A BB 5 
 
 91 
 
 Injunctions, labor 
 
 GRESSIONAL4lEGULAi J OF INJUNCTION'S 
 HEARINGS 
 
 BEFORE THE 
 
 I 9 COMMITTEE ON^LABOR 
 
 .jHOUSE OF REPRESENTATIVES 
 324 
 
 SIXTY-SECOND/ CONGRESS 
 SECOND SESSION 
 
 PENDING ANTI-INJUNCTION BILLS 
 
 AUGUST 12, 1912 
 
 LIBRARY 
 PUBLIC AFFAIRS SERVICE 
 
 NOV13 1969 
 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1912
 
 
 COMMITTEE ON LABOR. 
 HOUSE OF REPRESENTATIVES, 
 
 WILLIAM B. WILSON, Pennsylvania, Chairman. 
 
 WALTER L. HENSLEY, Missouri. FINLY H. GRAY, Indiana. 
 
 JAMES P. MAKER, New York. JOHN J. GARDNER, New Jersey. 
 
 ARTHUR B. ROUSE, Kentucky. EDWARD B. VREELAND. New York. 
 
 DAVID J. LEWIS, Maryland. J. M. C. SMITH, Michigan. 
 
 WILLIAM S. HOWARD, Georgia. WILLIS C. HAWLEY, Oregon. 
 FRANK BUCHANAN, Illinois.
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 COMMITTEE ON LABOR, 
 HOUSE OF REPRESENTATIVES, 
 
 Monday, August 12, 1912. 
 
 The committee met at 11 o'clock a. m., Hon. William B. Wilson 
 (chairman) presiding. 
 
 STATEMENT OF THOMAS CARL SPELLING, ATTORNEY AT LAW, 
 NEW YORK, N. Y. 
 
 Mr. SPELLING. Mr. Chairman and gentlemen of the committee, a 
 bill known as the Clayton injunction bill passed the House on the 
 14th of May last by a vote of 243 to 31, no Democrat voting against 
 it and many Republicans for it. It went to the Senate, and reached 
 the Judiciary Committee on the 15th of May, three months ago 
 lacking three days. A subcommittee of the Senate Judiciary Com- 
 mittee was appointed. Hearings began before that subcommittee 
 within a few days after that date, and they continued from day to 
 day, hour by hour, down to three weeks ago. During that time there 
 have been six arguments made of from one and a half hours up. 
 Some of the arguments were an hour and a half in length, some of 
 them were two hours, and some of them ran on from day to day all 
 of them by counsel representing associations, railroad companies, 
 and other corporations in opposition to the bill. At length, three 
 weeks ago, it was announced that the proponents and supporters of 
 that bill (H. R. 23635) would be heard. They appeared, led by the 
 officers and representatives of the American Federation of Labor, 
 with counsel. That was on a Thursday; but the subcommittee 
 adjourned until the next Tuesday, without giving anyone a chance 
 to be heard. The proponents of the measure appeared there on the 
 day and at the hour to which adjournment was taken, as they had 
 done before, and were then ready to proceed. At 10 minutes to 11 
 o'clock the subcommittee took an abrupt adjournment before a word 
 could be spoken for the bill. As far as any record was made, there 
 was no time set for any further opportunity to be heard. 
 
 The session now draws to a close and I greatly fear the utter failure 
 of the bill hi the Senate, and of any other bills having the same pur- 
 pose in view. I say this, notwithstanding the fact that notice has 
 been given of a hearing next Tuesday (to-morrow) at 12 o'clock, at 
 which Mr. Gompers and others are expected to be heard. 
 
 The counsel in opposition to that bill fully understand the far- 
 reaching importance of it; they see that great irrepressible, far- 
 reaching, economic, and social problems underlie it. In their argu- 
 ments they have brought forth, almost from the first, the conflict
 
 4 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 between capital and labor and exploited it to the uttermost. Fully 
 do these trained and well-retained lawyers realize that there is an 
 enormous financial advantage in the prevailing capitalistic view taken 
 by many of the Federal judges on the question of injunctions, relief 
 from which forms the subject matter of the bill. In nothing is the 
 importance of this question so clearly shown as in the personnel and 
 character of the forces arrayed for and against the bill the one class 
 against the other. The labor forces have been accused in the argu- 
 ment, time and again, of trying to unsettle the law; of trying to give 
 an unfair advantage to a class by overturning established laws and 
 paralyzing the powers of the courts; whereas, in truth and fact, the 
 labor representatives are only asking Congress to protect them from 
 judicial actions in excess of proper legal restraints and to put up 
 proper legislative safeguards against aggressive wrongs committed in 
 the interest of a class. 
 
 Although the bill contains no definition of property or property 
 right, well do the learned counsel in opposition realize that most of 
 the abuses of which labor complains arise from a disregard of the 
 limitation of equitable jurisdiction founded upon the fundamental 
 distinction between the rights of property and personal rights, and 
 that sooner or later that great issue must be met and settled by 
 legislation. Therefore, without reference to any provision in the bill, 
 that question is made the starting and ending of each of their argu- 
 ments, as if they were trying to erect a bulwark against the future 
 and obtain a pre judgment in their favor from Senators and Members 
 of the House. But I have heretofore encountered such so-called 
 arguments as they have here again advanced, and do not regret that 
 they have again thrown upon me the light burden of refutation. 
 
 Now, gentlemen, we seldom see the extent of an evil until its final 
 development. It has been so in many instances that I might use for 
 illustration. The tendency or the practice in the courts of assuming 
 that the right to do business or the right to continue business regard- 
 less of the consequences to others is entitled to the exercise of juris- 
 diction by injunction, as a protection or safeguard of the men who 
 happen to be business men, as contradistinguished from men in other 
 classes, is going to lead to the unsettling of all social conditions, and, 
 if it is not checked or stayed in some way, will lead to the overthrow 
 of our institutions. In that usurpation consists the vice of personal 
 government, and each judge, if allowed to go on and carry that prac- 
 tice to its logical result, would become a sovereign with absolute 
 powers in his own domain. 
 
 Now, if the right to do business or continue in business is to be thus 
 protected, notwithstanding the fact that the business man has no 
 such protection against the ordinary obstacles to and vicissitudes of 
 business, and the rule protecting it in labor disputes is given its 
 logical operation, then the remedy by injunction to protect it must 
 be coextensive with all interferences that may affect it. The courts 
 concede now the right to strike for any cause, although some of them 
 have within the last three or four years been trying to inject into it 
 an element of motive and have undertaken to say that they must 
 strike with a good motive. But what is called peaceful picketing 
 and persuasion are also conceded to be legitimate. And yet, if this 
 new idea, that the right to do business can be protected bymjunction 
 against violence, as in the case of the nonunionist seeking the job of
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 5 
 
 the unionist, on the ground that such an act is an interference with 
 the right to do business, is sound, then why not enjoin the strike, 
 which is a direct, as well as a more serious, interference with business? 
 
 So, you see, we can comprehend the full effect of not checking this 
 abuse. I say "we," and in using that word I include all who are 
 really interested in the welfare of the people, the labor class con- 
 stituting a majority. I mean we who are seriously concerned for 
 the perpetuity of our institutions and are able to see the vital im- 
 portance of pressing forward in this fight, and pressing forward with- 
 out compromise, working earnestly for the early passage by the 
 Senate of the bill which I have mentioned as having already passed 
 the House. 
 
 If in the course of what I say here I appear to go outside the real 
 issue, this is my answer, that by showing hereafter that the courts 
 possess no jurisdiction to enjoin any other injuries than those threat- 
 ened to property, such showing has been made necessary by the 
 course in argument of the opposition. Such showing is not a case of 
 proving too much, but a case in which the greater includes the less. 
 
 It can not be doubted that some of the wrongs to labor by excesses 
 of jurisdiction are due to willful perversion of judicial authority, but 
 it is evident that most of them are attributable to a false view of 
 social duty. 
 
 The attitude of the courts of whose conduct complaints have been 
 made has all the dangers and vices of the most obnoxious paternal- 
 ism. Such courts have accepted the abstract right to do or to con- 
 tinue business, which, because of its universality, is clearly seen to be 
 merely personal, as a property right, vested in one class to the exclu- 
 sion of others. Hence, in protecting it by injunction in excess of 
 jurisdiction they are not exercising a judicial function at all but 
 enacting destructive legislation for the benefit of one class and direct- 
 ing it against another. And this is a complete answer to the objec- 
 tion, so often repeated here in argument, that this bill proposes 
 legislation in the interest of a class. 
 
 The right asserted by the interests here arrayed in opposition to 
 the bill is not merely that of doing business, but of continuing busi- 
 ness under all conditions and circumstances exclusive of the rights of 
 others, and though the exercise of it may mean the subordination of 
 all other rights. Take for illustration the case of Buck's Stove & 
 Range Co. against the American Federation of Labor and others. 
 The evidence in that case showed strong provocation for the hostility 
 on the part of organized labor toward the plaintiff. There was not 
 only a dispute of long standing concerning the hours of service in the 
 works, but plaintiff's open and organized hostility to unionism in 
 general. It was shown that the plaintiff's president was at the head 
 of one national organization whose avowed purpose was to oppose 
 nearly all that union labor stands for, and that he held official positions 
 in otner organizations of employers in his own line of production 
 whose by-laws provided for various forms not only of resistance but 
 of aggressive action hostile to the unions. Under the circumstances 
 the action taken by the labor organizations against the plaintiff 
 might have been fairly considered a legitimate battle of trade, with 
 which a court of equity should not have interfered. The feature of 
 that case which is pertinent here is the viewpoint of the court which 
 granted an injunction against the defendants.
 
 6 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 Among the objects which the president and representative of the 
 plaintiff in the case proposed to accomplish in the labor field was the 
 maintenance of the "open shop," of which his company's plant was 
 an exemplar. 
 
 In dealing with its customers that company insisted upon and had 
 succeeded in establishing the "closed shop" that is to say, it made 
 a contract with just one dealer and no more in each town or city in the 
 country and bound the customer to deal in its goods exclusively. 
 And it was this right for which it sought and obtained the court's 
 protection. The court saw nothing wrong in the exclusion by con- 
 tract or combination between it and a dealer in each community of 
 all competition and the acquisition of the power to compel working- 
 men and all others to pay its prices or go without stoves and ranges ; 
 but when the union men, to whom that company denied the right of 
 establishing fair and reasonable hours, refused to patronize it and 
 asserted the right of free speech and freedom of the press in calling 
 attention to its unfairness the court concluded that was not permis- 
 sible and that it should be prevented, even if to prevent it required 
 the exertion of all the powers of the court. 
 
