Social and Industrial Stress 1871-1916

excerpted from the book

The Tree of Liberty

A Documentary History of Rebellion
and Political Crime in America

edited by Nicholas N. Kittrie and Eldon D. Wedlock, Jr.

The Johns Hopkins University Press, 1998


The close of the Civil War permitted some long-standing but temporarily dormant social and political movements to come to the fore. The war concluded with a basic restructuring of the state-federal system through the passage of the Fourteenth Amendment, which authorized federal scrutiny of the conduct of the states' legal relations with their citizenry. Other forms of restructuring were now to occupy the nation's sociopolitical agenda after the half-century, as various factions of the population pressed for access to political power-often through illegal and violent means. Southern whites regrasped political control of their states to maintain social and racial hegemony, women sought the franchise and access to public office and the professions, Native Americans fought a losing battle against expatriation and western resettlement, and the labor movement struggled to reform the economic order and to accord workers access to the safeguards, rather than the hostility, of the law.

In all these arenas the existing laws, both criminal and quasi-criminal, shaped the character of the debate and either facilitated or retarded change. This chapter thus focuses on the interactions of the law, particularly the federal law, with these reform and retrenchment movements. To be sure, there was considerable criminal conduct associated with all of the groups included in this chapter: nightriders engaged in acts of terrorism; women sought to cast illegal votes; Native Americans frequently rose in defense of their land and social order; and workers illegally struck, boycotted, and rioted. But this chapter is replete with the richer material of political criminality as well.

The recurring themes of loyalty and allegiance to the social, economic, and political order echoed through these years, but new phenomena came into existence as well. Despite the general amnesty, the confiscation measures of the Civil War continued in effect, and a white man's rights depended on his wartime loyalties. But as franchise restrictions on former Confederate officers and soldiers were lifted, the white Southern political structure asserted itself against the federally supported Reconstruction governments. With the federal presence reduced, many white Southerners undertook terrorist acts to diminish the political power of blacks - to which neither the new state authorities nor those of federal government effectively responded. The passive attitude of both state and federal criminal law enforcement officials thus permitted the subjugation of blacks through private conspiracies and terrorism.

In contrast to the passive posture of the governments with regard to the enforcement of civil rights stands the active federal role in addressing another resurging social concern-the destiny of the Native American population. The federal government, first through the use of military force to contain and isolate Native Americans on reservations and then through a policy of "assimilation," undertook, through punitive laws and regulations, the ethnocide of a socially and politically distinct people.

Passive and active involvements also marked the federal government's approach to the women's and the labor movements, respectively. A narrow construction of the recently enacted Fourteenth Amendment withheld from women access to federal authority to challenge state restrictions on their political and social rights. Conversely, capital and management often invoked federal power, military and judicial, to neutralize and punish the exercise of economic and political power by organized labor.

In these materials, once again there is a pattern of political criminality arising in and around groups that are excluded from equal participation in the ordinary political processes, yet are held accountable to the demands of the law. The severity of the governmental response to such criminality seems to be related to the perceived loyalty of the offending group. The Native Americans were affected the most directly and heavily by state and federal government policies. They were attacked and held in captivity, and their social cohesion was broken violently. The duplicitous policy of the United States was to recognize the Native Americans as sovereign, and therefore to see them as disloyal to the United States. Before they could be granted politically protected rights they were required to demonstrate their "assimilation"-adherence to the order of the white society.

Workers, especially non-craft laborers, received the next most severe treatment at the hands of government. Many, if not most, of this sector of the working class consisted of immigrants, ineligible to vote, who spoke foreign languages and adhered to foreign customs and ideologies. The government and the general public perceived their organizations as suspiciously foreign and as opposed to the principles of the American Republic, as a threat to the interests of capital.

Women were denied the franchise and could not directly influence policy, but otherwise their deprivation was more evident in economic than in political realms. They were punished when they breached the law to demonstrate their disaffection with the existing order; otherwise their political subjugation was more a matter of exclusion than direct oppression. Blacks were in the most peculiar position of all with regard to governmental authority. Unlike the other groups they were specifically entitled to the special protection of the United States under the Fourteenth Amendment, yet they were victimized through terrorism and state-sanctioned discrimination more than any other group. The United States laws that guaranteed black voting rights proved ineffectual in protecting the exercise of that right in the face of violent, politically motivated local opposition. The resulting political disenfranchisement, reinforced by blacks' social re-isolation, continued at the federal as well as the state level, since federal and state electors were one and the same.

