice Parsons, because of his preoccupation with his thoughts, was sometimes careless about his dress. He was a clubable man, to use Dr. Johnson’s phrase, and some of his intimate friends thought that in a genial hour a useful hint might be given him. So it was arranged that Mr. Harrison Gray Otis should invite the group to dinner and manage the matter. Mr. Otis was the one to do it, for he was a man of taste, quite “the glass of fashion and the mould of form,” of great personal elegance and public distinction, and a graceful entertainer. Accordingly, the plan was carefully staged, and during the dinner the conversation took a natural turn toward social customs, usages, modes of dress and the like, and finally Mr. Otis, in a natural way, but with some distinctness, said: “For my own part, I always put on a clean shirt every day.” The Chief Justice, who had apparently been giving his undivided attention to his dinner, here looked up and said: “Why, Otis, what a confoundedly dirty fellow you must be! I can wear a shirt for a whole week.” Jeremiah Mason told of a professional conference between himself, when quite a young man, and Mr. Parsons before he became Chief Justice. Among the elements in the case was a conveyance of parish land by a clergyman, and its nature and effect were under discussion. Mr. Mason suggested that it might be held to be a covenant to stand seized. Mr. Parsons turned to him quickly and said: “Mason, I like that; that is a good idea of yours; in the relation between a clergyman and his parish there is some analogy to that between a man and his wife.” Mr. Mason, in telling the story, said: “I didn’t know, or had forgotten, that a consideration of blood or marriage was necessary to support a covenant to stand seized, but I said nothing, and as soon as I got home I took down my books and began to study the subject, and found the blood spurting out between the very lines of the page.” It is grateful to recall the remaining member of the Triumvirate, Professor Emery Washburn, for he was an enthusiast, an indomitable and joyous worker at the age of sixty-three. I do not say that Parker and Parsons were not enthusiasts in their own way. They must have been so to accomplish what they did, but neither Parker nor Parsons manifested and imparted the contagious enthusiasm about their daily work which carried Washburn and the class with him along the arid path of the law of real estate. He was always busy and always accessible and perhaps, on the whole, the most useful member of the Triumvirate. He had been a leader of the very able Bar of Worcester and Governor of the Commonwealth, and was the author of valuable law books, with which the profession is familiar. I had a piece of good luck with him in my first and only Moot Court case. As I stood up to open the case, Professor Washburn, sitting as judge, said: “Mr. Adams, instead of reading the printed case, suppose you just state the facts in your own way.” It happened that I was about to ask him to let me do that and was already prepared. So I came off with flying colors and probably got more credit for readiness than I deserved. I quote from the “History” at page 285: “In describing his first official visit to the Law School, late in 1869, President Eliot speaks of knocking at the door of Washburn’s room and, entering, received the usual salutation of the ever-genial Governor Washburn. ‘Oh, how are you? Take a chair,’ this without looking at me at all. When he saw who it was, he held up both his hands with his favorite gesture and said, ‘I declare, I never before saw a President of Harvard College in this building. Then and there I took a lesson from one of the kindest and most sympathetic of teachers.’” There is, however, historical proof that on at least one prior occasion a President of Harvard was in Dane Hall. John Quincy Adams one day mounted his horse at Quincy and rode over to Cambridge to see President Quincy, who greeted him and pretty soon suggested that they call on Judge Story in his lecture room. The two distinguished visitors were gladly welcomed and were installed by Judge Story, one on each side of him, and he, at their request, proceeded with his lecture. Both of these eminent gentlemen were Stoics. President Quincy went through the New England winters without wearing an overcoat, and Mr. Adams, when at Washington, used to swim in the Potomac and light his own fire in winter and, I believe, read a chapter of the Old Testament and a chapter of the New Testament and wrote in what Henry Clay (who had been tripped up by Mr. Adams on some question of fact) called “that infernal diary of his in which he has put down everything that has happened since the adoption of the Federal Constitution”; and all this before breakfast. As Judge Story proceeded with the rapid and even flow of his lecture, he became aware of a smile upon the faces of his class. A quick glance to either side of him explained it, and, with a cautionary gesture and in a confidential tone, he said: “Young gentlemen, you see before you two melancholy examples of the evil effect of early rising. Always remember that it is of a great deal more importance to be awake after you are up, than simply to get up early.” There is another story which does not relate to the Law School, but which I will venture to tell, both as a picture of early Cambridge days, and as a manifestation of Harvard scholarship