The Nation, Vol. 113, 1921. AP2N2

[August 31, 1921] - The Nation - 225

Law and Necessity in Bisbee

One member of the mob which "deported" several hundred copper miners on strike in Bisbee, Arizona, on July 12, 1917, has been tried in an Arizona court and acquitted by the jury, on the ground that he acted in accordance with the "law of necessity." No others have been tried, the prosecution of all the other defendants being dismissed on mothion of the prosecuting attorney. Action was brought in the Federal courts, which decided that the acts complained of were not crimes under the Federal laws. There the matter stands. Fort the guidance of those who may in the future become involved in similar affairs in Arizona it is important now to review the entire matter, so that men may know in what circumstances they are lawfully permitted to commit what would otherwise be a crime, and so that industrial conflict may be quickly ended by bands of citizens which, with the approval of the Arizona courts, may hereafter take the law into their own hands.

The strikers, who were not rioting or engaging in violence of any sort, so far as I am able to ascertain, but are charged with threatening to do so, were seized in a surprise attack and forcibly deported to Columbus, New Mexico, by a posse led by Sheriff Harry C. Wheeler, of Cochise County, and composed largely of employees of the copper companies, including some of the local managers. News of the affair did not at once get to the outside world because an official of one of the companies by force of arms siezed the Western Union telegraph office and held up an Associated Press dispatch. Full accounts were later published in articles contributed to the New York Evening Post by Robert W. Bruére, who made a thorough investigation in Bisbee soon after the event. The President's Mediation COmmission, charged with the duty of ending labor troubles in these mines and other centers of the West so that war production might go on, also conducted a full investigation in Bisbee, where it had access to all the official records and examined all important witnesses. Our account of the deportation and what preceded it is based upon the articles by Mr. Bruére and the report of the President's Commission. No more authoritative sources exist.

The general conclusion of the President's Commission was expressed in the following sentences:

Repressive dealing with manifestations of labor unrest is the source of much bitterness, turns radical labor leaders into martyrs and thus increases their following, and, worst of all, in the minds of the workers tends to implicate the Government as a partisan in an economic conflict. The problem is a difficult and delicate one. There is no doubt, however, that the Bisbee and Jerome deportations, the Everitt incident, the Little hanging, and similar acts of violence against workers have had a very harmful effect upon labor both in the United States and in some of the Allied countries.... Too often there is a glaring inconsistency between our democratic purposes in this war abroad and the autocratic conduct of some of those guiding the industry at home. This inconsistency is emphasized by episodes such as the Bisbee deportations.

Our news of the trial is from a booklet containing the preliminary statement of the case by the counsel for the defense, the argument on the law of necessity by another member of this counsel, the opinion of the law of necessity by Judge Samuel J. Pattee, the charge to the jury by the judge, the verdict, and reported interviews with the jurors thereafter. This book is published by "Bureau of Information"--no address. Inquiry to the printer, "Star Job Print--Tucson," has failed to elict any answer as to the nature and responsibility of the Bureau of Information. The book contains none of the arguments of the prosecuting attorney, and none of the evidence. SInce we believe it is being circulated by the copper interests, however, we have reason to think that our quotation from these records will prove to be accurate.

Judge Patten ruled that the deportation would be, under ordinary circumstances, a clear violation of the law of the State which forbids kidnapping, and that no member of the posse could be excused on the ground that he was acting under the orders of the Sheriff, since the Sheriff had no right to violate the law. Martial law had not been declared, and, consequently, furnished no reason for disregarding civil law. The defendant could not plead the necessity of self-defense, since the strikers had not attacked anybody. But the action might be excused on the ground of the "law of necessity." The judge's opinion on this point is well summarized thus by the foreman of the jury:

The essence of the law of necessity, as explained and laid down to the jury by Judge Pattee, is that it protects a man in his invasion of the rights of others when his fear for his own safety or welfare is great enough to force him to a drastic step, and this fear does not have to be a fear of really existent dangers but only of apparent danger when the appearance of that danger is so compelling as to be real to him who views it.

