FRANK J. SCHNEIDER, Editor

Volume XIV

It is with profound regret that we announce the death of Denis A. Hayes, general president of the Glass Bottle Blowers' Association of the United States and Canada, he having passed away Tuesday, January 2, at the Hotel Windsor, Philadelphia, Pa. Death was due to pneumonia. Mr. Hayes had been in failing health for the past few years and only his wonderful vitality and remarkable will power kept him on his feet during this period. His indomitable will made him stick to his task and fight the battle gamely until the end.

Born of poor parents in County Clare, Ireland, he came to this country at the age of seven years. With his father, mother and a sister, he located in Zanesville, O. For a while he attended night school and worked for a time on a farm.

When a youth he became a worker in a glass factory and ever afterward his interests were centered in the trades' union movement.

He served as an officer of the Pittsburgh Trades Assembly from 1890 to 1894. In 1894 he was elected vicepresident of the Glass Bottle Blowers' Association, and for several years thereafter carried on a lively campaign in the interest of trade unionism in the State of Indiana. This campaign, whose vigor attracted the attention of the whole country, resulted in the organization of different trades and made him a nation-wide figure.

New Jersey was the next field invaded. He organized all the non-union men in the glass bottle industry in that State, and was instrumental in removing hundreds of small boys from the glass factories and having them attend schools until they were physically fit to work.

He has been president of the Glass Bottle Blowers' Association for the past 22 years, being unanimously elected each year.

At the American Federation of Labor Convention in Louisville in

Number 1

1900 he was elected to the Executive Council of the A. F. of L., and each year since has been re-elected to this position.

In the death of Denis A. Hayes the International Union of Elevator Constructors has lost a staunch friend, he having supported us in our many struggles for existence.

Mr. Hayes was a member of many organizations, including the American. Academy of Political and Social Science, the Geographical Society, National Civic Federation, Benevolent Protective Order of Elks and Knights of Columbus. He was a close friend of Samuel Gompers, president of the A. F. of L.; Frank Feeney, president of the I. U. E. C., and John Mitchell, former leader of the United Mine Workers of America.

He was unmarried and lived for the past 22 years in the Hotel Windsor.

His remains were on view at the funeral parlors of Oliver H. Bair, 1820 Chestnut street, Philadelphia, Pa., Wednesday, January 3, from 1 to 9 p. m. Men, women and children from all walks of life availed themselves of taking the last look at their beloved friend. Various delegations paid their last respects to the peerless leader, among them being a representation from the A. F. of L., headed by President Samuel Gompers. The Building Trades Council and Central Labor Union of Philadelphia and vicinity assembled at the office of President Frank Feeney and attended in a body; also the local unions of glass bottle blowers. President Gompers was requested to say a few words, and spoke of the sterling qualities and the good work accomplished by Denis A. Hayes.

The remains were shipped to Zanesville, O., his former home, he being buried January 6. His funeral was attended by many high union officials and glass manufacturers.

High Requiem Mass was celebrated at St. Thomas' Cathedral and a service was said at the residence of John A. Voll, who succeeds him as President.

Whoever works for a living knows what labor is; and all but lawyers and judges are presumed to know the law. So I shall not try to explain either the one or the other. But maybe I can tell a story about organized labor and judge-made law.

This is a story with a moral, but I shall save the moral to end it with. And it is a story of today, though it begins a long time ago. It begins so long ago, indeed, that in telling it I shall set out in the good old-fashioned fairy-story fashion, notwithstanding

that this is no fairy tale.

"Once upon a time," then, there was a king of England whose name was Henry I. With his kingly crown he acquired a lot of private secretaries whom he organized into a working force with one of their number as foreman. The foreman was the King's Chancellor. It was no sinecure, this foremanship; for part of the Chancellor's job was to keep the King's conscience, and as King's consciences went in those days, that duty alone almost called for the wit and nerve of an animal trainer.

Slipping down from there a couple of centuries toward our own time, we may find the Kings and their Chancellors had meanwhile died, one after another, making a long procession of office holders from the cradle to the office and from the office to the grave.

For it was only the office holders that died, and not the office. By a legal fiction which still survives, the office holder and his office were quite different, the one from the other. Office holders were weak and selfish mortals of few years and full of trouble; but offices were things of power, of stability, of virtue untarnished and untarnishable, and very types of the square deal everlasting. When a king died the cry would go up that the king was still "doing business at the old

stand," thus: "The king is dead, long live the king!" It was like that also with king's chancellors. Nobody shouted it from the house tops about chancellors, as they did about kings; but chancery lawyers used to mention it when they got into chancery lawsuits, such as Dickens has told about, which had been started before their great-grandfathers were born.

When those two hundred years had gone by after Henry I. organized his private secretaries under the Chancellor as foreman, the King's conscience that needed keeping by a Chancellor was Edward's-the First of those Edwards of whom the Seventh has recently died. By that time this particular Chancellor's predecessors had very much increased the importance of their job. Among other things they had set up a factory for turning out judge-made law.

In that factory the principal raw material was the King's conscience, for this is what it was the Chancellor's duty to keep. Nor did the supply ever give out. A particular King might have no personal conscience at all, and his Chancellor might have none of his own to use as a substitute; but the kingly office always had a conscience handy, and to this any Chancellor worth his salt would go whenever he got an order for a consignment of judge-made law.

Well, the Chancellor's factory was not unionized. The union law shops were run by the regular judges, who were called "law judges" to distinguish them from "chancery judges." And the Chancellor had assistants, so bulky had the King's conscience got to be, and so complex its throbs. This was due to a growing line of chancery precedents-precedents being to law what recipes are to cookery, except that the older they get the more

sacred they become and the more savory the dish.