under adverse circumstances. There was then no Harvard Bridge and no horse-car line, and, when the culture of Cambridge went to Boston to hear Emerson lecture in the winter evening, the best available vehicle was a large, open, four-horse sleigh, owned and driven by a liveryman named Morse. On one such evening the lecture was over, and the return trip was on and so was a fine, powdery snowstorm. The sleigh proceeded across the Cambridge bridge and then through East Cambridge and so to Cambridge, stopping now on one side of a street to discharge passengers at a small house, and now on the other side at a big house, and so on, and the fine snow kept sifting down and Morse, perched high up in front, was growing more and more ghostly, when out from the sleigh rose the voice of James Russell Lowell, intoning a fragment from Horace, adapted so as to embrace the charioteer of the sleigh: “Pallida Mors[e] pulsat pede pauperum tabernas Regumque turres,” which Conington translates: “Pale Death, impartial, walks his round; he knocks at cottage-gate And palace portal.” I have found both pleasure and profit in reviewing these associations, especially the memories of our wise and friendly teachers, and of fellow-students who were soon to be entrusted with the grave interests, the sacred issues of life, liberty and property. As experience and observation widen, one realizes how thin is the crust which separates civilized society from the elemental fires below, and comes more and more to value influences which preserve and institutions which stabilize. Such an influence, such an institution is the Harvard Law School. Such an influence, such an institution is the Brotherhood of the Bar, indissoluble save by death or dishonor. [To be Continued] OUR THIRD BIRTH OF FREEDOM. [1] BY JUSTICE CHARLES W. PARKER. [1] Fourth of July Address at the Church of Saint Mary’s-by-the-Sea, Northeast Harbor, Maine. Published herein by request of the Editor of the Law Journal. See “Editorial Notes.” The exercises of to-day are a revival, temporary perhaps, but still a revival, of the good old custom of celebrating the anniversary of the Declaration of Independence by public meetings, with prayer and song, the reading of the Declaration, and a patriotic address. It was a good custom, though it tended to foster some erroneous ideas, particularly that England as a nation was blameworthy in Revolutionary times, rather than the political machinations of George III, the politician king. But it was a good custom for all that, and it is regrettable that it gave place to noise and fireworks. In the more recent years the date has been significant of other great crises in our history than that of Revolutionary times. That was, of course, the greatest of all, and never to be forgotten, as it marks the definite transition of thirteen colonies into thirteen States, organized for war purposes as a nation. There had been over a year of war, beginning with the skirmish at Lexington and the British retreat, followed quickly by Ticonderoga, Bunker Hill, and the investment of Boston. During the fall and winter there were the episodes of the burning of Portland; the capture of Montreal (later relinquished); the capture of Norfolk in December; Arnold’s heartbreaking expedition to Quebec through Maine forests in the dead of winter; the battle of Moore’s Creek, N. C., early in 1776, called the “Southern Lexington,” and, to crown all, the evacuation of Boston. These events and their concomitants, say the historians, made inevitable the Declaration of Independence, though the struggle began only as one for greater colonial self-government and modification of the taxing system. It was our first “birth of Freedom,” which has been re-born more than once since. I said the date marked other great crises in our history, and take time to mention two of them, both in the memory of living men. The first, and the greater, was in the midst of our Civil War, when the news of the twin victories of Gettysburg and Vicksburg flashed over the land. Dark days were still to come, and men were still discouraged; the war was to be proclaimed a failure by a great political party, but the power of the Rebellion was broken, and, after July 4, 1863, the setbacks to the cause of nationality were but temporary and comparatively insignificant. A second great crisis was safely passed. The third great Independence Day, great for what it brought to others than ourselves, was thirty-five years later, when the tremendous news came that the Spanish squadron, practically all remaining efficient of Spain’s navy, had been destroyed off Santiago. That day marked the downfall of Spanish power on this continent, and the liberation of oppressed peoples in both hemispheres; the culmination of a righteous war against a civilized and honorable foe, whose principal shortcoming was a hopelessly antiquated point of view and inability to deal intelligently with modern conditions. These great anniversaries all marked the definite passing of crises; the present one rather falls within a protracted period of crisis than marks the passing of one. If we were to celebrate the anniversary of the greatest crisis of recent times, I should name July 18th, 1918, when, as most of those here will remember, the glad peals of the bell above us sounded the news that the great allied offensive had opened. Of this more in a few minutes. But July 4 as a date does