USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 77
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On the 15th day of February, 1894, the leaders of the labor organizations, in behalf of themselves and their respective organizations and associa-
tions, and in behalf of such of the employes of the receivers as were members of said associations, moved the court to modify certain parts of the writs of injunction. On the hearing of this motion there was no denial of the facts set out in the petition of the receivers. It appeared from the record that the employes of the company numbered some twelve thousand men, that the property was in the possession of the court, and that these men were in the service of the receivers. The restraining portion of the writ to which ob- jection was made by the counsel of the employes prohibited the men from combining and conspiring to quit the service of the road with the object and intent of crippling the property of the receivers and embarrassing the operation of the road and from carrying this purpose into effect. Read in the light of subsequent events, the writ was a command to these men not to commit crime.
This writ of injunction has been severely criti- cised by the so-called labor organizations, either through willful misstatement or ignorant misap- prehension of its terms, through the length and breadth of the land. The contention on the hear- ing was that labor had the right to combine for mutual benefit and profit, and that it also had the right to strike. There was and could be no ques- tion about the right of men to combine for mutual benefit and protection. This was conceded by both parties and by the court upon the argument. In part the argument of counsel was directed to the meaning of the word " strike," and the fol- lowing definition was given by the movers for the modification of the injunction : "A strike is a concerted cessation or refusal to work until or unless certain conditions which obtain or are inci- dent to the terms of the employment are changed. The employe declines to longer work, knowing full well that the employer may immediately employ another to fill his place, also knowing that he may or may not be re-employed or re- turned to service. The employer has the option of acceding to the demand and returning the old employes to service, of employing new men, or of forcing conditions under which the old men are glad to return to service under the old condi- tions."
Judge Jenkins in his opinion called this an ideal strike, and the only criticism he indulged in was that it was an ideal strike and never existed in fact. Judge Jenkins' definition of a strike was
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this: " A combined effort among workmen to compel the master to the concession of a certain demand, by preventing the conduct of his busi- ness until compliance with the demand. The concerted cessation of work is but one of, and the least effective of, the means to the end ; the intimidation of others from engaging in the serv- ice, the interference with, and the disabling and destruction of property, and resort to actual force and violence, when requisite to the accomplish- ment of the end, being the other and more effec- tive means employed." The judge further said : " It is idle to talk of a peaceable strike. None such ever occurred. The supposition is impeach- ment of intelligence. From first to last, from the earliest recorded strike to that in the state of West Virginia, which proceeded simultaneously with the argument of this motion, to that at Connellsville, Pennsylvania, occurring as I write, force and turbulence, violence and outrage, arson and murder, have been associated with the strike, as its natural and inevitable con- comitants."
The motion to dissolve the injunctional orders was denied except as to the clause " and from or- dering, recommending, approving or advising others to quit the service of the receivers of the Northern Pacific Railroad on January 1, 1894, or at any other time." The opinion of the court is reported in the Federal Report, 803, and is ex- haustive of the subject. It will stand as a monu- ment to the judicial learning and ability of Judge Jenkins, and a land-mark for the lovers of liberty regulated by law throughout the world.
Upon appeal from this order to the Circuit Court of Appeals, the main and active part of the injunction was sustained, the following part of it being eliminated : " And from so quitting the services of the said receivers, with or without no- tice, as to cripple the property or to prevent or hinder the operation of said railroad." The Ap- pellate Court further directed that the injunction be modified by describing therein the strike as defined by Judge Jenkins in his opinion. The es- sential part of the order sustained was as follows: " And from combining and conspiring to quit, with or without notice, the service of said re- ceivers, with the object and intent of crippling the property in their custody, or embarrassing the operation of said railroad." The case upon ap- peal is reported in 63 Federal R., 310.
The words expunged by the Appellate Court were construed by Judge Jenkins in his opinion to express that done or to be done in the carrying out of the conspiracy enjoined, and that the writ enjoined the conspiracy and the carrying of it into effect. The Appellate Court, however, was of the opinion that the language employed was susceptible of the construction that, irrespective of any conspiracy, the employes were restrained from quitting employment in a body, a construc- tion expressly disclaimed by Judge Jenkins in his opinion. The Appellate Court also declared that a strike as defined by Judge Jenkins was unlaw- ful, but was of opinion that as matter of law there could be a peaceable strike, however it might be as matter of fact. In all essentials the ruling of Judge Jenkins was sustained.
