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“THE MOVEMENT of COERCION” Justice David J. Brewer

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“THE MOVEMENT of COERCION” Justice David J. Brewer “THE MOVEMENT OF COERCION” BY Justice David J. Brewer _______ FOREWORD BY DOUGLAS A. HEDIN Editor, MLHP David Josiah Brewer served on the Supreme Court from December 18, 1889 to March 27, 1910. Off the court, he continued to express his views on a wide range of subjects, legal and otherwise, through articles in journals, books and numerous public addresses, including the following to the New York State Bar Association in January 1893. 1 His topic was “The Movement of Coercion” which, he explained, referred to the demands of the “multitudes” to share the wealth earned and accumulated by a few: I wish rather to notice that movement which may be denominated the movement of "coercion," and which by the mere force of numbers seeks to diminish protection to private property. It is a movement which in spirit, if not in letter, violates both the Eighth and Tenth Command- ments; a moment, which, seeing that which a man has, attempts to wrest it from him and transfer it to those who have not. It is the unvarying law, that the wealth of a community will not be in the hands of a few, and the greater the general wealth, the greater the individual accumulations. 1 In his biography of the justice, Michael J. Brodhead devotes an entire chapter to his “off-the- bench activities.” David J. Brewer: The Life of a Supreme Court Justice, 1837-1919 116-138 (Southern Illinois Univ. Press, 1994)(“In fact, he was the most visible and widely known member of the Fuller Court.”). 1 He argued that the “coercion movement” against private property expressed itself through, first, unions and, second, excessive regulation, though neither was evil per se : First, in the improper use of labor organizations to destroy the freedom of the laborer, and control the uses of capital. It is the attempt to give to the many; a control over the few — a step toward despotism. The other form of this movement assumes the guise of a regulation of the charges for the use of property sub- jected, or supposed to be, to a public use. This acts in two directions: One by extending the list of those things, charges for whose use the government may prescribe; . And second, in so reducing charges for the use of property, which in fact is subjected to a public use, that no compensation or income is received by those who have so invested their property. By the one it subjects all property and its uses to the will of the majority; by the other it robs property of its value. He saw the courts as guardians of private property, as a bulwark against this movement: What, then, ought to be done? My reply is, strengthen the judiciary. How? Permanent tenure of office accomplishes this. If they were to protect private property, judges themselves had to be protected from undue influence by the “multitudes” by life tenure. In other words, an elected judiciary could never be independent enough to resist “antagonizing popular feeling, or the wishes or interests of some prominent leader or leaders...” Justice Brewer’s reputation for a “strong tendency . to maintain individual rights against anything like the tyranny of the majority,” was noted in the following sketch in the June 1896 issue of Case & Comment , a popular publication for the bar for decades: 2 DAVID JOSIAH BREWER The selection of a judge already eminent among the judges of the country when making an appointment to the Supreme Court of the United States is sure to meet the approval of the nation. The judicial career of David J. Brewer, both in state courts and in the circuit court of the United States, had given him great prominence before he was appointed by President Harrison December 18, 1889, to fill the vacancy on the bench of the Supreme Court created by the death of Mr. Justice Matthews. Judge Brewer’s judicial career began soon after he engaged in the practice of law. He was elected judge of the probate and criminal courts of Leavenworth county, Kan., in 3 1862, having been appointed a United States com- missioner in the year previous. He was elected judge of the district court for the first judicial district of Kansas in 1864. During the short period in which he was subsequently off the bench, he served as county attorney in 1868, but in 1870 was elected a justice of the supreme court of Kansas, was re-elected in 1876, and again in 1882. In March, 1884, he was appointed judge of the circuit court of the United States for the eighth circuit and continued in that office nearly six years, until his appointment to the