not even mark the signing of the peace treaty. It is suggestive, however, of two things to be borne in mind at this time: the genius of our country as a lover of liberty and fair play, and the relation of that genius concretely to the problems of the recent past, and the present, and the immediate future. The announcement of such a subject gives me pause, for it is one for mature consideration and careful discussion by the best of statesmen. But there are some considerations, rather obvious perhaps, but still worthy of inclusion at this time, which I should like to present. I mentioned a moment ago our love of liberty and fair play. With these goes a constitutional tendency to mind our own business, let other people’s business alone, and to avoid interference until convinced of its necessity. Until 1914 we felt secure on our own continent, gave no offense and sustained none. Fearing no war, we deemed preparation a waste of money and time; we were not disposed to pay expensive insurance premiums when our house was too far removed from others to be in danger of conflagration; against internal incendiarism we thought ourselves guarded. The warnings of Manila Bay in 1898 and Venezuela a few years later made no impression. Confident of our ultimate resources, we assumed no one would attack to court ultimate defeat; and above all, fair-minded ourselves, we were utterly incredulous of unfair-mindedness in others. Wise and farseeing men gave warning from time to time, but the impressions were momentary. And so, when in 1914 the assassination at Serajevo was quickly followed by an impossible ultimatum, and this in a very few days developed into a general European war, while our minds and souls revolted at a great injustice, our continental habit of thought resisted the suggestion that we should interfere to right that wrong. We did not see far enough; there were those who did; and I heard two wise men, summer residents here, agree in this very town in August, 1914, that this nation should take part, and at once. But public opinion did not run in that channel; nor was it led into it by our chosen rulers. These also were shortsighted, however their vision may have been clarified subsequently. We were told that a people should be neutral in thought as well as in deed; and so we stood by and watched Belgium, a neutral country, ravaged and pillaged; France invaded and destroyed; Serbia depopulated; Russia crushed. A great crisis like the battle of the Marne stirred men’s souls, but without bringing home to us as a nation the ultimate danger to our liberty. The consummate outrage of the “Lusitania” made an impression never effaced, but the rising indignation of the country was met with the caution that “a man may be too proud to fight,” and this crisis passed over also. But the great giant was stirring in his sleep. Trumpet calls came from men high in public esteem, among whom it is sufficient now to mention Roosevelt and Leonard Wood. “Preparedness” was their reveille. Our young men heard it, and in 1916 at Plattsburgh, and I think elsewhere, sprang up the training camps. The colleges offered their facilities; and although in the fall of 1916 there was still, as in 1860 and 1861, a large proportion of “peace-at-any-price” men, so large in 1916 as to permit the election of a President on the party slogan “He kept us out of war,” the time was fast growing ripe. Infatuated Germany, confident of victory in Europe and of later victory on this continent, or risking all on the submarine issue, went a step too far, and the giant woke up. Woke up,—yes; but about as helpless as Gulliver on the Island of Lilliput. The “man mountain” was tied fast with the cords of unpreparedness, red tape, departmental inefficiency, official jealousy and hostile intrigue. As in 1812, in 1847, in 1861 and in 1898, there was little or nothing ready; all had to be created. The lowering of the thunder-cloud had been unheeded. We had some destroyers and battleships and cruisers; these were sent at once where most needed. But to our shame, be it said, we had no trained men except the little regular army; no great guns; no appreciable number of field pieces; no machine guns; no small arms even, although our .30 cal. Springfield rifle is justly pronounced the best small arm in the world. I have shot it and know it well. They cost at that time about fifteen dollars apiece. A million of them would have cost 15 million dollars, a sum which in these days makes us laugh at its insignificance; it is one-half of one per cent. of our first Liberty loan. We had not even the special tools to make barrels for these small arms in quantity, and actually had to use English tools to make English type rifles, greatly inferior to our own, to get any at all for our men. The other day I saw it announced with pride in the newspapers that our rifle had won in competition over all others; but we did not have them when wanted, and probably have not made them yet. We had no field pieces to use abroad, and our artillery was equipped with the French .75. A few naval guns were landed and mounted toward the termination of hostilities. The aeroplane scandal is known of all men. And it was a year after we declared war before we entered Europe in force, and equipped then with English rifles and French field guns; and our men were transported to Europe mainly on British ships. But in this trying period several