 The plaintiff in that case was, in all other respects, without protec- 
 tion from external forces and competitive enterprises. Other manu- 
 facturers to the number of more than 60 were in the market, each 
 competing, at least with respect to the volume of trade, through the 
 exclusive contract plan probably, and otherwise, each seeking to 
 establish a "closed shop for itself in each town; but they were all 
 members of the Stove Founders' National Defense Association, which 
 exhibited strong hostility to organized labor in its by-laws. Here 
 they stood united; but all the members were otherwise in competi- 
 tion each with the other. The courts afford no remedy against this 
 competition, and we consistently maintain that they should afford 
 none. And yet the court forbade by injunction labor from resorting 
 to effective means of competition for a fair division of the joint prod- 
 uct of capital and labor. 
 
 The agents of each of the sixty-odd manufacturers were free to 
 make whatever representations they pleased, truthful or untruthful, 
 about plaintiff's goods, and thus to boycott it, if you please, to the 
 fullest extent, and thus narrow its market and destroy its business, 
 and to do this from purely selfish or vindictive motives. Against all 
 this the plaintiff had never thought of seeking an injunction, and if 
 one had Deen sought the courts would have treated the application 
 as an absurdity. But when union labor, seeking the establishment 
 of better conditions for its members, and acting in its own interest in 
 pursuit of its legitimate objects, laid down a fair condition upon 
 which it would patronize the plaintiff and declared that until the 
 condition was accepted it would withhold its patronage, its entire 
 membership was enjoined from maintaining even this negative at- 
 titude toward the plaintiff. In other words, only one thing was 
 deemed important in that case, only one consideration seems to have 
 moved the court, and that was the successful continuance of the 
 plaintiff in business, the preservation of the market for it, at all 
 events, regardless of the interests and opinions of the members of 
 the unions, who were the principal retail purchasers of its products, as 
 to whether it was entitled" to a continuance of their favor. 
 
 And that case is fairly illustrative of many others.
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 7 
 
 JUDICIAL GUARANTIES AGAINST HAZARDS OF BUSINESS. 
 
 The courts, supposedly the representatives of the Government 
 and handmaids of public justice, are thus guaranteeing to a certain 
 class immunity against the ordinary vicissitudes and hazards of 
 business. And they are doing this in a country of supposed equals, 
 and in order to do it are robbing hundreds and thousands of men 
 of their liberties. They are meantime establishing a preferred 
 class a business despotism and exempting the membership of that 
 class from some of the difficulties and opposing forces which they 
 would have to encounter if recognition were given to the principle of 
 equality before the law and impartiality in the administration of 
 justice. 
 
 Employing capital is thus exempted, and labor correspondingly 
 discriminated against. It appears that some of the courts ha.ve un- 
 consciously imbibed the spirit of commercialism, and when led by 
 that spirit are no longer able to attach importance to the simple 
 ordinary rights of the citizen. Such courts act as if they considered 
 it the chief purpose of government to promote and encourage the 
 accumulation of wealth in the hands of those in possession of the 
 machinery of production and trade. In the presence of that purpose 
 all conflicting interests must yield. The interests and personal 
 rights of hundreds and thousands must give way whenever the con- 
 flict in court happens to come between the interests of what are desig- 
 nated "business men" and those of "wage earners." The failure of 
 an individual business man, or even an interruption of his operations, 
 is considered a misfortune of direst import as compared to the pa- 
 ralysis of the arms and tongues of any number of men having smaller 
 interests, though those interests be equally dear, or even vital, to the 
 possessors. 
 
 Gustavus Myers in the preface to his remarkable History of the 
 Supreme Court, of th United States says: 
 
 Instance after instance occurs where justices, at the end of long service on the 
 bench, have died virtually penniless or possessed of the most scantily moderate degree 
 of means. Yet many of those very justices were the same who by their decisions gave 
 to capitalists vast resources of power translatable into immense wealth. The influences 
 so consistently operating upon the minds and acts of the incumbents were not venal, 
 but class influences, and were all the more effective for the very reason that the 
 justices in question were not open to pecuniarily dishonest practices. 
 
 From training, association, interest, and prejudice, all absorbed in the radius of 
 permeating class environment, a fixed state of minu results. Upon conditions that the 
 ruling class finds profitable to its aims and advantageous to its power are built codes 
 of morality as well as of law, which codes are but reflections and agencies of those 
 all-potent class interests. 
 
 In the case of men whose minds are already permanently molded to such purposes, 
 and whose character and station forbid the use of illicit means, immeasurable sub- 
 servience can be obtained which crude and vulgar money bribery would hopelessly 
 fail to accomplish. Under these circumstances a great succession of privileges and 
 powers are given gratuitously, and class corruption appears as honest conviction 
 because of the absence of personal temptations and benefits on the part of the justices. 
 In this deceptive and insidious guise supreme judicial acts go forth to claim the 
 respect and submission of the working class, against whom the decisions are applied. 
 
 It would be useless to attempt hiding the social and economic 
 struggle out of which this issue has grown. No one who has given 
 thought to the subject can doubt that, among many causes for the 
 high cost of living and the consequently relative low wage rate for 
 labor is overcapitalization by corporations. The payment of divi-
 
 8 
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 dends on stocks which often represent no investment, or very little, 
 compels them to force the cost of living up at one end and the wages 
 of their employees down at the other. Thus they exploit both the 
 consumer and the wage earner, oftener than otherwise represented 
 in the same person. In order to pay these dividends they totally 
 ignore the claims of humanity, resort to speeding up, long hours, and 
 other forms of downright cruelty. To such extremes would they go 
 were it not for such resistance as organizations of labor can inter- 
 pose, and were we to leave in their hands the instrumentality of 
 iniunctive processes as now administered, they would soon reduce 
 labor in this country to a worse plight than in any nation of the 
 world worse even than that of Russian exiles in the coal mines of 
 Siberia. 
 
 Of course, writs of injunction are not recklessly and inconsideratelv 
 granted by all courts, but these large employing corporations, sucn 
 as constitute membership in the associations represented by Mr. 
 Hines, Mr. Dillard, Mr. Davenport, Mr. Emery, Mr. Monagkan, Mr. 
 Herrod, Mr. Drew, and others can always find a judge who fails to 
 properly discriminate between a good complaint and a bad one, a 
 fair order and one that is too drastic and too vague. 
 
 I will insert some figures furnished by Roger W. Babson, a cele- 
 brated statistician. These figures were obtained by him from the 
 returns of corporations under the corporation-tax law of 1909, and 
 are therefore official. 
 
 National corporation tax returns. 
 
 
 1910 
 
 1911 
 
 Increase. 
 
 Capitalization 
 
 $52.371,626.752 
 
 $57,886.430,519 
 
 $5,514,803,767 
 
 
 $31 333 952 6% 
 
 $30 715 336 008 
 
 i $618 616 688 
 
 Dividends 
 
 $3.125.480,000 
 
 $3. 300, 250, 642 
 
 $234, 779, 642 
 
 
 262,490 
 
 270,202 
 
 7,712 
 
 
 
 
 
 Of course vou will understand that these are returns only from 
 corporations "having net incomes of $5,000 and over and that some 
 classes of very large corporations are exempted from the tax and are 
 therefore also omitted. 
 
 Now, by their own showing in the record of the Senate hearings, 
 the gentlemen I have named represent a large number of these cor- 
 porations, which, with others not represented but directly interested, 
 employ the labor of this country. These are some of the corporations 
 which realize in profits and pay to their stockholders in dividends 
 over three and a quarter billions of dollars a year, taken back out of 
 the wages they pay and from moneys otherwise earned by the people 
 of this country. Last year their capitalization increased five and 
 one-half billions of dollars and their profits, represented in dividends, 
 increased over $234,000,000. 
 
 Such are the opponents of this bill. Such are the institutions that 
 object to loosening even one of the fetters they have placed upon the 
 limbs of labor, fetters which are held through the constant menace of 
 writs of inj unction and the fear of jail sentences.
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 9 
 
 I wish to present some further statistics on this subject. The 
 figures which I now present represent the operations of steam rail- 
 roads engaged in interstate commerce: 
 
 
 
 
 
 Ratio 
 
 
 
 
 
 
 operat- 
 
 
 
 
 
 
 ing ex- 
 
 Percent- 
 
 
 Total revenue. 
 
 Total outgo. 
 
 Net re-enue. 
 
 penses to 
 
 age, net 
 
 
 
 
 
 operat- 
 
 revenue. 
 
 
 
 
 
 ing reve- 
 
 
 
 
 
 
 nue. 
 
 
 
 
 
 
 Per cent. 
 
 
 1908 
 
 $2, 424, 640, 637 
 
 $1,695,101,878 
 
 $729,538,758 
 
 69.91 
 
 30.09 
 
 1909 
 
 2,393,805,989 
 
 1,669,547,876 
 
 730,235,381 
 
 69.75 
 
 30.25 
 
 1910 
 
 2,787,266,136 
 
 1, 847, 189, 773 
 
 940,076,363 
 
 66.27 
 
 33.73 
 
 
 
 
 
 
 
 It is also eminently proper on this occasion to call attention to a 
 few matters of relevant history. At the close of the Civil War so 
 large a proportion of transportation was by water and railroad mileage 
 and investment were relative^ so small that the latter was not a 
 matter of serious concern in any quarter as a political or financial 
 power. The lines were short ana they were operated merely as 
 feeders of transportation by water. Railroad bond issues outstand- 
 ing did not exceed $400,000,000. Now, it is claimed, or rather 
 admitted, by the highest railway authorities that altogether not more 
 than $8,000,000,000 of cash capital has been invested to date, and 
 yet they claim that the $18,000,000,000 of stocks and bonds out- 
 standing are not in excess of the value of the railroad properties. 
 