For

The way in which the Chancellors had got to making law out of the King's conscience was as natural as could be. Law judges applied the law to all cases alike, just as they found it. At least they said they did, and it was contrary to the rules of their union not to do so. This gave Madame Justice many a misfit. general rules of law, when applied rigidly to particular cases, would sometimes produce absurdly unjust consequences, especially as they rested more on ancient custom than on moral principle. It was a little like the old "hand-me-down" clothing stores, where garments were made to fit no man in particular but any man in general. So the Chancellor set up his non-union factory for turning out judge-made law. He made particular laws to fit each case as it came before him, and did as well as the King's conscience and his own skill permitted. At least he said so.

Suppose one person threatened to do an injury to his neighbor's property, and the person whose property was threatened asked the law judges to protect him. The law judges were likely to say, though in the more stilted language of their time and profession: "You are altogether too previous; wait until that wicked man does what he threatens to do; then come to us, and we will make him smart."

But suppose the fearful person explained that if he waited until the threatened injury was done it would be too late; for after that nothing could restore his rights.

Then the law judges might tell him that possibly they could punish his vicious neighbor just for the threat, but not very severely; or make him give bonds to pay for any damage he might do.

But the suitor would respond: "That wouldn't help, either; for whether you punish him for the threat, or punish him for the wrong if he does it, or make him give bonds to pay damages,

the wrong he threatens me with, if once done, cannot be repaired. You must prevent his doing it."

The law judges would then gravely assure the suitor that much as they sympathized with him they could not help him; that there was no power in human law to prevent any man from doing anything, unless it were to hang him in anticipation of what he might do.

But suppose, now, that the disappointed suitor got the ear of the Chancellor with his tale, and asked the Chancellor if all that folderol were in keeping with the King's conscience. The Chancellor would say something like this: "The King can do no wrong, nor permit any of his subjects to wrong another. What your neighbor threatens is contrary to consciencethe King's conscience. If those law judges cannot head him off, I will." So he would issue an injunction ordering the man who made the threat not to carry it out.

Do you ask how that order could prevent the carrying out of the threat any more than the law itself could if the law already forbade the act? You have it.

Of course, the injunction order could not prevent the act any more than the law could unless it scared the man more. But the old Chancellors could have explained the difference. If the man enjoined were charged before law judges with breaking the regular law, he would have to be indicted by a grand jury on the testimony of witnesses, and then tried by a jury of his equals on the testimony of witnesses who would have to submit to crossexamination to see whether they were lying or not, and then he would have to be convicted by that jury of his equals. All this before he could be punished. The law judges could not punish men for breaking laws unless they were first proved guilty and duly convicted; for it was contrary to their rules to punish any person who might in reason be innocent.

Not so with the Chancellor's injunction. If a man were charged with

breaking that, the Chancellor himself could try him, with or without a jury; and could himself convict the man, himself impose any penalty he wished to impose, and himself decide whether and when to grant a pardon.

So the question of chancery injunctions was after all not a matter of heading off wickedness; it was a question of whether the person charged with wickedness should have a trial under the law of the land, applicable to all persons alike, or a Chancellor's trial under judge-made law ground out at the Chancellor's own factory for each particular case.

Nor did the Chancellors stop with making particular procedure laws for punishing breaches of the regular laws. Very often they would decide that it was contrary to the King's conscience for this man or that to do particular things against which there was no law at all outside the Chancellor's notion of what the King's conscience ought to be. And in those cases, just as in the others, if the injunction was disobeyed, or the Chancellor thought it was, he did the punishing himself and in his own way. No red tape for him. He punished whomsoever he hit upon as guilty, according to his own judge-made laws of procedure for distinguishing the guilty from the innocent. You see he was King, judge, jury, witness, sheriff, and parliament, all in one whenever he wanted to be.

This was the beginning of what Governor Altgeld of Illinois hundreds of years afterwards, and in a country that neither old King Henry nor his Chancellor ever heard of, called "government by injunction," which means government of organized labor by organized labor "sweaters," through judges who have got their training for judgeships by serving as lawyers for the "sweaters."

But to get back to those old Chancellors. Of course, they had trouble with the law judges. There are some pretty good things about their "butting in" with the King's conscience up their sleeves, but there were also some

bad ones. And the law judges were jealous, anyhow. Perhaps the worst thing about the Chancellors was the supple way in which they were getting to sidestep the time-honored safeguards of innocence in the criminal law such as trial by jury and crossexamination of accusing witnesses. It is likely that jealousy had quite as much as anything else to do with the quarrel that sprang up between the Chancellors and the law judges, but this makes little difference now. The quarrel resulted in a pretty good compromise, in which there was one highly important stipulation. Mind this now, for it profoundly and vitally affects organized labor even in our own distant time and country.

The Chancellor agreed not to inject the King's elastic conscience into criminal matters. A wise stipulation that, in the interest of personal rights. If the Chancellor could meddle in criminal matters, he might finally destroy the safeguards of English liberty; and while England had more than the usual supplies of those safeguards, she had none to spare.

But this was prevented by that compromise between those old English chancellors and those old English judges. The compromise left the Chancellors, with their King's conscience, to deal with quarrels between property claimants over peculiar questions of property rights; but questions of human liberty, and of all other human rights except property rights outside of crime, were given up by the Chancellors.

This is important to Americans. For our country was originally a collection of British colonies, governed by the laws of England, and when they seceded from the mother country in 1776, they retained the British laws at that time in force among them. So we had chancery courts, and law courts apart from chancery courts, with different groups of judges in each, and our chancery courts were not allowed to manufacture judgemade law affecting human liberty or freedom of speech or of the press, nor