things stand out clear and bright, and as inspirations for the future. Two are psychological: the spirit of Americans of alien descent, and the participation of our great educational institutions; one, official as well as psychological, the selective service draft. The patriotism of the native American of the old stock goes, of course, without saying. The true ring of our heterogeneous population of foreign extraction was to many a joyful surprise. That so many who had never seemed to amalgamate with our customs, were largely uneducated, and did not even speak our language, should respond so willingly and gladly to the call to the colors, was a source of some amazement. Not being in their confidence or intimacy, many of us little realized their loyalty: which reminds me of an Italian bootblack who in conversation told me that he wished to travel. I spoke of the beauties of Naples and Sorrento and that neighborhood, and was rather abashed when he said: “Yes, but I would rather see my own country first.” I hope that lesson will always be fresh in memory. The same spirit of Americanism marked all nationalities, not excepting the German. The lists of draft registrants from, let us say, the east side of Manhattan Borough, reminded one of the Epistle for Whitsunday: “Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia, and in JudÆa, and Cappadocia, in Pontus, and Asia, Phrygia, and Pamphylia, in Egypt, and in the parts of Libya about Cyrene, Jews and proselytes, Cretes and Arabians,” all heard, and, with the deep realization of newly liberated peoples, showed themselves proud to answer the call. A recent war or Liberty loan poster is most suggestive. You read on it a list of men’s names, mostly unpronounceable, and suggestive, in the language of the same Scripture just quoted, “of every nation under heaven,” and this is summed up in the phrase, “Americans all.” Truly, a fitting tribute to our adopted citizenry, equal in loyalty, bravery, and self-sacrifice to the best of the old Americans. Among them, as just noted, the German names stand out boldly. They are so numerous, in fact, as to attract less notice in this country than they deserve; let us hope that they will be noticed and taken to heart in the misguided country where such names originated. I would that our American army, made up in large part of such men, could occupy Germany for a time as it formally occupied Cuba, for its own good, and give a much needed object lesson in the theory and practice of free institutions. These men, as I have said, were largely uneducated. I turn now for a moment to those in our great seats of learning, and to the heads and faculties and trustees of those institutions. Their stand was doubtless one to be expected, but is still worthy of remark. That the best blood in England suffered the most losses I think is conceded. That would have been the case with us if the war had broken on us as it did on Great Britain. As it was, our boys courted the posts of danger—aviation; submarine chasers; balloon observation, and so on. Some left college to enter the service; others stayed at college awhile, but in order to train and perfect themselves in the art of war. The colleges themselves became military schools; the dormitories barracks. For a short time some anxious mothers held back, and it is little wonder that they did. But it was not for long, and soon the woman who could wear a pin, with one, two, or more stars in it on her bosom, gloried in it, while she who wore a star of gold, in all her grief still cherished the solemn pride, as Lincoln called it, of having laid so costly a sacrifice upon the altar of her country. Whether the son was a student or ploughboy, a bootblack or factory hand, or the son of a millionaire, the feeling was the same. In fact, there was a tendency at first among the people at large to suspect the well-to-do and moneyed classes of holding back their sons. This soon wore off; and one of the most inspiring as well as instructive sights I ever saw was on this very island; the parade of war mothers on the Bar Harbor fair grounds; women in all walks of life, some with gold stars on their badges. College presidents who encouraged the entry of students into military service came in for adverse criticism, but that soon passed, and now that college, the largest percentage of whose students and graduates went into the service, points with the greatest pride to its record in that respect. I think, however, that the greatest achievement of the war, and the one that makes most for the future safety of our country, is the success of the selective service draft. All the books ever written, all the lectures ever delivered, attacking the pacifistic tendencies of our people, fail to accomplish anything of consequence in comparison with that achievement. Whether our people have undergone a great psychologic change I know not. It is certain that at no time previously had they submitted willingly to be drawn into service. For a century and a quarter militia and volunteers were the basis of the armed power on land. During the Civil War drafting meant riots. During all our prior history bounties for enlistment were an accepted fact. Some of us may have looked into General Upton’s great book called the “Military Policy of the United States.” Until recently it was withheld, for some reason, from general publication. It is the basis of a later work