Among the precedents cited was the case of persona who destroyed houses in Manhattan Island in order to keep a fire from spreading, and the case of Rhode Island militia-men who in the early years of the last century pursued rebels under arms into Massachussetts and forcibly brought them back into Rhode Island for trial. None was closer than this to the Bisbee case.

In order to assess the real or apparent danger which created the "necessity" we must examine the history of the industrial struggle. The miners of Arizona had for years been attempting to organize and establish collective relations with their employers--absentee owners of the immensely valuable copper properties and for the most part large and powerful corporations. A strike for this purpose was defeated in 1907. The strikers were denounced as un-American and alien agitators. They immediately adopted the un-American method of trying to remedy their grievances through the ballot, thus helping to bring about the adoption of a progressive constitution when Arizona was admitted to statehood, and electing to the governorship a man pledged to a program of advanced labor legislation, most of which was carried into effect. The companies then began to employ large numbers of Mexican and other foreign workers. The miners, fearing loss of their political power through this process, secured the passage of a law specifying that at least 80 per cent of the employees of any establishment where five or more men were employed must be American citizens. This law, fought to the highest courts by the copper companies, was declared unconstitutional by the United States Supreme Court. In 1915 another strike won minor concessions. In the next election Governor Hunt, labor's candidate, was defeated with the help of the corporation interests, and a campaign of wholesale discharges began against men prominent in union activities. Yet the demand for copper had increased rapidly, profits and the cost of living were soaring out of all proportion to wages, and European immigration had been cut off by the war. The Internation Union of Mine, Mill, and Smelter Workers, a union which practices collective bargaining and is regularly affiliated with the A. F. of L., decided that another economic struggle was necessary to protect its existence in the Arizona mines and to improve the condition of the workers. About that time the United States entered the war.

Immediately after the declaration of war, Governor Campbell appointed a labor committee under the State Council of Defense, consisting of seven representatives of organized labor and seven mine managers, with Dean William Scarlett, of the Episcopal Cathedral in Phoenix, as representative of the public. This committee called the miners and the employers to a conference in order to avoid the threatened trouble, for the sake of more effective prosecution of the war. The unions consented, but the employers refused to enter such a conference, on the ground that they were in control of the situation and could prevent strikes, that strikes would be treasonable in any case, and that they would have the assistance of the Government in suppressing them should any occur.

Soon the miners at Jerome presented their demands to their employers, with the result that their committee was discharged. H. S. McCluskey, the regular union organizer, called a meeting of the men, but on the night of the meeting five armed and masked thugs took him from his hotel, carried him thirty miles out of town in an automobile, and dropped him. Nevertheless, he returned, in the face of threats, and led the strike. Meanwhile, emissaries of the I. W. W., a more radical labor organization which does not believe in collective bargaining and is so hostile to the American Federation of Labor unions that it will adopt extraordinary measures to prevent their success, came to town and attempted to get control of the situation. According to the Jerome Sun, the local organ of the company actually championed the I. W. W. in its effort to secure leadership of the men, presumably in order to divide the ranks of the strikers. The miners held firm, however, until a Federal mediator forced a settlement. The I. W. W. leaders, then trying to reopen the strike by criticizing the terms of the settlement, were driven out of the district at the point of the gun by the very employers' sympathizers who at first assisted them. This event increased the prestige of the I. W. W. with the rank and file of the miners.

The I. W. W. thrives where the tactics of the employers are so autocratic as to breed intense resentment and distrust among the men. Although it failed to gain control of the strike at Jerome, it did gain ascendency in the later trouble at Bisbee. These miners had in general the same grievances as those who had joined the A. F. of L. organization, and the same industrial and political situation was the background of both strikes. Workmen do not read volumes of propaganda and make fine distinctions between economic theories; when they are dissatisfied they will strike, and the leaders they accept are the ones who under the circumstances are able to arouse their confidence and loyalty. The strikers at Bisbee were of the same clay as the strikers at Jerome; the leaders happened to belong to the I. W. W.

