United labor bulletin., 1911-01-05
LABOR AND THE LAW.
lBy Louis F. Post, }

one OF tne OIneT- but mdyue can teii
a story about
Organized Labor
and Judge-Made Law.
| This is a story with a moral, but
shall save the moral to end it with. And
it is story of today, though it begins
long time ago. 1t begins SO long ago, in
deed. that in telling it | shall set out in
the good old fairy-story fashion, notwith-
standing that this is no fairy tale
Once upon time,' then. there was
King of England whose name was Henry
l. With his kingly crown he acquired
lot OF private secretaries whom he or
ganized into a working force with one
of their number as foreman. The fore
man was the kings chancellor. 1t was
no sinecure. this foremanship; for part
Of the chancellor's job was to keep the
kings conscience, and as kings con-
sciences 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 that kings and their chancellors had
meanwhile died. one after another, max
ing 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 legal fic-
tion which still survives, the office holder
and his office were quite different, the
one from the other. ONCE 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 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!" 1t was like
that also with kings chancellors. No
body shouted it from the house tops
about chancellors. as they did about
kings; but chancery lawyers used to
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 organized his pri-
vate secretaries under the chancellor as
foreman, the kings conscience that
needed keeping by chancellor was
Edwards-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 factory for turn
ing out judge-made law.
In that law factory the principal raw
material
The Kings conesienee,
for this is what 1t 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 substitute; but the kingly Of
fee always had 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 chapcellor's factmory 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 chan
cellor had assistants. so bulky had the
kings conscience got TO be. and so com
pieN its thnohs. This was due to a grow
ing line of chancery precedents-prece-
dents being 10 law what recipes are to
cookery. except that the older they get
the more sacred they become and the
more savory the dish.
The way in which the chancellors had
got to making law out of the kings con-
science 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
Al.
eral rules of law. when applied rigidly to
particular cases. would sometimes pro-
duce absurdly unjust consequences. es-
pecially as they rested more on ancient
custom than on moral principle 1t 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 1t as well as the kings con-
science and his own skill permitted At
least he said so.
Let Me illustrate.
Suppose one person threatened to do
an injury to his neighbor's property. and
the person whose property was threat
ened 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 al
together 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 ex-
nlained that IL he waited until tho threat
ened injury was done. 1t 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 VIC
ious neighbor just for the threat, but not
very severely: or make him give bonds