by another author, “The Military Unpreparedness of the United States,” which appeared about 1916. Both exhibit in startling fashion the fundamental evils of volunteering and bounties. But not until the stress of this great war did the old theories give way. We had a real man as Provost Marshal General, and his name is Enoch H. Crowder, and my own University (Princeton) and others as well, honored themselves recently by conferring the LL.D. degree on him. I care not whether he evolved the draft machinery himself or whether it was suggested by others. Probably it was a result of both processes; at least he knew a good thing when he saw it, and, like other large men, was unconcerned about whose idea it was. Here was the problem: several million men of age 21 to 31 to be listed, with particulars about them; those available for military service to be selected; from these, a certain number to be drawn by lot. The system used in the Civil War was hopelessly inadequate; army officers could not be spared to supervise the lists; how were the names to be obtained? How recorded? How drawn? The origin of the fundamental plan was told me by General Crowder himself on the day when he received his Princeton degree. He said that he was in his office racking his brain for a method of registry that would not take a year to operate, when a Congressman came in, and to him he told his difficulties. The interview terminated much like that of Alice in Wonderland and the Caterpillar, who told her how to change her height as it crawled off through the herbage. As the anonymous Congressman was going out through the door, he said over his shoulder: “If they can elect a President in one day, they can register in one day.” Let us thank God that the General had good ears, and excellent communication between them and an active brain. “Elect in one day”—48 States; each with so many counties; each county having so many municipalities; each municipality so many election districts; civil, not military, officers for all of them; officers known to and knowing the people; Governors; mayors, election boards. Why not? Here is the machinery ready made, and at hand! All that is needed is to get it going. Forty-eight Governors responded enthusiastically; all forty-eight kept the great secret ready to pass it on to local officials; the result we all know. Two other things were needed; the willingness of those that were of draft age to come and say so; and the confidence of the public in a fair drawing. The latter was secured by the use of master numbers applicable to every district; the former came naturally as a result of the system itself. Every man of draft age became qualifiedly a volunteer, and marched to the polling place, saying: “Here I am when wanted.” To this the abolition of bounties and substitutes, the curses of the old system, largely contributed. These are three of the great things for which we should give thanks on this Fourth of July: the solidarity of Americanism; the leadership of our Universities, and a practical and popularly acceptable method, now a precedent for all time, of calling up the man power of the nation. A fourth is the resultant of them all: a great army of young men (as has been said many times), future leaders in political life, keenly alive to the real freedom of our American system and determined to uphold it and to stand no nonsense about it. But for the consciousness of our possessing this element, and but for our faith in it, we might well look with most anxious foreboding at many troublesome and dangerous questions now uppermost in our national life. For in the midst of triumph sounds the note of anxiety—many discordant notes in fact. Will the treaty finally be ratified? Will peace last? Will the Germans respect their promises and fulfill them? Or will they, already talking again of a scrap of paper, straightway begin to prepare for a fresh coup twenty-five years or so hence? Must the peace-loving peoples of the world still apply themselves to that most distasteful of all tasks, the invention and manufacture and practice of means of destroying life and property in war? And what about internal affairs? Are individual enterprise and talent to be smothered by rule? Is the Constitution of the United States a worn-out old one-horse shay, ready to drop to pieces all at once? Is the Senate a back number? Is the peaceful rule by majority to be exchanged for Bolshevik dictatorship? Is our transportation industry to be ruined by taxes and rate control at one end and cost of labor at the other? Should we take an active part in the affairs of the Eastern hemisphere, and invite European and Asiatic powers to help regulate our continent; in short should the national policy called the Monroe Doctrine be abolished? These and many similar questions are pressing for solution. They are not mere fancies; they are not partisan issues, though many stentorian shouters proclaim them such; they are live and vital questions which must be solved and will be solved, doubtless at great cost in treasure and perhaps at some cost in blood. That they will be rightly solved in the end I have no doubt. Nothing is settled, said someone, I forget who, until it is settled right. It is for you and me and all of us to bear in mind that our work is only half done: that our sacrifices and labors and efforts during this great war that is just closed, I hope forever, are but the