 In other words, that, considering present values, there is no over- 
 capitalization. Accepting all these claims and admissions at face 
 value, what do they prove ? They prove that each investment of $8 
 has resulted in a net increase in capitalization of $10. Eliminating 
 from the calculation the small beginning that had been made, starting 
 with 1866, and assuming the entire $8,000,000,000 as an investment 
 made at that date, a net increase is shown of 125 per cent in 44 years. 
 But inasmuch as the aggregate of original investment has increased 
 much faster during the last than during the first 22 years of the period, 
 it is at least fair to treat the investment of $8,000,000,000 as one 
 made 22 years prior to 1910. The showing then is of an average 
 annual net profit from investments in railroad properties of a fraction 
 over 5.77 per cent, which is found by dividing 125 oy 22. Now, with 
 one-seventh of the Nation's capital/all in the hands of one small class 
 of business men, withdrawing from all others 5 77 per cent of net 
 profit as against a much smaller percentage withdrawn by the rest 
 (estimated at 3 per cent), it is not difficult to see the end of prosperity 
 in all lines of enterprise other than that of transportation by rail. It 
 is clear that if some peaceable and lawful means be not found to end 
 this grossly unjust disparity the end will be complete financial des- 
 potism on the one hand and abject dependence on the other. 
 
 Now, that 5.75 per cent is practically guaranteed as a fixed income 
 on $18,000,000,000. But the interest paid on railroad bonds is much 
 less than 5 per cent, and runs as low as 3 per cent. The Interstate 
 Commerce Commission in 1904 made a report showing that the aver- 
 age dividend rate on railroad stocks was tnen 5^ per cent. The com- 
 mission's statistics show that in 1908 and 1909 it was 6.43 per cent,
 
 10 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 and as there was a great increase in net revenues in 1910 it is now over 
 7 per cent. The bonded indebtedness represents almost the entire 
 investment, and is less than one-half the capitalization; so that 7 
 per cent dividends is really 14 per cent on the actual investment, 
 assuming, though contrary to the fact, that the present owners of the 
 railroads made the investment, or any part of it. 
 
 But this does not tell the whole story. At least one-half the oper- 
 ating revenue goes to extensions and improvements which when made 
 belong to the holders of the stocks, who own the railroads. 
 
 I think that instead of trying to hold down their employees to low 
 wages with the menace of usurped iniunctive powers of the courts, it 
 would be fairer, and cheaper in the long run, to increase wages and 
 shorten the hours of toil. 
 
 There is another phase of this matter, however, to which I am 
 strongly tempted to call your attention. How long can the people of 
 this country stand these vastly disproportionate returns to class 
 capital ? It would relieve the situation somewhat if they gave their 
 employees shorter hours and better wages. Some of the stupendous 
 exactions from business and industry would thus find its way back to 
 the people who pay freights and fares, instead of creating multi- 
 millionaires, or being squandered in foreign countries and in wasteful 
 luxuries at home. 
 
 Mr. Hines went into the apparently irrelevant matter of wage 
 increases by the railroads. But in spite of nominal increases, the net 
 earnings of the railroads increased in 1910, when most of the increases 
 took effect over the net earnings of 1909, by more than $110,000,000. 
 
 I have inserted the foregoing statistics and commented upon their 
 significance because I recognize that the struggle between capital and 
 labor is really competitive. An irrepressible, inevitable conflict be- 
 tween the respective forces, with a just division of the joint products 
 of capital and labor as the issue, and that the unwarranted resort to tlje 
 process of injunction gives to one side of that conflict a grossly unfair 
 advantage. The courts should never interpose between these forces 
 unless the facts would warrant interference in the absence of a dispute, 
 and in other trade conflicts they never do interpose. 
 
 In Hopkins v. Oxley Stave Co. (83 Fed. R., 912) Judge Caldwell 
 said: 
 
 While laborers, by the application to them of tie doctrine we are considering, are 
 reduced to individual action, it is not so with the forces arrayed against them. A 
 corporation is an association of individuals for combined action : trusts are corporations 
 combined together for the very purpose of collective action and boycotting; and capi- 
 tal, which is the product of labor, is in itself a powerful collective force. Indeed, 
 according to this supposed rule, every corporation and trust is an unlawful combi- 
 nation, for while its business may be of a kind that its individual members, each 
 acting for himself, might lawfully conduct, the moment they enter into a combination 
 to do that same thing by their combined effort the combination becomes an unlawful 
 conspiracy. But the rule is never applied. 
 
 Corporations and trusts and other combinations of individuals and aggregations of 
 capital extend themselves right and left through the entire community, boycotting 
 and inflicting irreparable damage upon and crushing out all small dealers and pro- 
 ducers, stifling competition, establishing monopolies, reducing the wage of the laborer, 
 raising the price of food on every man's table and of the clothes on his back and of the 
 house that shelters him, and inflicting on the wage earners the pains and penalties of 
 the lockout and the black list, and denying to them the right of association and com- 
 bined action by refusing employment to those who are members of labor organizations; 
 and all these things are justified as a legitimate result of the evolution of industries 
 resulting from new social and economic conditions, and of the right of every man to 
 cany on his business as he sees fit, and of lawful competition.
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 11 
 
 On the other hand, when laborers combine to maintain or raise their wages or other- 
 wise to better their conditions or to protect themselves from oppression or to attempt 
 to overcome competition with their labor or the producers of their labor in order 
 that they may continue to have employment and live, their action, however open, 
 peaceful, and orderly, is branded as a "conspiracy." What is "competition" when 
 done by capital is "conspiracy" when done by laborers. No amount of verbal dex- 
 terity can conceal or justify this glaring discrimination. If the vast aggregation and 
 collective action of capital is not accompanied by a corresponding organization and 
 collective action of labor, capital will speedily become proprietor of the wage earners 
 as well as the recipient of the profits of their labor. This result can only be averted 
 by some sort of organization that will secure the collective action of wage earners. 
 This is demanded, not in the interest of wage earners alone, but by the highest con- 
 siderations of public policy. 
 
 In Vergelahn v. Guntner (167 Mass., 92) Justice Holmes, now of the 
 Supreme Court of the United States, said : 
 
 It is plain from the slightest consideration of practical affairs or the most superficial 
 reading of industrial history that free competition means combination, and that the 
 organization of the world, now going on so fast, means an ever-increasing might and 
 scope of combination. It seems to me futile to set our faces against this tendency. 
 Whether beneficial on the whole, as I think it is, or detrimental it is inevitable, 
 unless the fundamental axioms of society and even the fundamental conditions of 
 life are to be changed. 
 
 One of the eternal conflicts out of which life is made is that between the effort of 
 every man to get the most he can for his services, and that of society, disguised under 
 the name of capital, to get his services for the least possible return. Combination on 
 the one side is potent and powerful. Combination on the other is a fair and equal way. 
 * * * If it be true that the workingmen may combine with a view, among other 
 things, to getting as much as they can for their labor, just as capital may combine with 
 a view to getting the greatest possible return, it must be true that when combined they 
 have the same liberty that combined capital has to support their interest by argument, 
 persuasion, and the bestowal or refusal of those advantages which they otherwise law- 
 fully control. 
 
 I desire to read from what Lord Coleridge said in the great case of 
 the Mogul Steamship Co. v. McGregor (21 Q. B. Division, 544, 1892). 
 This is a case of conflict between capitalists for the control of the 
 carrying trade of the ocean. The court said: 
 
 There can be no doubt that the defendants were determined, if they could, to 
 exclude the plaintiffs from this trade. Strong expressions were drawn from some of 
 them in cross-examination, and the telegrams and letters showed the importance they 
 attached to the matter, their resolute purpose to exclude the plaintiffs if they could, 
 and to do so without any consideration for the results to the plaintiffs if they were suc- 
 cessfully excluded. This, I think, is made out, and I think no more is made out than 
 this. Is this enough? It must be remembered that all trade is, and must be, in a 
 sense selfish. Trade not being infinite nay, the trade of a particular place or district 
 being possibly very limited what one man gains another loses. 
 
 In the hand-to-hand war of commerce, as in the conflicts of public life, whether at 
 the bar, in Parliament, in medicine, in engineering I give examples only men fight 
 on without much thought of others, except a desire to excel or defeat them. Very 
 lofty minds, like Sir Philip Sydney, with his cup of water, will not stoop to take 
 advantage if they think another wants it more. Our age, in spite of high authority 
 to the contrary, is not without its Sir Philip Sydneys, but these counsels of perfection 
 it would be silly indeed to make the measure of the rough business of the world as 
 pursued by ordinary men of business. 
 
 I have already said that the same conflict goes on between capital for the trade of 
 the world, which is not infinite; goes on and is unavoidable between capitalists, 
 whether in individual hands or in the hands of these mighty combinations and 
 labor, and without organization the tendency inevitably is for labor to descend, and 
 that rapidly, to a condition of absolute servitude and helplessness. I say that, in 
 the nature of things and under present conditions, this warfare is unavoidable, and 
 there is the same justification for organized labor resorting to the legitimate and 
 recognized methods of warfare in its hard and unequal struggle against capital that 
 there is expressed in the foregoing extracts in the conflicts of capital against capital, 
 and the learned justices have shown you what extraordinary lengths are held justi- 
 fiable.
 
 12 PENDING BILLS FOB REGULATING INJUNCTIONS. 
 
 And in Pickett v. Walsh (192 Mass., 572) Judge Loring, delivering 
 the opinion, said: 
 
 Further, the effect of complying with the labor union's demands apparently will 
 be the destruction of the plaintiff's business. But the fact that the business of a 
 plaintiff is destroyed by the acts of the defendants done in pursuance of their right 
 of competition is not decisive of the illegality of the acts. It was well said by Ham- 
 mond, J., in Martell v. \Vhite (185 Mass., 255, 260), in regard to the right of a citizen 
 to pursue his business without interference by a combination to destroy it: "Speak- 
 ing generally, however, competition in business is permitted, although frequently 
 disastrous to those engaged in it. It is always selfish, often sharp, and sometimes 
 deadly." 
 
 The application of the right of the defendant unions, who are composed of brick- 
 layers and stonemasons, to compete with the individual plaintiffs, who can do noth- 
 ing but pointing (as we have said), is in the case at bar disastrous to the pointers and 
 hard on the contractors. But this is not the first. The case at bar is an instance 
 where the evils which are or may be incident to competition bear very harshly on 
 those interested, but in spite of such evils competition is necessary to the welfare of 
 the community. 
 
 To the same effect is Allis-Chalmers Co. v. Iron Holders' Union 
 (C. C.) (150 Fed. Rep., 155), per Sanborn, J. 
 
 Great changes are at work in the public thought of the Nation, and 
 labor is abreast of the times. 
 
 In the report of the House committee on this bill we find this 
 expression: 
 
 The idea has been advanced and ably supported in argument by one of the pro- 
 ponents of this legislation that liberty and more of it is safe in the hands of the work- 
 ingmen of the country. We are convinced of the merit and truth of that contention. 
 The tendency toward freedom and liberation from legal trammels and impediments to 
 progress and to a great social advance is seen in nearly all civilized nations. It is an 
 unpropitious time to oppose a reform like that embodied in this bill in view of the 
 fact that the abuses of power which it seeks to terminate have been, admittedly, 
 numerous and flagrant. 
 
