Clarence Darrow said he had never met a “kindlier, gentler, more generous man than Eugene Debs.” He described Debs as the “bravest man I ever knew.… He had the courage of the babe who had no conception of the world or its meaning.”
Darrow shared a similar background with the labor leader. A product of small-town Ohio, he had, like Debs, largely educated himself. Darrow became a lawyer and settled in Chicago. Both men were ambitious. Darrow, a protégé of John Peter Altgeld, had served a stint as corporate counsel of the City of Chicago, then gained a prestigious position with the Chicago & North Western Railway.
Like Debs, Darrow had grown more radical in his views as he grew older. He decided that corporate law was a form of “servitude,” a “bum profession … utterly devoid of idealism.” In 1894, he stepped away from his lucrative job and began a full-time career defending the underdog. Joining the team of lawyers who would try to keep Debs and his fellow ARU directors from going to prison, Darrow became the chief antagonist of Richard Olney.
The attorney general had declared that “no man should be allowed to play the part Debs did last summer and go unwhipped of justice.” No punishment that Debs was likely to incur, Olney said, “will be commensurate with his offense.”
On September 5, 1894, Darrow joined Stephen Gregory and the ARU’s original lawyer, William Erwin, for the first of two trials. Judge William Woods would decide whether Debs and ARU directors Howard, Keliher, and Rogers had been guilty of contempt of court in defying the July 2 injunction. The hearing took place in the courtroom of the U.S. Seventh Circuit Court of Appeals in Chicago’s new Monadnock Building. Every seat was taken and fifty spectators stood.
Over the next few weeks, U.S. Attorneys Milchrist and Walker called a parade of witnesses, mostly railroad supervisors and detectives, to prove that Debs was indeed the dictator of the strike. Fully nine thousand telegrams had gone out under Debs’s name. Copies were hauled into court and everyone waited impatiently while Western Union manager E. M. Mulford sorted through them to find specific wires. The government presented in more detail the evidence from the preliminary hearing: the endless directives to the locals, the joking “buy a gun” wire, Debs’s power to clear animal carcasses from the stockyards, his intervention on behalf of Mrs. Stanford.
The defense team surprised onlookers by calling no witnesses and introducing no evidence. The lawyers had decided to save their ammunition for the criminal conspiracy trial, which was now scheduled to be heard in January. That charge bore heavier penalties—two years in prison—and a greater onus of guilt. They did not want to tip their hand.
But Darrow did not miss the chance to take some jabs at the prosecutors. Thomas Milchrist had said he never knew “four more dastardly criminals … than these men.” Darrow noted that “there are various kinds of cowards. It was not brave of this man Milchrist to stand in court … and heap vituperation on these men who cannot reply.” He referred to Milchrist as a “puppet in the hands of the great railroads corporations.” Reporters said they saw Milchrist “turn red in the face.”
Woods took his time deciding the case and crafting a suitably grandiloquent opinion. Finally, on December 14, he began to intone his decision to a crowded courtroom. He spoke for an hour before it became clear that he was going to find the defendants in contempt. If the men “advise workmen to go upon a strike, knowing that violence and wrong will be the probable outcome, neither in the law nor on morals can they escape responsibility.” The Sherman Antitrust Act, he said, gave the government sufficient jurisdiction even though Congress had not directed it “at organizations of labor in any form.”
Before banging his gavel, he sentenced Debs to six months in jail, the other directors to three months. Because of crowding in the Cook County Jail, they would serve their sentences in Woodstock, the rural seat of McHenry County sixty miles to the northwest. The men reported to the Woodstock courthouse on January 8. Debs wrote his parents: “Would you believe it? The sheriff Mr. Eckert is an alsacian and a noble man. The daughters treat me with the greatest kindness.” He went on to reassure them that “my disgrace is doing much to arouse public conscience. No disgrace attaches to the family. You need not blush.”
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The men spent sixteen days in Woodstock. On January 24, 1895, they were released on bail in order to return to Chicago for their trial on the criminal conspiracy charge. Along with another dozen alleged conspirators, they were to face Judge Grosscup in federal district court.
For the defense, Gregory questioned how Edwin Walker could sit at the prosecutors’ table when he was a paid employee of the Chicago, Milwaukee & St. Paul Railroad. The government’s case, Darrow said, was a “club to defeat the effort that was being made to better the condition of workingmen and women.”
The spontaneous lawlessness accompanying the boycott could not have been the product of a conspiracy, the defense asserted. ARU members had tried to keep trains without Pullman cars running, but the general managers had shut down the nation’s rail lines by adding Pullmans unnecessarily.
Debs took the stand in his defense. Expecting to see the wild-eyed “dictator” they had been reading about in the papers, the jurors were surprised by a witness who looked and spoke more like a small-town banker. He presented his side of the story in cogent detail.