beginning, and that we owe it to our country and our children to do what we can to encourage sanity, deliberation and temperance of thought, speech and action in all classes of the people. Mild as that sounds, it is a stupendous task to perform. There rarely was a time when unthinking people were not more inclined to listen to a demagogue rather than a statesman; and few people think at all; still fewer think straight. It is a rebellious people, saying “Prophesy not unto us right things, speak unto us smooth things, prophesy deceits.” It is a time of epithets rather than of logic, of lying epigrams rather than solid truths. All the wealthy, it seems, are corrupt; all money in large amounts is tainted; even the scales of justice are accused of falsity. Ebullitions of this kind often indicate an undercurrent little suspected. I realize that I am saying little or nothing that is new, and I have no new methods or theories to offer for meeting the situation. One thing is certain; before we can teach other people to think clearly, we must be able to think clearly ourselves; to formulate and make others realize the real issues; to perceive the fallacy or confusion in the opposing line of thought, and point it out without offense. It is a maxim among lawyers that a case well stated is half argued, and nothing can be more to the point at this time. We still have real statesmen; let us listen to them with attention and take care not to hurry too much in deciding. Impulse leads to irretrievable error much oftener than does deliberation. Sober second thought is usually the better. But, notwithstanding this anxiety, let us rejoice in the great victory of Liberty over autocracy and militarism. As we look back over the last five years we see many a vision; some dreadful nightmares, others with the seeming of the good God taking direct part in the affairs of men. The rape of Belgium, the miracle of the Marne, the tedious deadlock in the trenches, the ghastly failure at Gallipoli, the collapse of Rumania, the tragedy of Russia, the debacle in Italy, the heroism of Ypres and Passchendaele and Verdun; then the ever present dark shadow of the submarine; the agonized cry of exhausted England and France for men, men, men, as one offensive broke towards Calais, another towards Amiens, another straight for Paris by way of Chateau Thierry, while our brave boys seemed to be training interminably; the halting of the Hun at Belleau Wood and Chateau Thierry; the crouch of the American wildcats for their spring; until, as men’s hearts seemed to fail them, and the cry went up, “How long, O Lord, how long?” the little bell of St. Mary’s-by-the-Sea rang as it had never rung before. Peal after peal: some good news: what is it? “The Allies have attacked; the front between Soissons and Chateau Thierry is all crumpled up: the Germans cannot hold the salient.” Smash after smash: it is our turn now; in Flanders, in Picardy, in Champagne, in Lorraine: by Britain, by France, by America, singly, doubly, and all together; each day a new victory headlined; the military lines approaching the French boundary; the thumbtacks moved each day on the war maps; St. Mihiel salient wiped out; Rheims freed of bombardment; Argonne Wood, our present day battle of the wilderness, takes time and its awful toll of human lives, but yields, for the first time in history, to an attack by American troops; Grand PrÉ and open country beyond. Forward again, until a great railroad line is cut, and Sedan, the catastrophe of 1870, becomes the final triumph of 1918. How we watched the telegraphic bulletins! How we studied the maps! Until, after one false report of an armistice, the real armistice came, and our peace-loving people, joint victors in the greatest war of all time, turned into a horde of lunatics. What a day it was, that eleventh of November! I was in Boston to attend the wedding of a nephew, a Colonel of Artillery, who had commanded his regiment at Cantigny and had later been ordered to this country in connection with organization and training of troops. The guests had to walk, as no vehicle could thread the crowd. Late editions of the papers contained the armistice terms in full, and, as our somewhat numerous family was gathered for five o’clock tea, one member was deputed to read the terms aloud, and there were attentive listeners. After he had finished, no one spoke for a moment; and then a voice said, “That seems to cover the ground.” Truly we have much to thank God for, this Fourth of July. We have left undone some things that we ought to have done, and we have done some things that we ought not to have done; but I cannot say now that there is no health in us. Once again we have had a new birth of freedom; once again we highly resolve that our dead shall not have died in vain; once again we resolve, and I think that we have shown by deeds our determination, that “government of the people, by the people, and for the people shall not perish from the earth.” AMERICAN STEEL FOUNDRIES v. TRI-CITY TRADES COUNCIL. (U. S. Supreme Court, Dec. 5, 1921). Strikes—Picketing—The Clayton Act—Circumstances to Be Considered in Injunction Case. [Note—The following case on picketing is so important, being the latest and a final decision of the highest Court in the United States on a matter which has been treated differently by various Courts, that we reproduce the opinion here, as published in the “New York Times.”