 As evidence that organized labor fully understand their rights, I 
 read from the address of President Gompers to the last annual con- 
 vention of the American Federation of Labor, the same having been 
 unanimously adopted as the sense of the members. 
 
 POLITICAL CHANGES AFFECTING LABOR. 
 
 At length it has become evident to all open-minded men that important changes 
 are impending in our methods of government, and especially with reference to the 
 status of political parties. Voters are now demanding better reasons for their support 
 of a particular candidate than his nomination by a party or his indorsement by some 
 official or unofficial boss. The spirit of revolt and change is abroad in the land , and 
 the spirit of liberty which first inspired the Revolutionary leaders in 1776 has again 
 entered the hearts of the American people. The people who form the rank and file 
 of political parties are more progressive than their leaders. They will no longer sub- 
 mit to the rule of evasion and false pretenses found in platforms, presidential mes- 
 sages, and public addresses. They demand straight talk and open, honorable methods. 
 
 I hope to find henceforth that tte millions of intelligent men of labor, having passed 
 beyond the influence of campaign buncombe, have come to understand that the 
 welfare of the people and the promotion of the cause of labor are more important than 
 any party candidacy or empty partisan success. 
 
 In the progress being made toward popular rule, now seen not only in our own 
 country but in all nations, labor can justly claim an important, if not indeed a leading, 
 part. In this movement international boundaries may be disregarded. The manhood 
 and intellect associated in the war for the rights of men, differentiated from those of 
 wealth, privilege, and hereditary rank, belong to no particular race, class, or nation- 
 ality. The spirit of liberty and self-assertion overlaps mountain ranges and speeds 
 across the seas separating empires and continents. It can not be stayed by kings, nor 
 by injunctions and jail sentences.
 
 PENDING BILLS FOB REGULATING INJUNCTIONS. 13 
 
 True progress has never been by rapid strides, notwithstanding that a change from 
 the old to a new order comes with a suddenness which is almost startling, when after 
 a long period of dissension and preparation the people are ready. Labor has been 
 patient and persistent, enduring many wrongs and sacrifices. There should be no 
 retreat from the points of vantage it has conquered . 
 
 Labor's contentions of many years have at length become merged into, or have 
 rather coordinated with, those of the progressives of all parties. The people as a whole, 
 irrespective of class, condition, calling, or partisan alignment, have declared for 
 freedom in fact and not merely in name. They are taking affairs political into their 
 own hands. They will no longer tolerate the sale of legislation to the highest bidder 
 or the granting of franchises to the richest bribe giver. 
 
 Under the coming regime assuredly there are to be no more court decrees entered 
 as prepared in advance and ordered by the attorney for the stronger party stronger 
 politically or financially. Along with these abuses will depart the midnight injunc- 
 tion and the policeman's ready club, at the behest of those claiming a property right 
 in the labor of the vicinage, whether at work or on strike. In lieu of the political boss 
 and his machine we s. all have leadership of intelligence, pleading for public justice, 
 with adherents proportioned in number to the strength of the arguments. The stuffed 
 ballot box, the false count, and the perjured election return will likewise disappear. 
 With these opportunities, with these stimulating inducements to free thought and 
 action, the cause of public justice will be advanced in all directions. Labor, acting 
 from the point of enlightened self-interest, and yet with a full sense of responsibility 
 respecting the just rights of all others in society, will manfully and patriotically meet 
 its enlarged responsibilities. 
 
 Under the prevailing system of cut-and-dried platforms and slated nominations, 
 preceded by fake primaries, the ballot in our hands has not been, in any adequate 
 sense, either a protecting shield against wrong or a means of redress. We may not 
 for some time be entirely rid of the rule of parties. If they be an evil, they are such 
 as are incident to all governments based on popular suffrage. I deem it unwise, or 
 rather impolitic, to waste our energies now in efforts to abolish political parties. 
 Perhaps they are institutional in all free governments. But if we can not destroy 
 them we may, by more assiduous and regular exercise of our privileges and rights of 
 citizenship, do much in the way of controlling them. 
 
 Under existing conditions we must obtain various measures of legislation at the 
 hands of dominant parties in legislative bodies, and if party affairs are to remain in the 
 hands of corporate agents and corrupt bosses, as heretofore, then our interests will be 
 imperiled and the desired end retarded no matter which party has the majority. 
 
 "But political parties should, after all, be treated as means to an end. The success 
 of a party should never outweigh the accomplishment in legislation or administration 
 of the important purposes of labor. In casting our ballots we should ever distinguish 
 whenever possible between our friends and our enemies, and between these should be 
 no division on party lines among us. On general party issues it would be useless to 
 attempt bringing about unity of action, and perhaps it is better in the long run that 
 such is the case. But when we are seeking legislation from Congress on so vital a 
 matter as curtailment of personal liberties, including the right of free speech and free 
 press, we should be a unit in opposition to candidates who stand in the way, no matter 
 how exalted the office sought by them. 
 
 DO ABUSES EXIST? 
 
 Abuses in issuing and enforcing injunctions do exist, and so serious 
 have they been that two Presidents, one of whom had been himself 
 a judge, were compelled, presumably by sense of duty, to send mes- 
 sages to Congress calling attention to them and suggesting legislative 
 remedies. 
 
 Every well-informed lawyer in the country knows that such abuses 
 exist, and some judges have spoken of them in condemnation. And 
 yet there has not been a suggestion from one of the half dozen counsel 
 appearing in opposition to this bill that Congress should amend the 
 law in any particular. On the contrary, you may read each argument 
 in turn and you will find that every single feature and provision of 
 the bill, from the general purport to the minutest detail, is bitterly 
 assailed and the same old decisions and the same old threadbare
 
 14 PENDING BILLS FOB REGULATING INJUNCTIONS. 
 
 arguments employed in one speech after another. As showing the 
 attitude of the opposition, I call attention to the fact that the char- 
 acter of opposition before the House committee was just as vindictive, 
 just as unyielding, just as uncompromising, just as hardened against 
 reason, as before the Senate committee. At the hearings before the 
 House committee one of the members said to the gentleman whom I 
 consider the leader in opposition, Mr. Davenport: 
 
 I should like to ask you this question. In the course of an experience which haa 
 been more extensive than that of any other man I know, has it come to your observation 
 that the writ of injunction, in its issuance, is abused in any way at ail? 
 
 The reply was: 
 
 Never. They are really very hard to get. 
 Then he was asked : 
 
 Is there any suggestion that it occurs to you to make for a change in the administra- 
 tion of the law? 
 
 And he replied: 
 
 No; not even the one contained in the proposition of Mr. Moon in the last Congress. 
 
 The Moon proposition was offered in the House as a substitute for 
 the Clayton bill, which passed the House by a vote of 243 to 31. 
 
 The substitute was defeated by a vote of 48 to 220. 
 
 I can not, of course, quote from the presidential messages; but 
 during Mr. Roosevelt's incumbency he urged legislation in messages 
 of the following dates: December 5, 1905, January 31, 1908; March 
 25, 1908; and December 18, 1908.- President Tart included recom- 
 mendations for such legislation in messages dated December 7, 1909, 
 and December 6, 1910. Over and over in these messages it was 
 declared that abuses exist and that it was the duty of Congress to 
 legislate on the subject. 
 
 Mr. Davis, of West Virginia, a member of the House Judiciary 
 Committee, summed up the principal forms in which these admitted 
 abuses have appeared in a speech in the House on the Clayton bill, 
 May 14, 1912. He was answering another member of the committee, 
 who had asserted, as counsel have asserted in the Senate hearings, 
 that there have been no instances of judicial abuse herein. Mr. 
 Davis said : 
 
 I accept the challenge of the gentleman from Pennsylvania, Mr. Moon, and assert 
 that if the testimony of the witnesses before the committee did not disclose them, still 
 the reported cases will show at least five glaring abuses which have crept into the 
 administration of this remedy. I name them: 
 
 The issuance of injunctions without notice. 
 
 The issuance of injunctions without bond. 
 
 The issuance of injunctions without detail. 
 
 The issuance of injunctions without parties. 
 
 And in trade disputes particularly, the issuance of injunctions against certain well- 
 established and indisputable rights. These are the evils which this bill seeks to cure. 
 
 But there are other authorities upon the necessity for legislation 
 to correct not only uncertainties hi the practice, but erroneous views 
 of judges as to their powers. I quote from an authority which has 
 been freely quoted by counsel in opposition. I refer "to Martin's 
 Law of Labor Unions. He says in his preface: 
 
 There is, however, a great lack of harmony in the decisions relating to trade dis- 
 putes, and many of them, it is believed, are erroneous in principle and oppressive 
 and unjust to organized labor. In this category may be placed decisions which hold 
 without qualification that strikes or threats of strikes to procure the discharge or
 
 PENDING BILLS FOE EEGULATING INJUNCTIONS. 15 
 
 prevent the employment of workmen are unlawful and criminal, as being unwar- 
 rantable interference with the business of the employer, and an invasion of the rights 
 of the workmen against whom these acts are directed; denying unions the right to ex- 
 ercise disciplinary measures in accordance with their rules and by-laws; to compel 
 insubordinate members to join in a lawful strike or continue on strike after going out; 
 holding that all picketing is unlawful; enjoining unions at the instance of an em- 
 ployer against whom a strike is in operation from giving strike pay or using its funds 
 in furtherance of picketing; requiring defendants against whom a writ of injunction, 
 delective and ambiguous in its terms, has been awarded, to ascertain, or, more prop- 
 erly speaking, to attempt to ascertain what is prohibited by reading the writ in con- 
 nection with the bill. 
 
 In view of all the foregoing utterances, it is surprising to find any- 
 one to claim that the injunctive remedy should not, at any rate, be 
 safeguarded in its issuance and enforcement by all possible checks and 
 formalities to prevent its abuse. No one who has given it proper 
 study will deny that, even when issued within the jurisdiction, it is a 
 species of judicial legislation. And since, as such, it is legislation by 
 one man, the restrictions should be at least equal to those by which 
 Congress is governed in the enactment of statutes. Upon Congress 
 are imposed constitutional requirements; and in addition to these are 
 the rules and committee service, all intended to prevent imposition, 
 possibility of abuse of privilege and surprise, and to guard against 
 ambiguity and vagueness in the language of enactments. In view 
 of all this, it is strange that to this time no restrictions have been 
 placed upon the judiciary with respect to these methods of exercising 
 their extraordinary powers. An injunction may always develop into 
 an ex post facto law, the vindicatory part to be enacted and put in 
 force after the doing of an act which^the court considers or construes 
 to be a violation. 
 