The definition by Judge Jenkins of a strike will be historical. Within a few months after the render- ing of this opinion, the now famous Chicago strike occurred, where one of the railroad organi- zations attempted to stop the traffic and commerce of the country. This strike was accompanied by arson and murder and its conduct was so unnatural and brutal, that it would shame the barbarism of the North American savages of one hundred years ago. It was not a revolution as it threatened, but murder and incendiarism. It was demon- strated to the people of this country, that what- ever laboring men may suffer at the hands of capital, and their wrongs are doubtless many, the remedy is not in the strike, nor in the use of brute force. Under our form of government, the remedy for wrongs must be in some peaceable way. Force is always met by force, and that means revolution. There are many phases of this question, some of which are discussed by Judge Jenkins very ably in his opinion. Remedies for wrongs perpetrated against one class by another in the business activities of the country must not come through the violation of the constitution and the laws. If the salvation of the Republic be- comes the stake of contention, the contending factions will be swept away. The lessons to be drawn by rich and poor alike are that laws must be fair and equal, affecting all alike. The best constitution for the government of men is that in which the least injury to the poorest or richest individual is an injury to the whole people. Rights are of divine origin. They are not given to us or granted to us by constitutions or by laws.
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They are an inheritance with us and are only secured by the Federal and State Constitutions. No constitution could long exist which impinges upon the divine rule that " it is lawful for man to do what he will with his own." The right to hold property, be it great or little, is much the same as the right to exist, and under our constitutional provision " no person shall be deprived of life, liberty or property without due process of law." The remedies for wrongs are given to all and these remedies can be secured through courts of justice. Liberty is not license. "So use your own property as not to injure the property of others" is a rule established by the courts of equity for hundreds of years.
The leaders of the labor organizations were not content with the decision of Judge Jenkins and appealed to the Congress of the United States for an investigation, with a view to impeaching him for this exercise of judicial authority, but the in- vestigation fell still-born. The business of Con- gress is to pass laws pursuant to and under the constitution, not to enact in violation of the con- stitution. There are three branches of the govern- ment of the United States-legislative, executive and judicial, each with its own functions and du- ties to perform and each within its appointed orbit independent of the other. The legislative power of Congress is limited by the constitution of the United States.
That great charter also provides that: "The judicial power of the United States shall be vested in one Supreme Court, and in such in- ferior courts as the Congress may, from time to time, ordain and establish. The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority."
One of the functions of the judicial branch is to determine if Congress exceeds its power in legislation. It is one of the powers and duties of the judicial branch to determine the rights of contending parties. Congress has no such power, nor has it the right to set in review of judicial determination. For instance, it would be usurpation for Congress to pass a law saying that the property of one man should be controlled by another without his con- sent. It would be ursurpation to deprive any person of life, liberty or property except by due
process of law, and that process of law means a judicial proceeding under the constitution and laws. Appeals from judicial decisions do not lie to Congress, and it would be monstrous to hold that judges might be punished for honestly deciding a cause in opposition to the wishes of a majority in the legislative department of the government. The right is given to every sane man to make his own contract. This is a natural right, sometimes called a common-law right. For the violation of contract between man and man, remedies are fixed by the constitution and laws in courts of justice. Contract is the foundation of society and governments could not exist a moment without recognizing this right. He who violates a con- tract, be he rich or poor, must respond to the law. The rule of contract is based upon reason and justice, and reason is the soul of the law, and in right reasoning rests the perpetuity of free gov- ernment. For a correct and able enunciation of these principles, the friends of Judge Jenkins and the friends of good government can point to this opinion It will aid in a great measure in the so- lution of the difficult problems that this genera- tion will be called upon to solve, for in the cor- rect solution of them, with the aid of reason and justice, the free institutions under which we live will be preserved for the benefit of generations yet unborn.
WILLIAM PITT LYNDE# was born at Sher- burne, New York, December 16, 1817, and came of English antecedents ; the lineage is traced back to 1675 when a common ancestor landed on the shores of Massachusetts, in which commonwealth a large number of his descendants still reside. Judge Benjamin Lynde, for many years judge of the Queen's bench in Massachusetts, and the celebrated Cornelius Lynde, were of the same stock, and various others of kindred blood have since risen to prominence in professional and other lines, in widely separated parts of the country. The strict New England training of the upright, God- fearing people of the early times, stamped its impress by transmission indelibly on the character of William Pitt Lynde, as the whole record and tenor of his life attest. His father, Tilly, and his mother Elizabeth (Warner) Lynde, were both natives of Massachusetts, but removed in 1800 to
*This sketch of Mr. Lynde is taken in part from a sketch which appeared in the Magazine of Western History in Oc- tober of 1887.
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Sherburne, where for a considerable period the father was engaged in mercantile pursuits, in which he was very successful. He also took a lively interest in the political and general interests of community, and for seven years represented his district in the state legislature, and for six years in the senate. He is reputed to have been a man of much wisdom and of scrupulous probity.