It is the struggle of these groups-Native Americans, women, blacks, and labor-for political and civil rights which constituted a major portion of political criminality in post-Civil War America. None of these groups sought to do anything that was inherently or fundamentally criminal: malum in se. Living on one's ancestral property in conformity with traditional cultural values, organizing and collectively asserting economic power and the need for reform, and discharging civic and political responsibilities through the elective process are not usually deemed inimical to the social order. Yet people were for those reasons subjected to punishment, deprivation, and even death, through the use or the non-use of governmental power...

"no Indian nation . . . shall be acknowledged or recognized as an independent nation" (1871)

The new federal policies regarding Native Americans were hampered severely by the sovereign status of the Indian nations, entitling them to bilateral and consensual treaty relations. The cumbersome treaty form of managing Native American affairs also was objectionable to the House of Representatives, which was excluded from the treaty ratification process. In 1867, Congress passed a bill (which was plainly unconstitutional and was quickly repealed) that purported to strip the president of treaty negotiating power with the Native Americans. Finally, in 1871 an amendment was tacked on to the appropriations bill terminating this time-honored procedure. The Native American nations, thereafter, were no longer entitled to the procedural trappings of independent nations. Their status had been defined one year earlier when the Supreme Court ruled in the Cherokee Tobacco Case, 78 U.S. (11 Wall.) 616 (1870), that an act of Congress could abrogate a treaty obligation.

This loss of treaty-making status provided the foundation for the assertion of federal law-making authority over the heretofore inviolable internal affairs of the various Native American societies. Although often coerced, regulation of internal Native

American affairs had always been based on the consent of the tribal authority. Thereafter this authority existed only at the sufferance of Congress, and the individual Native American, rather than the nation or tribe, became the legitimate object of regulation by Congress. Membership in a Native American society nevertheless precluded individuals from asserting any voice in the enactment of the regulation, even though they were directly subject to penalties.

Defendant Is Indicted for Having Voted (1873) (Women's Right to Vote)

Feminists claimed the Fourteenth Amendment's privileges and immunities clause abolished all state restrictions on the franchise. They argued that voting for a United States Congressman was a privilege of United States citizenship and that women were undeniably citizens. Women in several states attempted to vote in 1871 and 1872. Although the state of New York had limited the vote to members of the male sex, Susan B. Anthony and thirteen other women deliberately went to the polls in Rochester and succeeded in either registering or casting their ballots in the congressional elections. Ironically, the women were charged criminally under the 1870 Civil Rights Act for "having voted without the lawful right to vote." This prohibition was designed to prevent white voters from canceling out black votes by repeat voting and was never intended to be used against women suffragists. Anthony unsuccessfully set up the privileges and immunities clause as a defense to the crime, which carried a maximum jail term of three years.

"The Court orders the prisoner to sit down" (1873)

Prior to sentencing, Susan B. Anthony articulated the inequities of the judicial process which she had experienced as well as the ultimate justice of the cause for which she had acted. In conformity with her principles, she refused to pay the one-hundred dollar fine imposed. The judge, in turn, refused to jail Anthony for failure to pay the fine, precluding an appeal to the Supreme Court which she greatly desired.

Susan B. Anthony's Statement to the Court (1873)

Reprinted in E. C. Stanton, S. B. Anthony, and M. J. Gage, eds., History of Woman's Suffrage (New York: Fowler & Wells, 1881), 2:687-89.

[JUDGE HUNT]: The prisoner will stand up. Has the prisoner anything to say why sentence shall not be pronounced?

MISS ANTHONY: Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled underfoot, every vital principle of our government. My natural rights, my civil rights, my political rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually, but all of my sex, are, by your honor's verdict, doomed to political subjection under this so-called republican government.

JUDGE HUNT: The Court can not listen to a rehearsal of arguments the prisoner's counsel has already consumed three hours in presenting.

MISS ANTHONY: May it please your honor, I am not arguing the question, but simply stating the reasons why sentence can not, in justice, be pronounced against me. Your denial of my citizen's right to vote is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers as an offender against the law, therefore, the denial of my sacred rights to life, liberty, property, and-

JUDGE HUNT: The Court can not allow the prisoner to go on...

MISS ANTHONY: Of all my prosecutors, ... not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer.... [J]ury, judge, counsel, must all be of the superior class.