 Justice Baldwin, in Bonaparte v. Railroad Co. (217 Fed. Cases, 
 1617), said: 
 
 There is no power the exercise of which is more delicate, which requires greater 
 caution, deliberation, and sound discretion, or is more dangerous in a doubtful case 
 than the issuing of an injunction. It is the strong arm of equity, and never ought to 
 be extended unless in cases of great injury, where courts of law can not afford an ade- 
 quate or commensurate remedy in damages. The right must be clear, the injury im- 
 pending or threatened, so as to be averted only by the protective preventive process of 
 injunction but that will not be awarded in doubtful cases, or new ones not coming 
 within well-established principles, for if it issues erroneously, an irreparable injury is 
 inflicted, for which there can be no redress, it being the act of a court, not of the party 
 who prays for it. It will be refused till the court are satisfied that the case before 
 them is of a right about to be destroyed, irreparably injured, or great or lasting injury 
 about to be done by an illegal act. 
 
 PROVISIONS OF THE CLAYTON BILL. 
 
 The first section of the bill amends section 263 of the Judicial Code 
 so as to safeguard the first step in a proceeding for injunction. It 
 reads as follows: 
 
 SEC. 263. That no injunction, whether interlocutory or permanent, in cases other 
 than those described in section 266 of this title, shall be issued without previous 
 notice and an opportunity to be heard on behalf of the parties to be enjoined, with 
 notice, together with a copy of the bill of complaint or other pleading upon which 
 the application for such injunction will be based, shall be served upon the parties 
 sought to be enjoined a reasonable time in advance of such application. But if it 
 shall appear to the satisfaction of the court or judge that immediate and irreparable 
 injury is likely to ensue to the complainant, and that the giving of notice of the 
 application or the delay incident thereto would probably permit the doing of the 
 act sought to be restrained before notice could be served or hearing had thereon, the
 
 16 PENDING BILLS FOR BEGULATING INJUNCTIONS. 
 
 court or judge may, in his discretion, issue a temporary restraining order without 
 notice. Every such order shall be indorsed with the date and hour of issuance, shall 
 be forthwith entered of record, shall define the injury and state why it is irreparable 
 and why the order was granted without notice, and shall by its terms expire within 
 such time after entry, not to exceed seven days, as the court or judge may fix, 
 unless within the time so fixed the order is extended or renewed for a like period, 
 after notice to those previously served, if any, and for good cause shown, and the 
 reasons for such extension shall be entered of record. 
 
 The formalities and safeguards here provided in section 263 are 
 only such as are necessary, in view of what I have already set forth; 
 also in view of what Justice Baldwin said in the case cited. 
 
 Section 266a adds a new section to the code to require security hi 
 all cases and reads as follows: 
 
 SEC. 266a. That no restraining order or interlocutory order of injunction shall issue 
 except upon the giving of security by the applicant in such sum as the court or judge 
 may deem proper, conditioned upon the payment of such costs and damages as may 
 be incurred or suffered by any party who may be found to have been wrongfully 
 enjoined or restrained thereby. 
 
 I now read from Foster's Federal Practice, page 753: 
 
 Later the practice (i. e., the practice as to security) was extended to interlocutory 
 injunctions granted upon notice to the defendant, first in special cases, then generally; 
 and now they (i. e., bonds) are usually required as a matter of course in England and 
 in most of the United States, although in some of the circuits the Federal judges are 
 accustomed to grant injunctions without such requirement. 
 
 Section 255b of the bill also adds a new section to the code. It 
 reads as follows: 
 
 SEC. 266b. That every order of injunction or restraining order shall set forth the 
 reasons for the issuance of the same, shall be specific in terms, and shall describe in 
 reasonable detail, and not by reference to the bill of complaint or other document, the 
 act or acts sought to be restrained, and shall be binding only upon the parties to the 
 suit, their agents, servants, employees, and attorneys, or those in active concert with 
 them, and who shall by personal service or otherwise have received actual notice of 
 the same. 
 
 There can be no greater justice than that parties upon whom the 
 edict of a judge falls, often without notice, shall know the exact con- 
 dition in which it places him; and there can be no greater injustice, 
 no greater cruelty, I might say, than to impart to him merely a vague 
 or indefinite understanding that his past or present conduct has been 
 already condemned by the court, leaving him to guess as to his proper 
 deportment, groping in darkness with fear and trembling lest he be 
 dragged before a single judge and sentenced to imprisonment for acts 
 which have been done in a belief that he was not answerable before a 
 court. 
 
 I can not describe all the defects of process by which the parties 
 served are left in doubt and perplexity and exposed to oppression 
 and injustice. But it is a common bad practice to include in these 
 writs and orders, at the end, an omnibus or basket clause, forbidding 
 all other acts of similar character, or referring for further details to 
 the prayer of the bill, in the hope that anything which might have 
 been omitted by the zealous lawyer will be corrected by the court 
 when the time comes for punishing the party for contempt. 
 
 It is claimed that the present practice affords ample safeguards, 
 that there are no precedents justifying the provisions of this section. 
 In view of my investigation and study, the result of which I intend 
 laying before the committee, I can scarcely conceive of a greater 
 untruth. The present law affords no security whatever against
 
 PENDING BILLS FOR EEGULATING INJUNCTIONS. 17 
 
 vague, indefinite, ambiguous, misleading, bewildering commands of 
 the courts. The Supreme Court rules, which have been again and 
 again referred to, do not help us any herein. They neither cover 
 the subject nor do they conflict with anything in this section. I will 
 not take your time to read to you the Supreme Court rules, but throw 
 out this challenge, and counsel may call any conflicting provision 
 which they can find to the attention of the committee. 
 
 Among the many authorities I might cite as to what is proper, 
 commendable, and salutary in practice, which is no more than is 
 aimed at in this section, is Foster's Federal Practice (p. 745), where 
 it is said: 
 
 The writ should contain a concise description of the particular acts or things in 
 respect to which the defendant is enjoined and should conform to the directions of 
 the order granting the injunction. * * * The defendants ought to be informed, 
 as accurately as the case permits, what they are forbidden to do. It seems that a writ 
 is insufficient which designates the acts sought to be enjoined by a reference to the 
 bill without describing them. 
 
 Now, in support of Mr. Foster, I will cite Swift & Co. v. United 
 States (196 U. S., 376), where it was said: 
 
 On the other hand, we equally are bound by the first principles of justice not to sanc- 
 tion a decree so vague as to put the whole conduct of the defendant's business at the 
 peril of a summons for contempt. We can not issue a general injunction against all 
 possible breaches of the law. * * * The general words of the injunction "or by 
 any other method or device, the purpose an^ effect of which is to restrain commerce 
 as aforesaid, " should be stricken out. The defendants ought to be informed as accu- 
 rately as the case permits what they are forbidden to do. 
 
 That case was followed in New York, N. H. &. H/R. R. Co. v. 
 I. C. Com. (200 U. S., 404), the court adding to what was said in the 
 Swift & Co. case these words, here especially significant and relevant: 
 
 To accede to the doctrine relied upon would compel us, under the guise of protect- 
 ing freedom of commerce, to announce a rule which would be destructive of the 
 fundamental liberties of the citizen. 
 
 I call attention to the fact that the words " or by any other method 
 or device, the purpose and effect of which is to restrain commerce as 
 aforesaid/' which the court condemned and ordered stricken out as 
 a menace to liberty, are the rery words (or equivalent words) which 
 several opponents of this provision strenuously insist should be 
 retained as part of the practice pursued in labor cases. In so insist- 
 ing they confess themselves unwilling to conform to correct practice, 
 as laid down by the Supreme Court, and admit that a reprehensible 
 different practice has been pursued. 
 
 Members of the Senate committee have been calling for some 
 explanation of the purpose of this provision. Some of you may 
 have heard of blanket injunctions. Whether you have or not, the 
 labor people have, and I would not say that their meaning is known 
 to them, because that is something past finding out. But they have 
 learned from sad experience of their effect. Presently I shall exhibit 
 to you several specimens of the article, some placed in the record by 
 Mr. Monaghan and some by myself; but first I wish to call your atten- 
 tion to what I would not call practice, but malpractice, amounting to 
 crime. It is one of the most important phases of this subject, and is 
 alone a justification for all these first three sections. I refer to the 
 devices and tricks of injunction lawyers by which they wreak upon 
 workmen on strike all the disastrous consequences of an injunction 
 57939 12 2
 
 18 PENDING BILLS FOB BEGULATING INJUNCTIONS. 
 
 rightfully issued, but without any basis of right, justice, or law, and 
 yet escape all risk and responsibility of being themselves called to 
 account or their clients incurring any liability. 
 
 In the first place, the complaint, though usually voluminous, is filled 
 with irrelevant and immaterial allegations and is defective in material 
 essential specifications. Such complaint will be presented to a judge, 
 who naturally shrinks from going through and scrutinizing a long doc- 
 ument. He relies in part upon the attorney's representations of what 
 he can prove and issues a restraining order, 'already prepared, and that 
 is usually a drastic, comprehensive injunction, often so stringent that it 
 barely leaves the defendants room to breathe. He serves the order 
 on a few of the leaders among those participating in the trouble and 
 takes care that his sharp practice is immediately exploited hi the press. 
 Now, even the leaders can seldom understand the matter even with the 
 help of such lawyers as they are able to employ. 
 
 We hear about disobedience in such cases and about the necessity of 
 serving hundreds and thousands of men. It is all moonshine. There 
 may be rare exceptions; but, as a rale, whether several or many are 
 served, all hear of it and all are completely demoralized and discour- 
 aged. No matter how just their side of the dispute, the very fact that 
 a court possessing plenary and arbitrary powers has interfered on the 
 other and stronger side, the side of capitalistic and police power, is an 
 insuperable obstacle to winning the strike. So what is the use to 
 appear and defend? Mr. Monaghan is correct at least in his state- 
 ment as to the effect of a restraining order or injunction. It is true 
 that few injunction cases involving labor disputes are reported. The 
 first act of the judge is as destructive to the strike as would be a volley 
 of musketry, with its incidental carnage. 
 