Supreme Court. Some of his opinions written while judge of the supreme court of Kansas, and others while he was judge of the United States circuit court, attracted wide attention. Among these were the cases in which the Kansas prohibitory amendment to the Constitution and the legislation under it were sustained. In a very elaborate opinion in the case of Chicago & N. W. R. Co. v. Dey , 35 Fed. Rep. 866, 1 L.R.A. 744 [1888], he upheld the power of the court to grant an injunction against the enforcement of a schedule of unremunerative rates fixed by railroad commissioners. Since he came upon the bench of the Supreme Court this doctrine has been reaffirmed in an opinion written by him in the case of Reagan v. Farmers’ Loan & T. Co . 154 U. S. 362, 38 L.ed. 1014 [1894]. Among the many other important cases in which he has written the opinion of the Supreme Court is that of Church of the Holy Trinity v. United States , 143 U. S. 457, 36 L. ed. 226 [1892], denying the application of the contract labor law to a rector of a church. Also Cleveland, C. C. & St. L. R. Co. v. Backus , 154 U. S. 439, 38 L. ed. 1041 [1894], sustaining a state tax upon that part of a railroad in the state according to a mileage basis in proportion to the value of the entire road, and Pittsburgh, C. C. & St. L. R. Co. v. Backus , 154 U. S. 421, 38 L. ed. 1031 [1894], sustaining the same mode of taxation in respect to the rolling stock of a railroad in the different counties through which the road runs. Another case is Brennan v. Titusville , 153 U.S. 289, 38 L.ed. 719 4 [1894], denying the power of state authorities to impose a license tax on a canvasser or solicitor of orders at retail for goods to be sent from another state. Among his strong dissenting opinions are those in Budd v. New York , 143 U. S. 517, 36 L. ed. 247 [1892], and Brass v. North Dakota , 153 U. S. 391, 38 L.ed. 757 [1894], in which the majority of the court sustained statutes regulating the charge for elevating and storing grain. The power of the Federal courts to restrain the obstruction of trains engaged in interstate commerce or carrying the mails was established by his convincing opinion in [In ] re Debs , 158 U. S. 564, 39 L. ed. 1092 [1895]. The opinions in several of the above cases show the strong tendency of Mr. Justice Brewer to maintain individual rights against anything like the tyranny of the majority. This is still more clearly and emphatically shown in his address before the New York State Bar Association in 1893, where he said: “Here there is no monarch threatening trespass upon an individual. The danger is from the multitudes — the majority, with whom is the power.” In this address he expressed the opinion that the movement of coercion which by the mere force of numbers seeks to diminish protection to private property must be checked, and that the way to do this was to strengthen the judiciary by giving judges a permanent tenure of office and an unchangeable salary, and at the same time making them ineligible to political office. In the "Yale Law Journal” of May, 1894, he strongly urges a reform in the patent system. Among his sug- gestions is that on an application for a patent there should be, not a mere ex parte hearing, but a real contest by the government making defense in the same way that it would resist a suit against it for money. He suggests also the prohibition of all expert testimony in patent cases and a much greater reliance on model and copy in determining the question of infringement, while he urges also that one half of the interest in a patent should be made inalienable in order to secure that portion of the fruits of the invention to the inventor and his heirs. These matters briefly illustrate 5 the progressive and vigorous character as well as the breadth and range of his thinking. Smyrna, Asia Minor, is the place where Mr. Justice Brewer was born, June 20, 1837. But his parents soon returned to this country and he was educated in Con- necticut. He entered Wesleyan University at Middletown in 1851, but took the latter part of his college course at Yale College. His father was the Rev. Josiah Brewer. His mother was the daughter of Rev. David Dudley Field, D. D., and the sister of David Dudley, Cyrus W., and Henry M. Field of New York, and Stephen J. Field, the present Senior Justice of the Supreme Court. After studying law with his uncle, David Dudley Field, in New York City and at Albany Law School, David J. Brewer, in 1858, went to Kansas and after a trip to Pike's Peak and Denver settled in Leaven- worth, where he resided until he removed to Washington as Justice of the Supreme Court.
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