After availing himself of the advantages of a common school education, William Pitt Lynde when quite young, attended for some time Hamil- ton academy, at Hamilton, New York. He then entered Courtland Academy at Homer, where he fitted for college, after which he attended Hamil- ton College. He then entered Yale, where he prosecuted his studies with untiring assiduity, gradnating with the highest honors in 1838. He had the rare distinction among the more than ten thousand men who have graduated from Yale since it was founded in 1700, of being chosen to deliver the valedictory from his class on com- mencement day. As a student he excelled in the languages, and was especially proficient in Greek. His linguistic tastes and abilities were manifested through all the years of his busy and eventful life, and he managed to find time to practically master the German and the French, and was a constant and facile reader of the current literature of both those languages.
Soon after leaving college Mr. Lynde entered the law department of the University of New York, which was then presided over by Benjamin Franklin Butler, an eminent statesman and ex- law-partner of President Van Buren. The jurists, Graham and Kent, were members of the faculty. About one year was spent in this institution, when he went to Cambridge and entered the law depart- ment of old Harvard, from which he graduated in 1841, and at the May term of the same year was admitted to practice at the bar of New York. Judge Field was the recipient of similar honors with him, which came through the hands of pre- siding Justice Nelson of the Supreme Court. Thus it will be seen that a youth of twenty-four years he had completed thorough courses of study, first a full classical curriculum, then a special course in the line of his profession, and been ad- mitted to practice at the bar of his native state, and was ready to face all the practical duties and responsibilities of life. In the Harvard law school Mr. Lynde had the good fortune to receive direct
from their lips, legal wisdom from the distin- guished jurists and law-writers, Story and Green- leaf. His early taste and preference for the best and miost elevated associations was a life-long char- acteristic, but one entirely free from anything that savored of arrogance. He was a Democrat, not only politically speaking, but in the true and underived meaning of the term. He was the effi- cient champion of the poor and oppressed, espe- cially at one period of his life we are approaching, and he is, so to speak, the patron saint of those grateful people to-day.
In 1841 Mr. Lynde set out for Milwaukee with the purpose of making it his home and the theatre of his activities and his hopes. Early in the fol- lowing year he formed a law partnership with Asahel Finch which was only dissolved by the death of Mr. Finch, in 1883, after a felicitous and lucrative association of forty-one years. During this long period not a single misunderstanding or word of discord disturbed the harmony of this natural affiliation of mind and character. This seems more remarkable as the partners were of different political faith, and the singular coinci- dence is recorded in the local annals of party his- tory that they were once pitted against each other, each being the choice of his respective party for a seat in the state legislature.
Mr. Lynde's strong judicial qualities, his prudent judgment, his thorough theoretical knowledge of law, brought from the schools, and his studious habits which speedily made him familiar with the practical workings and intricacies of law, all conspired to place him at an early period in his practice in the front rank of his profession. His worth and standing among his fellow-members of the Milwaukee bar were duly recognized, and he was for years president of the Bar Associaton.
As already intimated, Mr. Lynde's mind was peculiarly judicial and logical He was perfectly at home in the intellectual atmosphere of the court, before whom he could dispassionately un- fold a chain of irrefragible reasoning in establish- ing a point of law, and it was his peculiarity never to be coaxed or wheedled into espousing either side of a criminal prosecution. That class of legal talent which relies for success on appeals to the passions, or to the use of tergiversation, buffoonery or wit, constitutes a stratum of polemic cunning which was always as far beneath him as the froth and foam of the ocean are beneath the
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summit of Teneriffe. Mr. Lynde had a penchant for commercial and admiralty law, and became so thoroughly read on the great body of decisions from the weight and preponderances of which the law is constructed, that his opinion and presence were widely sought in the adjudication of that class of cases. In no small degree were his clients lawyers, who felt safer to gain a verbal opinion fresh from his lips than to trust themselves with their own more limited knowledge and their books. An idea of the aggregate business tran- sacted by the firm of which he was a member. throughout its history may be had in the fact that the court records show that they had managed one or the other side of more than ten thousand cases, many of them involving very large amounts.
Another important and, as it has proved, feli- citous event of perhaps the most memorable year in Mr. Lynde's history was his marriage in 1841, soon after his admission to the bar, to Miss Mary E. Blanchard, at Truxton, Cortland county, New York. Commenting on the companion of Mr. Lynde's choice, an authority published in 1882% describes briefly a character that remains the same cultured intellect and the same active benefactress in community now, though journeying along life's pathway alone, that she has ever been:
"Mrs. Lynde is a gifted and highly accomplished lady and a graduate of the Albany Female Academy, where she took the first prize in composition, her essay having been read be- fore the faculty by William H. Seward. Of active mind and benevolent disposition, she is foremost in every enterprise, whether public or private, the object of which is the benefit of the community. She was appointed by Governor Fair- child a member of the first Board of Directors of the state charitable institutions, and held the office four years; was one of the founders of the Protestant Orphan Asylum of Milwau- kee, and has been a member of its Board of Directors since its organization: was the prime mover in founding the Industrial school for girls in Milwaukee, and is president of its Board of Directors. She has for many years been a member of the Social Science Association of the United States, and a frequent and valuable contributor to various publications. Mrs. Lynde was appointed, in 1886, by the Board of Regents, a member of the Visiting Board of Wisconsin State University."