 What becomes of the complaint or affidavits ? It is a subject that 
 some committee ought to investigate. As a rule, the complaint dis- 
 appears immediately. The clerks are usually very accommodating 
 to the attorneys for big employers of labor; besides, in some jurisdic- 
 tions the attorneys are allowed to retain the original papers. In 
 1906, when I first appeared before the House Judiciary Committee, 
 I tried in vain to obtain copies of complaints in some of these cases. 
 About that time an injunction was issued in the District of Columbia, 
 which I thought and still think a clear abuse. I applied at the clerk's 
 office while the case was fresh, but found that the attorneys had 
 withdrawn the papers. Upon application to them it was claimed 
 that they had been mislaid at any rate, I could not get a look at 
 the complaint. All that I could make available was the order. 
 
 In the course of his argument, Mr. Monaghan made very broad 
 assertions as to the hesitancy of the courts to grant injunctions and 
 their careful scrutiny of applications. He gave a surprisingly small 
 number as having been issued in labor disputes. Being pressed by 
 the committee, he admitted that his estimate was based only on 
 reported cases. He also admitted that in many cases no report 
 was available. Of course not. The injunctions and restraining 
 orders against strikers run into the hundreds every year. He was 
 requested to produce records, orders, and injunctions. He has pro- 
 duced just three complaints, with accompanying affidavits, and the 
 record contains just 15 out of 3 times that number of orders and 
 injunctions issued on application of his clients alone.
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 19 
 
 The second clause of section 266b says of the injunction or restrain- 
 ing order that ' 'it shall be binding only on the parties to the suit, their 
 agents, servants, employees, and attorneys, or those in active con- 
 cert with them, and who shall by personal service or otherwise have 
 received actual notice of the same." 
 
 Notwithstanding all criticisms hurled against this provision by 
 learned and ingenious counsel, I insist that it embodies the law as it 
 now is according to best authorities, and that to have it otherwise, 
 even if courts confined themselves to rightful jurisdiction, leaves the 
 way open to intolerable abuses and judicial tyranny of a character 
 which will, unless corrected soon, overturn the Republic and establish 
 despotism on its ruins. 
 
 Time and again have we been referred to the Debs case as a prece- 
 dent and basis for the opposition to this provision. I deem it worth 
 while to call special attention to that case again and in this connec- 
 tion. It is first to be noted that the case in the lower court was not 
 the case heard in the Supreme Court. The excesses and superfluities 
 of the writ were not before the supreme court. Debs was a party 
 named in the writ, and had been served. No defect or excess of any 
 pleading or process was there involved. It was a habeas corpus pro- 
 ceeding, and therefore necessarily turned on a question of the lower 
 court's jurisdiction. I claim that the order and writ in the lower 
 court were monstrosities, but whether they were or not is a question 
 never judicially passed upon in that case. 
 
 In addition to forbidding about everything that men could con- 
 ceive of or imagine, the order named certain defendants, of whom 
 Debs was one, and then commanded and enjoined "all other persons 
 whatsoever." A learned commentator, writing in the Harvard Law 
 Review of the period (8 Harv. L. Rev., 228), and speaking dispas- 
 sionately, said: 
 
 It is difficult to see how such injunctions can stand the test of precedent and prin- 
 ciple. An injunction issues in a civil suit to any party who has been complained of, 
 at least, and has had notice of the motion of his adversary. To be obliged to wait until 
 the injunction has been violated to determine against whom it was issued ought to be 
 enoiigh to show that it is not an injunction at all, but in the nature of a police procla- 
 mation, putting the community in general in peril of contempt of court if the procla- 
 mation be disobeyed. Courts of equity were evidently not intended to possess such 
 functions, and it must be regretted that Judge Grosscup, in his most commendable 
 eagerness to offset the criminal inaction of Gov. Altgeld, should have been forced to 
 such a legal anomaly. The power of a court to imprison for contempt of its orders or 
 of the persons of its 'judges is an arbitrary one at best, and to stretch it as here in the 
 time of disorders and almost panic in the immediate vicinity would seem to show that 
 the court has been deserted by the calm judicial temper which should always char- 
 acterize its proceedings. 
 
 But the loose, deplorable, and reprehensible practices w^hich this 
 provision condemns and would end have been expressly condemned 
 by the Supreme Court, both in its rules and decisions. " Equity rule 
 48 provides as follows: 
 
 Where the parties on either side are very numerous and can not without manifest 
 inconvenience and oppressive delays in the suit be all brought before it, the court, in 
 its discretion, may dispense with making all of them parties and may proceed in the 
 suit, having sufficient parties before it to represent all the adverse interests of the 
 plaintiffs and the defendants in the suit properly before it. But hi such cases the 
 decree shall be without prejudice to the rights and claims of all the absent parties. 
 
 Scott v. McDonald (165 U. S., 107) was a case arising under the 
 South Carolina dispensary law. A writ of injunction had been
 
 20 PENDING BILLS FOB KEGULATING INJUNCTIONS. 
 
 applied for to and issued by the circuit court. The defendants were 
 certain parties named and "all other persons claiming to act as con- 
 stables, and all sheriffs, policemen, and other officers acting or claim- 
 ing to act under the South Carolina dispensary law." When that 
 injunction came before the Supreme Court of the United States it 
 laid down a rule which I claim is that laid down in the provision of 
 this bill now under consideration. The court said: 
 
 The decree is also objectionable because it enjoins persons not parties to the suit. 
 This is not a case where the defendants named represent those not named. Nor is 
 there alleged any conspiracy between the parties defendant and other unknown 
 parties. The acts complained of are tortious and do not grow out of any common 
 action or agreement between constables and sheriffs of the State of South Carolina. 
 We have, indeed, a right to presume that such officers, though not named in this 
 suit, will, when advised that certain provisions of the act in question have been 
 pronounced unconstitutional by the courts to which the Constitution of the United 
 States refers such questions, voluntarily refrain from enforcing such provisions; but 
 we do not think it comports with well-settled principles of equity procedure to include 
 them in an injunction in a suit in which they were not heard or represented, or to 
 subject them to penalties for contempt in disregarding such an injunction. (Fellows 
 v. Fellows, 4 John Chan., 25, citing Iverson v. Harris, 7 Yes., 257.) 
 
 The decree of the court below should therefore be amended by being restricted 
 to the parties named as plaintiff and defendants in the bill, and this is directed to 
 be done, and it is otherwise affirmed. 
 
 Not speaking with especial reference to labor disputes, the unwar- 
 ranted comprehensiveness of restraining orders is well designed to 
 defeat the rule as to parties and drag into the toils of litigation just 
 the number required in order to defeat every purpose of a strike, 
 whether or not those so enmeshed have done more than merely 
 assume a negative attitude by the severance of relations and have 
 patiently and steadily preserved it. It is not every lawyer even who 
 would be able to analyze and draw the line between the legal dis- 
 crepancies in such a case and take the proper steps to preserve the 
 rights of unoffending persons held to account as participants in illegal 
 conduct without being even mentioned by name on the complaint or 
 order. Is it any wonder, then, that advantage has been taken of the 
 loose and inconsiderate practice which these representative orders 
 show the courts have sanctioned and of which workingmen complain ? 
 
 I will here mention one or two terms often loosely used by the 
 courts: "Combination" and "conspiracy" describe illegal associa- 
 tions, and their meanings are the same for all practicable legal pur- 
 poses. " Association " primarily denotes an entirely legal relation 
 between the members. It is often said, however, by the courts, when 
 a body of organized labor embarks upon an illegal undertaking, that 
 it is a combination or conspiracy, an expression signifying that the 
 association itself has become unlawful or criminal. 
 
 In legal essence all illegal acts of the membership of such an asso- 
 ciation, whether done by them singly or collectively, are perpetrated 
 beyond and outside its purpose and should impose no legal conse- 
 quence by way of injunction or otherwise upon the association as 
 such or upon its members as such. In Pickett v. Walsh (192 Mass., 
 572, 589) the court said: 
 
 There is a point of practice which must be noticed. As we have said, the plaintiffs 
 have undertaken to make three unincorporated labor unions parties defendant. That 
 is an impossibility. There is no such entity known to the law as an unincorporated 
 association, and consequently it can not be made a party defendant. 
 
 Often has this well-established rule of law been completely over- 
 looked or ignored in labor cases. That this principle was willfully
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 21 
 
 and knowingly violated in all the cases in which Mr. Monaghan was 
 counsel for complainants is seen by placing side by side the bills of 
 complaint which he placed in the record and his admission at page 58 
 of the hearings, where he said: 
 
 We can not sue the union as a voluntary unincorporated association because there 
 is no statute upon the books of the Federal Government which permits a suit against 
 a voluntary unincorporated organization as such. 
 
 The doctrine of ultra vires should apply here as in the case of cor- 
 porations. According to that doctrine illegal acts done by officers 
 and stockholders create personal liability only, and in no way bind 
 the corporation. But only in rare instances have the courts given 
 the labor organizations the benefit of the application of the doctrine, 
 and in many cases have brought into the litigation and held to account 
 the entire membership, though the vast majority had never pre- 
 viously heard of the acts done or had any intention to participate 
 in doing them. In Bucks Stove & Range Co. v American Federation 
 of Labor and others the boycott was instituted and prosecuted 
 mainly by the St. Louis Labor Council, not connected in any sense 
 with the national organization. The officers of the latter merely 
 placed the complainant on an unfair list in the official magazine. 
 Not more than a few hundred, or at most a few thousand, persons 
 knew of the boycott. And yet the American Federation, as a volun- 
 tary association, and each of its million and a half of members were 
 enjoined and rendered liable to punishment for contempt. 
 
 That is therefore a wise provision of this bill which requires per- 
 sonal notice to all parties whom it is sought to bind with orders 
 granting injunctions and restraining orders. 
 
 In the hearings before the House committee have been placed from 
 time to time various restraining orders and injunction writs. Alto- 
 gether, if inserted here they would needlessly occupy much space. 
 A description of their excesses and omissions alone will suffice to show 
 the necessity of this bill. 
 