Darrow, always a master of courtroom drama, achieved a coup when he produced excerpts from the minutes of General Managers’ Association meetings—how he had obtained them was not revealed. They showed the managers plotting with detectives to take strikers’ names and making plans to reroute trains to annoy the public. Their frank goal was to utterly destroy the American Railway Union. The real conspiracy, he said, had been mounted in these secret conclaves, not in the open meetings of the ARU.
George Pullman, whom Darrow described as “that man whose name is odious wherever men have a drop of blood,” played a bit part in the trial. Remembering his unpleasant grilling before the Strike Commission, he panicked when a process server appeared at his office with a subpoena to appear as a witness in the conspiracy trial. Pullman ducked out the back door, hurried to the train station, and left Chicago. He never did testify, nor was he held in contempt of court.
“There is something wrong in this country,” Debs noted, when “judicial nets are so adjusted to catch minnows and let the whales slip through.”
By that time, the trial was in limbo. It became clear that Darrow intended to counter the charges by putting the general managers on trial and exposing their collusion with the government. The illness of a juror gave Judge Grosscup an excuse to call an abrupt halt to the trial. Convinced the case was going their way, defense attorneys suggested appointing a new juror and reading him the previous evidence. Grosscup, exchanging meaningful glances with the prosecutors, refused. He dismissed the jury and initiated a series of delays. The government, unwilling to pursue a losing battle, finally dismissed the charges.
But the conviction for contempt stood and the resulting jail sentence still loomed.
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It was Debs’s good fortune that the partner of his lawyer Stephen Gregory happened to be James Harlan, the son of Supreme Court Justice John Marshall Harlan. The elder Harlan agreed to hear the defense team’s application for relief in the contempt case. Although he refused to ascribe a flaw to Judge Woods’s opinion, he did decide that there was enough question about the justice of the procedure to merit a review.
The writ of habeas corpus that he issued was the narrow crevice that Debs’s case slipped through to gain a hearing from the full Supreme Court. The nation’s highest tribunal would weigh in on the key issues of the strike. Was the injunction a proper weapon to use in the case of a labor dispute? Had the executive branch and the courts overstepped their authority? Did the collusion of Olney with the railroad managers put the government’s actions beyond the letter or spirit of the law?
To help argue the case, Gregory and Darrow recruited eighty-one-year-old Lyman Trumbull, a legal heavyweight who would lend needed gravitas to the defense arguments. Trumbull had been a U.S. senator from Illinois and was famously the author of the Thirteenth Amendment abolishing slavery.
On Monday, March 25, the U.S. Supreme Court justices filed into the Old Senate Chamber in the Capitol, the semicircular room where the court had met since 1860. The chamber was packed, the gallery above crowded with the type of working people who rarely listened in on the proceedings. The customary decorum was frequently interrupted by grumbles and cheers as the lawyers argued the case known as In re Debs.
Trumbull led off the first day of arguments. In a sonorous voice, he declared that “refusing to work for a railroad is no crime” even if it delayed the mail or slowed interstate commerce. “A lawful act and not done for the purpose, it is no offense.” Government should not use its civil writs simply to protect private property. If strikers committed crimes, they should be charged with crimes, not entangled in the injunction net, where trial by jury was denied them. Stephen Gregory expanded on Trumbull’s argument. The liberty of Americans was at stake, he said.
The finale came the next day. It was unusual for the U.S. attorney general to supersede the solicitor general and argue a case personally before the Supreme Court. But Richard Olney had shaped the government’s anti-strike strategy from the beginning and he was determined to see it through.
Olney scanned the faces of the workingmen who looked down from the gallery. Raised amid wealth, he embraced the social Darwinism that ratified his life of privilege. “Man is by nature a fighting animal,” he had said. The victors deserved the spoils, including the twenty-six-room summer house on the coast in Falmouth that he enjoyed in addition to his Boston mansion. He took personally the threat Debs posed to America’s wealthiest citizens.
Knowing that the case for criminal conspiracy was unlikely to yield a conviction, he badly needed a victory here. He elected to shift the argument away from the Sherman Antitrust Act as the basis for the court’s authority. He declared that act to be “an experimental piece of legislation.” He wanted to place the government’s use of injunctions to break strikes on a firmer foundation—the Constitution itself.
Olney argued that Judge Woods had “decided rightly enough but upon the wrong ground.” He emphasized the government’s “absolute” constitutional authority over interstate commerce and mail delivery. No legislation was needed. If the Supreme Court justices accepted his reasoning, they would slam a permanent lid on disruptive strikes.