JUDGE HUNT: The Court must insist-the prisoner has been tried according to the established forms of law.

"the rights of one citizen as against another" (1876)

In United States v. Cruikshank the United States Supreme Court had before it the convictions of three whites who were among a mob that had broken up a meeting of blacks, killing two participants. The meeting had been called to discuss local Louisiana elections. The fundamental question was whether newly enfranchised blacks would be able to rely on the power of the federal government to protect their exercise of political rights or whether that protection would be withdrawn.

The defendants were convicted in federal court for their politically motivated act of terrorism under Section 6 of the 1866 Civil Rights Act. The Supreme Court reversed the convictions. In its decision, the court relied on the State Action Doctrine, that is, that the Fourteenth Amendment guaranteed the rights of citizens only against encroachment by the state or its agents, not against actions by private individuals. While the language of Section 6 was left intact, its protective application was limited to safeguarding federally- rather than state-derived rights. The State Action Doctrine subsequently was used to invalidate major provisions of the 1875 Civil Rights Act which imposed penalties on private individuals who discriminated against blacks. The grounds for invalidation were that Congress did not intend such a broad grant of legislative power in the Fourteenth Amendment, which was only to be restrictive of the states. Thus, the judicial branch eliminated the authority of the federal law to protect racial minorities from resurgent white domination as Reconstruction ended and the franchise was extended to former rebels. Blacks could resort only to unsympathetic state officials to remedy terrorist violations of their rights by private parties.

"Revenge! Workingmen! To Arms!" (1886) (Haymarket Affair)

During an 1886 strike at the McCormick Harvesting Machine Company, the Chicago police fired into a crowd of strikers. Angered, anarchist August Spies composed the circular reproduced below, with the exception of the heading "Revenge," and circulated it that night. The flyer heaped particular calumny upon the police as the enforcers of the capitalist will. At a protest meeting the following day in Haymarket Square, a bomb thrown at the closing of the demonstration killed seven policemen and four other persons. Eight anarchists, including August Spies, were arrested, tried, and convicted despite the absence of any direct evidence that they had made or thrown the bomb. The theory of the prosecution, adopted by the court, was codified subsequently in Illinois' extremely broad Merritt Conspiracy Act. Four of the convicts, including Spies, were hanged, and one committed suicide. After the passage of five years, the Merritt Act was repealed; and after seven years imprisonment the surviving three convicts were pardoned by Illinois' governor, John Peter Altgeld.

"combination ... in restraint of trade" (1890) (Sherman Antitrust Act - union-busting)

Enacted for the purpose of combating commercial monopolistic practices, the Sherman Antitrust Act and the remedies provided therein served as a major "union-busting" device. Management was able to invoke the sanctions of the act against union-directed strikes and boycotts. While the sanctions were civil in form, they had a highly punitive and quasi-criminal flavor. In 1902 the courts held that union effort to boycott Loewe Hats violated the Sherman Act and assessed triple damages in the amount of $240,000 against the union. In Gompers v. Buck's Stove and Range Co., management succeeded in obtaining a sweeping injunction forbidding a boycott by the American Federation of Labor, and when AFL officials defied the order, they were jailed for contempt of court. To labor, these applications of the Sherman Act were another example of the law unjustly siding with capital on the economic battleground. Disobedience of the labor injunction became union policy.

Sherman Antitrust Act

26 Stat. 209 (1890).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SEC. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

SEC. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

SEC. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory

7 and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

SEC. 4. The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act.... Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited....

SEC. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor . . . and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.

"The President of the United States of America to Eugene V. Debs" (1894)

In 1893, the United States had three million unemployed workers and more than six hundred bank failures. After years of bustling economic growth with rampant speculation in the stock market and overextended industrial production, corporate profits fell rapidly and wages dropped drastically. Labor, acknowledging the depressed economic conditions, submitted to management's stringent measures. The economy showed some improvement the following year, but it failed to make a substantial recovery. Restless, labor responded with an explosion of strikes and disturbances. In 1894, the nation was confronted with the Pullman strike, or "Debs's Rebellion," in which George Mortimer Pullman and the railroads were pitted against labor leader Eugene Victor Debs and the American Railway Union.