 The first instance to be noticed is Kansas & Texas Coal Co. v. 
 Denney, decided in the district court for Arkansas. And here, as in 
 most of such cases, no full official report of the case can be obtained 
 from the published reports, but only a mere memoranda. The trouble 
 and expense of procuring certified copies of the records have had to be 
 resorted to in some instances. In this case the defendants (strikers) 
 were ordered to be, and were, enjoined from "congregating at or near 
 or on the premises or the property of the Kansas & Texas Coal Co. in, 
 about, or near the town of HurTtington, Ark., or elsewhere, for the 
 
 Surpose of intimidating its employees or preventing said employees 
 om rendering service to the Kansas & Texas Coal Co.; from inducing 
 or coercing, by threats, intimidation, force, or violence, any of said 
 employees to leave the employment of the said Kansas & Texas Coal 
 Co.; or from in any manner interfering with or molesting any person 
 or persons who may be employed or seek employment by and of the 
 Kansas & Texas Coal Co. in the operation of its coal mines at or near 
 said town of Huntington or elsewhere." 
 
 It will be observed that a defendant in that suit would render him- 
 self liable to punishment for contempt if he met a man seeking employ- 
 ment in a foreign country and persuaded him not to enter its service. 
 In the case of Adams v. Typographical Union in the Supreme 
 Court of the District of Columbia no mention was made of the
 
 22 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 filing of any complaint or of any reason whatever why the parties 
 were restrained. Striking through the typographical union, all its 
 members were dragged in those who had and those who had not 
 done the forbidden acts were placed on the same footing of condem- 
 nation. The union, a mere word sign in legal sense, was impleaded 
 as a defendant. We find in the order this broad, almost limitless, 
 command and prohibition, "from interfering with any of the com- 
 plainants in the conduct of their business for the purpose of prevent- 
 ing them from conducting the same hi their own lawful way." Also 
 this: 
 
 Such injunction to remain in force during the pendency of this proceeding, or until 
 the further order of the court. 
 
 This was not a restraining order, but an injunction, issued at and 
 upon filing the complaint. There isn't a word in the compliant in 
 tne case about loss or financial detriment to result from the acts of 
 the defendants. It is also observable that the order contained not a 
 word to show why it was issued, not even a mention of the filing of a 
 complaint. It gave the parties no day in court for the purpose of 
 getting rid of it, nor was any other relief prayed other than the 
 advantage to accrue to the complaintants by the issuance of the 
 injunction. There have been many such orders and injunctions 
 issued in the first instance here in the District. 
 
 In the Bucks Stove & Range case the order was so long and in- 
 volved that a busy man would almost prefer paying a fine to having 
 to read it. Among other matters were these words : 
 
 And froni interfering in any manner with the sale of the product of the complain- 
 ant's factory or business by defendants, or by any other person, firm, or corporation. 
 
 Now, if one of the million and a half persons dragged in by using 
 the associate name or anyone else had a stove or range to sell, he was 
 forbidden to tell a prospective purchaser that it was a better article 
 than that offered by the complainant; much less could he tell him 
 that complainant was unfair to labor. They were forbidden "from 
 declaring or threatening a boycott against the complainant or its 
 business or the product of its factory." Such a clause is clearly 
 forbidden by the Supreme Court in Swift & Co. v. U. S. and in the 
 Chesapeake Coal case, elsewhere pited. But if the goods were of 
 inferior quality, the defendants couldn't mention the fact to their 
 friends or relations; neither the American Federation of Labor nor any 
 of its members could declare a primary boycott against the com- 
 plainant for any cause. And I note that the complaint was pro- 
 jected on the theory of a secondary boycott, and toward the close 
 we have in the restraining order this swooping overlapping clause 
 "and in any manner whatsoever impeding, obstructing, interfering 
 with, or restraining the complainant's business, trade, or commerce." 
 This also was exactly the excess which the court in the Swift and 
 Chesapeake Coal cases condemned as dangerous to personal liberty. 
 
 I will not go into the details of the Alaska case, since we are not 
 much surprised at anything happening there. But the order had all 
 the usual excesses, including the usual catch-all clause running to the 
 end of time and covering all possible activities of the defendants. It 
 also assumed to drag in all tne members of the union, wherever they 
 niight be or however circumstanced, by the simple expedient o"f 
 impleading the union as a defendant.
 
 PENDING BILLS FOE EEGtJLATING INJUNCTIONS. 23 
 
 In the Massachusetts case it will be noted that the union was 
 impleaded according to the usual bad practice, and with the Supreme 
 Court's decision in rickett v. Walsh staring them in the face. This 
 order enjoins them "to desist and refrain from interfering with the 
 business of the complainants, or any of them, by the use of threats, 
 force, or intimidation, with anyone seeking employment as seaman 
 with any of the complainants or their agents, or by the use of promises 
 to pay board," etc. The order here fan's to state that any complaint 
 had been filed, but, "whereas it has been represented unto us by the 
 complainants," naming them, "that the said complainants have 
 exhibited a bill of complaint," etc. No complaint in such a case 
 under any correct system of pleading could possibly have shown a 
 cause of action in more than one complainant, and yet here were a 
 dozen joined, no doubt with a view to overawing the defendants into 
 submission. 
 
 The order in the West Virginia case (Hitchman C. & C. Co. v. 
 Mitchell et al.) possesses the vice of not containing the name of 
 either complainant or defendant. It is more in the form of a procla- 
 mation by a military commander or provisional governor of a con- 
 quered province in war times than anything I can think of. Under 
 that order it would have been dangerous for any member of the union 
 to have made any statement or representation whatever about the 
 complainant or complainant's business to anyone seeking employ- 
 ment with the complainant, even if the person seeking employment 
 had asked for information. It was what might be termed a roving 
 injunction, calculated to catch and bind anyone upon whom it might 
 be served or to whose attention it might be called. 
 
 I will not attempt to make extracts from it. It is all so bad that 
 I would not know where to begin or end. It was issued by United 
 States Judge Dayton, and is attested by the clerk of his court, though 
 not signed by the judge. That thing was entitled and styled a re- 
 straining order, but had all the terms and legal effect to be found hi 
 any permanent inj unction. Its drastic, far-reaching, and stringent 
 prohibitions were introduced with the words "it is therefore ad- 
 judged, ordered, and decreed by the court," etc. There is not in 
 it a line or word to inform the reader as to the offenses or wrongs 
 charged against them. There was no notice nor order nor opportunity 
 to show cause why the order should not stand until the day set for 
 final hearing, nor any way to get rid of it upon any ground until the 
 end of a protracted and expensive litigation. And hi order to make 
 the destruction of the rights of the defendants all the more complete 
 and certain, the hearing was set 2 months and 21 days after the date 
 of its issuance. 
 
 Before discussing in detail the court records produced by Mr. 
 Monaghan, attorney for the founders' association, I will call atten- 
 tion to the showing of the records produced by him with reference 
 to the practice which has characterized the conduct of such cases. 
 In the first place, we note that each and every attorney lor these 
 industrial corporations denies emphatically that any court has in 
 any instance abused its power or exceeded its jurisdiction and has 
 asserted, apparently with entire candor, that the most that can be 
 imputed to the judges is an occasional error or irregularity. 
 
 Now, Mr. Monaghan admitted that some injunctions and restrain- 
 ing orders had issued of which he would be unable to obtain any data
 
 24 PENDING BILLS FOE KEGULATING INJUNCTIONS. 
 
 or record. That sounds a little strange to those familiar with the 
 essentials of proper and regular court procedure. But those at any 
 rate who know the reckless and oppressive uses of injunctions in 
 labor disputes are not surprised. It often happens that they get a 
 drastic order or injunction and then, after it has done its deadly 
 work, it disappears. 
 
 Mr. Monaghan thought he could at any rate produce a certain 
 number of recorols; and in response to the urgent request of the 
 committee, promised to produce 34 at least. He produced and 
 placed in the record just 3 complaints, and restraining orders and 
 injunctions, both, to the number of 15. It is fair to assume that 
 he did not discriminate against his clients or himself in making 
 the selections. Although those he was unable to locate and pro- 
 duce may be worse than those he has placed in the record, I do not 
 care to see them. These are bad enough. Those produced bear 
 internal evidence of having been prepared by competent and pains- 
 taking lawyers in Cincinnati seeking to make the best possible show- 
 ing with such materials in the way of facts as were available. And 
 yet how utterly lacking in essential allegations as a basis for the 
 exercise of equitable jurisdiction through the extraordinary strong- 
 arm process of injunction. First we have the complaint in the 
 Greenwald Co. case, upon which an injunction was granted by a 
 judge of the Supreme Court at Cincinnati. It recites, of course, that 
 the complainant has large capital, large business, and employs a large 
 number of men, allegations which are always deemed important by 
 counsel who prepare and judges who issue these writs. It impleads 
 three labor unions as defendants, and through that contrivance 
 drags in their members to the number of hundreds, perhaps thousands, 
 as parties to a complaint charging criminal conspiracy, most of 
 whom must have resided at a distance and have been utterly inno- 
 cent of knowledge of the acts charged, or even of the situation at 
 the scene of the dispute. 
 
 The nearest approach to a charge of trespass, hence the only 
 threatened injury to a property right, found in the complaint is 
 that the defendants selected and detailed " large numbers of persons 
 called pickets to constantly watch and beset the approach to plain- 
 tiff's foundry" without stating whether the congregating was in the 
 street or on private property with the owner's consent, whether it 
 was near the entrance or a mile away. But the real grievance, as is 
 plainly seen by reading the complaint, is the charge that the union 
 was on strike and their officers, associates, and confederates are all 
 combining and confederating together for the purpose of preventing 
 the employees of plaintiff who are desirous of working from contin- 
 uing in its employ, and also of preventing others from entering the 
 employment of plaintiff." It is not necessary to attempt to analyze 
 or to point out the weak features of the two other complaints one in 
 the United States Circuit Court for the Eastern District of Kentucky 
 and the other in the United States Circuit Court for the Southern 
 District of Ohio. They are open to the same criticisms, not differing 
 in essentials from that just noticed. Nor is it necessary to discuss 
 orders or injunctions issued on the complaints further than to speak 
 of their vagueness, comprehensiveness, and utter recklessness and 
 disregard for justice^ legal formalities, and private rights, of which 
 they contain conclusive proof.
 