In Arizona the employers themselves made no distinctions between the unions. All strikers were called "wobblies," aliens, and traitors, and to all of them the managers were equally hostile. There is in these towns no neutral or semi-neutral public to hold the balance in an industrial dispute. Virtually all the inhabitants are employees of the companies or business men who live on their patronage. These are divided sharply into two classes--the manual workers and the managers, with their staffs and sympathizers. The strike at Bisbee was the usual sort of strike. There was no violence of any importance. There were no riots. The Sheriff telegraphed the Governor requesting United States troops "to prevent bloodshed and the closing of this great copper industry now so valuable to the United States Government." He made the usual statement that "majority strikers seem foreign. The whole thing appears pro-German and anti-American." Troops were not sent. Afterwards, Sheriff Wheeler told Mr. Bruére that his chief fear was that hostile Mexicans would start an uprising--presumably the very Mexicans who had been brought in by the employers because their labor was cheaper and they had no votes.

Bisbee at the time had a "Kangaroo court." Its presiding justice, Mr. Miles Merrill, told Mr. Bruére that he was the author of the deportation plan, and that he had perfected it after consultation with the legal adviser of the Copper Queen Mine and an executive officer of the Phelps-Dodge Corporation. Sheriff Wheeler, an old Indian fighter, put it into execution by adopting a plan of surprise attack which he had learned from the Apaches. Hundreds of miners were captured, put in box cars, and shipped to the New Mexican border. When any attempted to return, for weeks afterward, they were stopped with no warrant of law. Their families were left to get along as best they might, or to starve.

The counsel for the defense at the trial asserted that he would prove that the I. W. W. was a conspiracy to overthrow the United States Government, that it aimed to bring about the defeat of the United States in the war, that in pursuit of this purpose it had called a series of strikes throughout the West, and that the strikers in Bisbee had brought in weapons and dynamite and intended to destroy the mines and attack the rest of the population. Whether he did prove any of these things we do not know, since we have not had access to the evidence. The first three statements are mere paraphrases of similar charges made in the trial of I. W. W. leaders in Chicago. All the evidence which the Department of Justice and the American Protective League, in months of investigation, were able to accumulate was submitted in substantiation of these charges in the Chicago trial, yet the appellate court ruled that the evidence was insufficient to justify the submission of these counts to the jury. Most of the evidence submitted in the Arizona trial seems to have consisted of I. W. W. literature which the Bisbee strikers had in all probability never read. It may easily be true, however, that the members of the Sheriff's posse, aroused by the current propaganda of the employers, believed that the Bisbee strikers had all these objects in mind. If the jury thought they believed it, the judge's charge justified them in sanctioning the deportation.

Suppose, some time in the future, the miners of Cochise County are able to elect a Sheriff. Suppose the employers declare a lockout, thus bringing real danger--the danger of starvation--to the miners and their families. Suppose the miners organize a union to combat the lockout, and the employers then either bring in or are reported to have brought in detectives armed with guns and ammunition, and the workers believe that these gunmen are about to attack them as on July 12, 1917. It is difficult to see why the verdict of this jury would not justify the miners in thinking that they would be within the law if, under the leadership of their sheriff, they should forcibly deport the detectives and the mine managers and sieze and operate the mines. In fact, according to the ruling of Judge Pattee, they would seem to be even more safely within the law that the culprits in this case. For he said, "Of course, there is a higher degree of sanctity in liberty and life than in any mere property right.... To warrant the deprivation of liberty or live only requires a higher degree of peril than would warrant the destruction of property." Under the Arizona law as it stands, if two parties fear attacks from each other, the one who attacks first is protected by the State.