—Editor]. TAFT, Ch. Justice: This is a picketing case. Only two men in the employ of the Foundries had responded to the calling of the strike by the Tri-City Council. They were picketers, were defendants, and were enjoined. Only one of them was a member of a union of that council. The case involves, as to them, the application of Section 20 of the Clayton Act, of which the provisions material here are those which forbid an injunction in behalf of an employer against, first, persuading others by peaceful means to cease employment and labor; second, attending at any place where such person or persons may lawfully be for the purpose of peacefully obtaining or communicating information; third, peaceably assembling in a lawful manner and for lawful purposes. The Act emphasizes the words “peaceable” and “lawful” throughout the phrases which were used. We do not think that these declarations introduced any new principle into the equity jurisprudence of the Federal Courts. They are merely declaratory of what was the best practice always. Congress thought it wise to stabilize this rule of action and to render it uniform. Its object was to reconcile the rights of the employer in his business and in the access of his employÉs to his place of business without intimidation or obstruction, on the one hand, and the right of the employÉs, recent or expectant, to use peaceable and lawful means to induce prudent principles and would-be employÉs to join their ranks, on the other. If, in their attempts at persuasion or communication, those of the labor side adopt methods which, however, lawful in their announced purpose, inevitably lead to intimidation and obstruction, then it is the Court’s duty—and the terms of Section 20 do not modify this—so to limit what the propagandists do as to time, manner and place as to prevent infractions of the law and violations of the right of the employÉs and of the employers for whom they wish to work. In going to and from work, men have a right to as free passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accosting by one of another in an inoffensive way and offer by the one to communicate and discuss information with a view to influencing the other’s action, are not regarded as aggression, or a violation of that other’s right. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, and following do become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. The nearer this is to the place of business, the greater the interference with the business and especially with the property right of access of the employer. Such an attempted discussion attracts the curious, or, it may be, interested bystanders. They increase the obstruction as well as the aspect of intimidation which the situation quickly assumes. In the present case, under the conditions which the evidence discloses, all information tendered, all arguments advanced and all persuasion used were intimidation—they could not be otherwise. It is idle to talk of peaceful communication in such a place and under such conditions. The numbers of the pickets in the groups constituted intimidation. The name “picket” indicated a militant purpose, inconsistent with peaceful persuasion. The employÉs were made to run the gauntlet. When one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peaceable, and may be properly enjoined by the specific term of “picketing” because its meaning is clearly understood in the sphere of the controversy by those who are parties to it. We are supported in that view by many well-reasoned authorities, although there has been contrarity of view. A restraining order against picketing by that name will advise earnest advocates of labor’s cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerves and physical strength and courage. But while this is so, we must have every regard for the Congressional intention manifested in the Act to the principle of existing law which declares that ex-employÉs and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful, economic struggle. Regarding as primary the rights of the employÉs to work for whom they will, and to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employÉs, what can be done to reconcile the conflicting interests? Each case must turn on its own circumstances. It is a case for the flexible, remedial power of a Court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. McGANN CO. v. LABRECQUE CO. (Essex Circuit Court, Jan., 1922). Action of Trespass—Lease and Sale of Property—Limitation of Term—Jurisdiction of District Court. Case of Joseph F. McCann, trading as The McGann Company, against La Brecque Company. Action at law. Trespass. Mr. Milton M. Ungur for Plaintiff. Messrs. Burnett, Sorg, Murray & Duncan for Defendant. (Conclusions). Dungan, J.: This is an action of trespass brought by the plaintiff against the defendant for the wrongful removal of plaintiff’s goods from the defendant’s premises under the following conditions: P. Ballentine & Sons, a corporation, demised the premises in question to defendant by lease dated August 1st, 1917, for a term commencing November 1st, 1916, and terminating April 30th, 1926. The lease provided: “It is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months’ written notice to the party of the second part; and, in lieu of compensation, it is hereby agreed that the rent shall be waived during the six months notice to vacate.” |
|