The strike paralyzed transportation from Chicago to the Pacific Coast, and the railroad operators beseeched President Grover Cleveland to intervene. He did, sending two thousand troops to keep the trains moving. The power of the United States was enlisted further in aid of management, which sought and obtained injunctions under the Sherman Antitrust Act to restrain Debs and his union from their activities. When Debs defied the law, which he viewed as being favorable to management, the court cited him for criminal contempt and ordered him ailed for six months as punishment.

"keeping those highways of interstate commerce free from obstruction" (1894) (Eugene Debs)

Eugene V. Debs sought a writ of habeas corpus from the United States Supreme Court to review the lawfulness of his imprisonment for violating the injunction against participation in the railroad strike. Clarence Darrow, Debs's lawyer, argued that the United States had no power to intervene in matters of local peacekeeping, that the Sherman Act was not intended to cover labor activities, and that the imprisonment of Debs without a jury trial (suits for injunctions, as well as all equity proceedings, are conducted without a jury) violated the Sixth Amendment. Darrow also made an impassioned plea for the s justice of the labor cause. The plea fell on deaf ears. n Despite the fact that no law of the United States was defied, the court concluded that the government's interest in the movement of the mails was sufficient because to uphold Debs's imprisonment through the invocation of the quasi-criminal law. Of particular note is the court's reiteration of the dogma that all social at wrongs were to be addressed through the ballot box or the courts-not through mob violence.

Mother Earth (1906) (Emma Goldman)

Emma Goldman (1869-1940), born in Russia, moved to St. Petersburg at age thirteen, one year after the assassination of Czar Alexander II. After arriving in the United States in 1886, she worked in clothing factories in Rochester, New York. Goldman became active in the anarchist movement after 1889, and her speeches received widespread attention. In 1892, she helped Alexander Berkman in his assassination attempt on Henry Clay Frick of United States Steel during the Homestead Strike in Pittsburgh. She was imprisoned for inciting to riot in 1893. She and Berkman published the anarchist paper Mother Earth.

Arrested in June 1917 for obstructing the draft and sedition, she was deported to Russia two years later. Goldman left Russia in 1921 because of her disagreement with the Bolshevik government. Although an advocate of political change through violence in her early years, she eventually came to condemn it. In 1928, she wrote to Berkman that she wished she could adopt the nonviolent attitude of Gandhi and Tolstoy: "I feel that violence in whatever form never had and probably never will bring constructive results." Nevertheless, in this essay Goldman distinguished the general political philosophy of anarchism from the ultimate resort to terrorism in the face of tyranny, suggesting that terrorist acts are the natural response of normal people to stresses of intolerable oppressions.

The Psychology of Political Violence (Emma Goldman)

Reprinted in E. Goldman, Anarchism and Other Essays (Port Washington, N.Y.: Kennikat Press, 1969), 85-114...

The ignorant mass looks upon the man who makes a violent protest against our social and economic iniquities as upon a wild beast, a cruel, heartless monster, whose joy it is to destroy life and bathe in blood; or at best, as upon an irresponsible lunatic. Yet nothing is further from the truth. As a matter of fact, those who have studied the character and personality of these men, or who have come in close contact with them, are agreed that it is their super-sensitiveness to the wrong and injustice surrounding them which compels them to pay the toll of our social crimes. The most noted writers and poets, discussing the psychology of political offenders, have paid them the highest tribute....

[I]t is among the Anarchists that we must look for the modern martyrs who pay for their faith with their blood, and who welcome death with a smile, because they believe, as truly as Christ did, that their martyrdom will redeem humanity...

[The] indisputable fact is that homicidal outrages have, from time immemorial, been the reply of goaded and desperate classes, and goaded and desperate individuals, to wrongs from their fellowmen, which they felt to be intolerable. Such acts are the violent recoil from violence, whether aggressive or repressive; they are the last desperate struggle of outraged and exasperated human nature for breathing space and life. And their cause lies not in any special conviction, but in the depths of that human nature itself. The whole course of history, political and social, is strewn with evidence of this fact. To go no further, take the three most notorious examples of political parties goaded into violence during the last fifty years: the Mazzinians in Italy, the Fenians in Ireland, and the Terrorists in Russia. Were these people Anarchists? No. Did they all three even hold the same political opinions? No. The Mazzinians were Republicans, the Fenians political separatists, the Russians Social Democrats or Constitutionalists. But all were driven by desperate circumstances into this terrible form of revolt. And when we turn from parties to individuals who have acted in like manner, we stand appalled by the number of human beings goaded and driven by sheer desperation into conduct obviously violently opposed to their social instincts...