He swept aside the notion that the defendants were not responsible for the destruction and disorder that the strike had caused. They must be, he said, unless “a man can wantonly touch the match to powder and yet be blameless because not rightly realizing the ensuing devastation.” The justices gave Olney their “closest attention,” the Chicago Tribune reported, without once interrupting for a question.
Clarence Darrow addressed the court last. With the face of a blacksmith, he regarded the courtroom from beneath his perpetually skeptical eyebrows. His baritone voice bottomed in gravel, he explained that his clients were not criminals. They had acted on the purest motives. Olney, with all his abstract arguments, had left out the crucial human element.
Darrow insisted that the government had no authority to issue an omnibus injunction. The Sherman Antitrust Act made no mention of labor strikes. The defendants had not broken the law. They had not even violated the injunction. The telegrams showed them urging men to exert a right and to avoid violence. The men were justified in leaving their jobs because “to deprive workingmen of this power would be to strip and bind them and leave them helpless as the prey of the great and strong.”
“Strikes are deplorable,” he said, “and so are their causes.”
Darrow, speaking in the spirit of Eugene Debs, dug down toward the fundamental issue. Laborers were free men, “but freedom does not consist alone in political rights, or in theories of government, or in theories as to man’s relation with the state.” Freedom was not obedience or deference or simple order.
Darrow made the case that solidarity was a necessary component of freedom, that liberty could not be separated from community. Labor organizations were based on the common interest of workingmen and on the idea that an injury to one is the concern of all.
The railroad men had laid down the implements of their labor “not because their own rights have been invaded, but because the bread has been taken from the mouths of their fellows.” Their right to strike was “the right to consider each other ‘brother.’” To deny that right “would leave each individual worker completely isolated and unaided to fight his battle alone against the combined capital.”
Richard Olney later said that the pleadings of the defense lawyers had not impressed him. He scoffed at the fact that they had resorted “to heated declamations about individual liberty.”
The fate of Eugene Debs and his fellows, to some extent the fate of the American labor movement, was left for nine black-robed men to decide. When the arguments were over, Olney invited Clarence Darrow and the other defense lawyers to his home for dinner. The fierce advocates for labor soon found themselves trading pleasantries and sipping fine wines with the government attorneys, Chief Justice Melville Fuller, Secretary of War Daniel Lamont, and their wives. A memorable scene.
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The men had to wait until May 27, 1895, for the unanimous decision of In re Debs. The petition was denied. The judgment of the lower court stood.
Justice David J. Brewer explained the reasoning of the court. He was a Republican and a staunch supporter of corporate power. He first took up the question of whether the government had the authority to prevent impediments to interstate commerce and to the prompt delivery of the mail. Yes, he wrote, “the strong arm of the national government may be put forth to brush away” all such obstructions. He agreed with Olney that those powers derived directly from the Constitution. The government could “execute on every foot of American soil the powers and functions that belong to it,” by physical force if necessary.
What was more, the “power of a court to make an order carries with it the equal power to punish for disobedience of that order.” To seek an injunction was not a usurpation of power but a decision to submit the question to the “peaceful determination of judicial tribunals.”
The thinking behind the decision was influenced by men like Brewer’s uncle, Justice Stephen J. Field, who had sat on the Supreme Court for more than thirty years. Born during the presidency of James Monroe, Field still thought of America as a place where business owners could form contracts with their employees as equals and where the courts had to protect private property from taxation by kings or their modern equivalents.
Field’s thinking had prompted the same Supreme Court to invalidate a modest federal income tax passed by Congress. The ruling was based on a constitutional technicality, but the justices asserted they were warding off an attack on property by “mere force of numbers.” Democracy was suspect. The justices were in more accord with what a dissenting opinion called the “sordid despotism of wealth.” That same year, the court would declare that the American Sugar Refining Company was not subject to the provisions of the Sherman Antitrust Act, even though it controlled 98 percent of the nation’s sugar market. The following year, in Plessy v. Ferguson, the court would make racial segregation the law of the land.
After the Debs decision, five state governors said the court had “flagrantly usurped jurisdiction first to protect corporations and perpetuate their many abuses, and, second, to oppress and destroy organized labor.” Oregon governor Sylvester Pennoyer said, “Our government has been supplanted by a judicial oligarchy.”
To the editors of the Chicago Tribune, the decision was “a notice to all Anarchists and other disturbers of the peace that the hands of the General Government are not fettered.” Attorney General Olney would later brag that the court “took my argument and turned it into an opinion.”
Eugene Debs thought the decision “left the law so biased that, in cases involving strikes, at least, a man could be sent to prison without trial by jury.” He declared that “every Federal Judge is now made a Czar.”
In June 1895, Debs and his fellow ARU directors reported to the Woodstock jail to serve out the remainder of their sentences. “I shall go into history right,” Debs declared.