Mr. Lynde was an earnest, active churchman because he was a sincere believer. IIe had sub- jected the scriptures to a searching analysis, and weighed the evidence bearing on their integ- rity and veracity in the serene altitudes of his judicial mind, and had not found them wanting. An impromptu utterance of his has fortunately been preserved, which illustrates the stability of
his convictions on the subject. A question of skeptical import arose in the family circle one day, and when it was the opportune time for him to speak he said: "Judged by all the rules of evidence there is no fact in history, nor any truth in philosophy more clearly demonstrated than is the divine verity of the life and teachings of Christ." Mr. Lynde was an officer as well as member of the Presbyterian Church for years.
Mr. Lynde had been practicing law in Milwau- kee only three years when, at the age of twenty- seven he was appointed by President Polk attor- ney general of the territory of Wisconsin. He resigned this office the following year to accept the still more desirable position of United States District Attorney for the district of Wisconsin. He was an active participant in local as well as more general matters of public interest. He favored the acceptance of the rejected constitu- tion presented to the people of the territory in 1847, which was essentially duplicated and adopted in the second constitution the following year, and he called to order the large mass meeting held in the old court-house, February 18, 1847, to urge the ratification by the people of the original con- stitution.
Upon the admission of Wisconsin territory to the dignity of a state Mr. Lynde was elected to represent the first district of the new common- wealth in the Thirtieth Congress, his term of office running from December 6, 1847, to March 3, 1849. Several years later when anti- slavery sentiment had become strongly de- veloped, he made the run for Congress against the Hon. Charles Durkee, afterward governor of Utah under President Johnson's administration, and was defeated on a free soil issue. The two candidates were the best of friends and stumped their district together in like manner as Abraham Lincoln and Stephen A. Donglas did when com- peting for a seat in Congress. In 1860 he was elected mayor of Milwaukee.
In the trying years of the Rebellion, the Ger- mans of the Second and Ninth wards were the re- cipients of his kind interposition. The national cause seemed languishing, and the authorities at Washington were alarmed. Volunteers no longer replenished the waning armies in adequate num- bers, and the inexorable draft was plucking men everywhere from their homes and hurrying them to the front. If the conscript could raise three bun-
* "The Bench and Bar of Wisconsin," page 154.
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dred dollars the government would accept the ran- som. If the money could not be produced he was compelled to go. Many of the Germans were poor. They virtually had no choice if the military power placed its strong hand upon them, for they had no means. In their behalf Mr. Lynde's sympathies were aroused. He had money and he had influ- enee with others who had money also, and when the draft officer made his appearance demanding a contingent of so many men, the equivalent in that which would purchase substitutes was forth- coming to save to poor families their supporters who could not pluck the resolve to separate from loved ones, leaving them in destitution. The debt of gratitude the Germans thus suecored owe to Mr. Lynde, is large, but it is one they have ever sought to discharge with the best means they had -feelings and expressions of gratitude.
Mr. Lynde belonged to the progressive wing of the Democratic party. He acquiesced in the re- sults of the war and heartily approved of the enfranchisement of the blacks, whose bondage he had ever held in abhorrenee. His fealty to party was, however, strong, and if summoned, as was several times the case, to lead a forlorn hope, he would obey the call. One instance in point was when he was defeated by Byron Paine in a con- test for a seat on the bench of the Supreme Court of the state. He was rarely defeated in anything he sought to do, but when he was, accepted the result with philosophic complaisance.
After serving in both branches of the legisla- ture the services of Mr. Lynde as a legislator were again required in a larger sphere, and in 1874 he was elected from the fourth district to the Forty- fourth Congress, the party rival whom he defeated being Harrison Ludington, later governor of Wisconsin. He became a leading member of the judiciary committee and maintained the position through his congressional career. He also had the distinction of being selected as one of the seven members of the house to take charge of the Belknap impeachment trial before the senate. The prominent part taken by him in the Forty- fourth Congress insured his return to the Forty- fifth, and accordingly, in 1876, he was elected over the late William E. Smith, receiving the handsome majority of five thousand six hundred. It was in the exciting deliberations of this con- gress touching the decision of the electoral com- mission that the firm convictions of Mr. Lynde
and his undisguised opinion on the matter in con- troversy, brought down upon his head the male- dictions of the press of the then dominant party, and the ecomiums of his own, while it strength- ened the admiration in which he was held by his political friends.
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