That every act of political violence should nowadays be attributed to Anarchists is not at all surprising. Yet it is a fact known to almost everyone familiar with the Anarchist movement that a great number of acts, for which Anarchists had to suffer, either originated with the capitalist press or were instigated, if not directly perpetrated, by the police...

Can one doubt the logic, the justice of these words:

Repression, tyranny, and indiscriminate punishment of innocent men have been the watchwords of the government of the alien domination in India ever since we began the commercial boycott of English goods. The tiger qualities of the British are much in evidence now in India. They think that by the strength of the sword they will keep down India! It is this arrogance that has brought about the bomb, and the more they tyrannize over a helpless and unarmed people, the more terrorism will grow. We may deprecate terrorism as outlandish and foreign to our culture, but it is inevitable as long as this tyranny continues, for it is not the terrorists that are to be blamed, but the tyrants who are responsible for it. It is the only resource for a helpless and unarmed people when brought to the verge of despair. It is never criminal on their part. The crime lies with the tyrant.

Anarchism, more than any other social theory, values human life above things. All Anarchists agree with Tolstoy in this fundamental truth: if the production of any commodity necessitates the sacrifice of human life, society should do without that commodity, but it can not do without that life. That, however, nowise indicates that Anarchism teaches submission. How can it, when it knows that all suffering, all misery, all ills, result from the evil of submission?

Has not some American ancestor said, many years ago, that resistance to tyranny is obedience to God? And he was not an Anarchist even. I would say that resistance to tyranny is man's highest ideal. So long as tyranny exists, in whatever form, man's deepest aspiration must resist it as inevitably as man must breathe.

Compared with the wholesale violence of capital and government, political acts of violence are but a drop in the ocean. That so few resist is the strongest proof how terrible must be the conflict between their souls and unbearable social iniquities.

High strung, like a violin string, they weep and moan for life, so relentless, so cruel, so terribly inhuman. In a desperate moment the string breaks.

Untuned ears hear nothing but discord. But those who feel the agonized cry understand its harmony, they hear in it the fulfillment of the most compelling moment of human nature.

Such is the psychology of political violence.

The Execution of Joe Hill (1915)

"Murdered by the Authorities of the State of Utah." So read the banner over Joe Hill's coffin during his funeral in Chicago.

It has been alleged that Joe Hill was killed by a firing squad of Salt Lake County for political reasons because he was a member of the "fighting section of the American working class, the I.W.W." Whether Hill received a fair trial for the first-degree murder of a grocery store owner (wounded in a similar attack long before Hill came to Utah) will continue to be de bated by labor sympathizers and legal scholars. The Supreme Court of Utah's opinion makes little reference to his leadership in the Industrial Workers of the World. Although the IWW never developed into a major rival of the AFL, its organizers brought the plight of the migrant worker of the western United States and the immigrant factory worker of the East to the attention of the craft-dominated union movement. The IWW demonstrated that unskilled workers, speaking in many tongues, could combine to form a militant labor organization.

The careful review of the evidence by the Utah Supreme Court was unconvincing to Hill's followers. They could easily believe Joe Hill was framed, considering their inherent mistrust of the law and courts, which had so often acted to frustrate their goals. Joe Hill's body received a hero's funeral in Chicago, and a judge detailed the legal errors of the Utah courts during the funeral oration. In his life, as well as his songs, Joe Hill, born Joseph Hillstrom, greatly enriched American folklore.

This Struggle Will Go On (1915) (William "Big Bill" Haywood)

William ("Big Bill") Haywood (1869-1928) was born in Salt Lake City, Utah, and lost an eye at the age of nine in a mining accident. Haywood was a leader of the Western Federation of Miners during a series of violent strikes and also helped organize the Industrial Workers of the World in 1905. He ran as a socialist candidate for governor of Colorado while imprisoned on the charge of assassinating the former governor of Idaho. Haywood opposed America's entry into World War I and in 1917 was arrested for sedition. He jumped bail and went to the Soviet Union in 1921. Like Emma Goldman before him, he became disillusioned with Russia's revolution.

Haywood and the IWW envisioned a future society in which workers would control the means of production and their own destinies. This goal was to be achieved through the direct action of a general strike. In his testimony before the Industrial Relations Commission Haywood also called for "filling the jails" as an antiestablishment tactic.

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