 PENDING BILLS FOB REGULATING INJUNCTIONS. 25 
 
 I have also before me as part of the House hearings the complaint 
 in Hitchmaji Coal & Ooke Co. v. John Mitchell and others. This 
 complaint is exceedingly profuse, setting forth many transactions, 
 industrial conditions, and isolated facts of individuals in different 
 parts of the country, but falling far short of an injury to property or 
 property right, as n the pleader were describing the incidents of a 
 political campaign and its effect on business. This complaint is a 
 slight variation from the usual form in the matter of parties. In- 
 stead of making the half dozen large labor organizations parties 
 defendants, it seeks to bring in their memberships, whether within 
 the judicial district, in the Eastern or Western States, or in Alaska, 
 and to subject them to the order then and there made, by suing their 
 officers hi a representative capacity. This is merely a slight varia- 
 tion of the abuse of process and of fraudulent and bogus procedure. 
 The charges, as you would see if you examined the complaint, are of 
 acts and conduct forbidden by the order on the sole ground of their 
 unlawfulness. The legal mind can not conceive of such a thing as 
 proceeding by representation in such a case. It is a maxim of the 
 law that there can not be an agency created to violate the law, nor 
 any such thing as joint recovery against or joint li ability of tort- 
 feasors, nor can individuals be joined as parties defendant in such a 
 case unless they can be shown to have conspired together as such 
 or to have acted or to be acting in concert. But you will search in 
 vain through this complaint to find an allegation showing a coming 
 together 1 hi any act of illegality such as would either show concert of 
 action or anything upon which to proceed against them, except the 
 bare fact that those named were officers of labor organizations and 
 that the vast number not designated by any name were members of 
 such organizations. 
 
 The prayer simply asked, in minute detail, for restraint and pro- 
 hibition upon every act and proceeding conceivable or which could be 
 imagined tending toward success of the unionists in their attempt to 
 unionize the miners in that region and improve the deplorable con- 
 ditions there existing, and the order followed the prayer, with a few 
 extra dashes and colors. If obeyed according to its letter and spirit, 
 it completely stilled the tongues and paralyzed every activity of the 
 defendants and of their associates and sympathizers. No one reading 
 this record can fail to see that neither the corpus nor the possession of 
 property was endangered or threatened and that the sole purpose of 
 the proceeding was to exile from the district all not willing to renounce 
 their union connections and peacefully and submissively accept em- 
 ployment with the company on its own terms and conditions. 
 
 Such complaints and orders have common phases, features, and 
 purposes. The injury to property is seldom the thing sought to be 
 provided against, nor is the protection of property or property rights 
 the object in view. Organized strikers always respect property rights. 
 They seldom even disturb peaceful possession. The purpose of these 
 suits is the unfair use of a powerful weapon against labor's side in 
 these legitimate trade conflicts. 
 
 Kule 86 of the Supreme Court, placed in the Senate hearings at page 
 68, contains nothing in conflict with the provisions of this section, and 
 the two Supreme Court decisions which I have cited may be treated 
 as a proper construction of the rule.
 
 26 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 IRREGULARITIES IN BRINGING IN PARTIES DEFENDANTS. 
 
 t 
 
 I wish, now to point out in a more general way than heretofore the 
 evils which have resulted, and are likely to continue to result, in the 
 matter of parties defendants. Men have been hauled before courts 
 and fined and imprisoned for acts which, though within the terms of 
 an injunction, were not necessarily connected with the controversy 
 between the parties. 
 
 It is obvious that hi such a case the judge assumes jurisdiction to 
 try the party without indictment, information, or jury, himself the 
 sole judge of the party's guilt, and his will, sometimes his prejudice 
 or passion, the measure of punishment. It is also clear that such a 
 practice might be so extended that jury trials and the usual formali- 
 ties in criminal cases, always deemed essential to the preservation of 
 freedom, might be entirely eliminated, especially in times of strife 
 and excitement, and each judge of a court of equitable powers become 
 an absolute sovereign within his domain. 
 
 Much needless fear is exhibited by Mr. Hines, counsel for certain 
 railroads, because of the alleged difficulties of obtaining the names 
 of those who are to be enjoined and of procuring service upon them 
 where a railway strike occurs. His information with respect to the 
 mode of living of railway employees and their residential status 
 appears to be more limited than that of the average citizen having 
 no connection with railroad business. He grossly exaggerates the 
 difficulties and inconveniences of reaching and serving those whom 
 it is found or thought necessary to serve in case of the issuance of an 
 injunction or restraining order. The facts, as any railway employee 
 except, perhaps, Mr. Hines, knows are that the nature of the employ- 
 ment is such that permanency of residence is absolutely necessary in 
 the case of any employee whose employment is not merely temporary 
 and free from personal responsibility. Moreover, there can never be 
 the slightest difficulty in getting their names and addresses. It 
 would be shown by the pay rolls. Nor is there anything in the asser- 
 tion that the operations of a railway strike extend over an extensive 
 territory. Such is seldom the case, but even where that condition 
 exists the inconveniences of getting service are negligible. With 
 respect to such acts of vandalism as damaging engines and boilers 
 and separating the cards attached to freight cars, no injunction could 
 anticipate them, no matter how completely or promptly served. 
 
 Section 266c naturally divides itself into two separate and dis- 
 tinct propositions, contained in two paragraphs, the first of which 
 reads thus: 
 
 SEC. 266c. That no restraining order or injunction shall be granted by any court of 
 the United States, or a judge or judges thereof, in any case between an employer and 
 employees, or between employers and employee, or between employees, or between 
 persons employed and persons seeking employment, involving or growing out of a 
 dispute concerning terms or conditions of employment, unless necessary to prevent 
 irreparable injury or to a property right of the party making the application, for which 
 injury there is no adequate remedy at law, and such property or property right must 
 be described with particularity in the application, which must be in 'writing and 
 sworn to by the applicant or by his agent or attorney. 
 
 The words occurring therein ' ' between an employee and employers 
 or between employers and employees, or between 'persons employed 
 and persons seeking employment, involving or growing out o:* 
 pute concerning terms or conditions of employment" we 
 
 f a dis- 
 were con-
 
 PENDING BILLS FOB REGULATING INJUNCTIONS. 27 
 
 stantly called to the attention of the committee by counsel in oppo- 
 sition as a feature giving the bill the distinctive stamp *of class 
 legislation. 
 
 vVere it not for the discriminations between classes in exercising the 
 jurisdiction, this provision, like many others in the bill, might be 
 stricken out without great public detriment. The paragraph would 
 then state the law as it is uniformly administered between parties 
 where no labor dispute is involved. In many cases where employers 
 seek injunctions against laborers with whom they have a dispute the 
 language of this paragraph is turned around to read thus: 
 
 That restraining orders and injunctions may be freely granted by the cuorts of the 
 United States, or the judges thereof, in any case between employers and employees, 
 * involving or growing out of a dispute concerning terms or conditions of 
 employment, whether necessary or not to prevent irreparable injury to property or 
 a property right, the party making the application, being a business man, whether 
 or not the party has an adequate remedy at law. In such case no property or property 
 right need be particularly described or even mentioned in the application. 
 
 The first clause of this paragraph to which I shall direct special 
 attention reads thus: 
 
 Unless necessary to prevent irreparable injury to property or to a property right of 
 the party making the application, for which injury there is no adequate remedy at law. 
 
 I will call attention to High on Injunctions, fifth and latest edition, 
 section 20b, which is a new section, and to a long list of authorities 
 therein cited, old and new. He says: 
 
 Equity has no jurisdiction to restrain the commission of crimes or to enforce moral 
 obligations and the pt.i'ormance of moral duties, nor will it interfere for the prevention 
 of an illegal act merely because it is illegal; and in the absence of any injury to property 
 rights it will not lend its aid by injunction to restrain the violation of public or penal 
 statutes or the commission of immoral and illegal acts. 
 
 Speaking of the remedy by injunction, Pomeroy says: 
 
 It is necessary to show irreparable injury to a substantial property right, and if such 
 injury is not clearly made out, relief will be refused. (Pomeroy Eq. Juris., vol. 5, 
 sec. 323.) 
 
 As equity deals with property rights alone, an injunction will not issue to restrain 
 political acts of public officers. (Pomeroy Eq. Juris., vol. 5, sec. 324.) 
 
 Having shown by these authorities that equity protects property 
 and property rights only, the next proposition is that "Business is not 
 property or a property right." Authorities: E. & A. Encyclo. L., p. 
 59; E. & A. Encyclo. L.,p. 251 ; Bouvier's L. Diet., title "Property'' ; 
 Black's L. Diet., title "Business"; Schuback v. McDonald, 65 L. R. 
 A., 136; Worthington v. Waring, 157 Mass., 421. 
 
 Legally speaking, what is property ? What is a property right ? I 
 will first discuss the property right. It is a right essentially connected 
 with property, and I emphasize these words entirely dependent upon 
 the ownership legally or equitably of property. Such being the 
 essential characteristic, there is no real difference between property 
 and the property right. Whoever owns the right owns the property, 
 legally or equitably. 
 
 In the English and American Encyclopedia of Law, at page 59, we 
 find this definition of property: 
 
 Property means that dominion of indefinite right of user and disposition which one 
 may lawfully exercise over particular things or subjects, and generally to the exclu- 
 sion of all others. Property is ownership^, the exclusive right of any person freely to 
 use and enjoy and dispose of any determinate object, whether real or personal.
 
 28 PENDING BILLS FOB REGULATING INJUNCTIONS. 
 
 From Bouvier's Law Dictionary (latest edition) I read the following 
 definition of property: 
 
 The sole and despotic dominion which one man claims and exercises over the 
 external things of the world in total exclusion of the right of any other individual 
 in the universe. The right to possess, use, enjoy, and dispose of a* thing. 
 
 On page 261 of the English and American Encyclopedia we find 
 this definition of the property right: 
 
 In its proper use the term "property right" applies only to the rights of the owner 
 in the things possessed. 
 
 Now, let's ascertain how business is defined and we shall see that 
 it does not come within either of these definitions. 
 Black's Law Dictionary : 
 
 * * * A matter or affair that engages a person's attention or requires his care; 
 an affair receiving or requiring attention; specifically, that which busies or occupies 
 one's time, attention, and labor as his chief concern; that which one does for a live- 
 lihood; occupation; employment; as "his business was that of a merchant"; to carry 
 on the business of agriculture. 
 
 That which is undertaken as a duty or of chief importance, or is set up as a prin- 
 cipal purpose or aim. For instance, "the business of my life is now to pray for you." 
 (Fletcher, Loyal Subject IV, 1.) 
 
 Black, -Anderson, Bouvier, Century, and Webster, all the lexi- 
 cographers, agree in their definitions of property and business. 
 
 Business is of innumerable forms. It may be incident to the 
 ownership or use of property or entirely foreign to such use and 
 ownership. It is the business of the naturalist to travel and investi- 
 gate. What I am now doing and what the members of this com- 
 mittee are doing is business, just as much as what any employer of 
 labor is doing or has been doing. 
 
 All of any employing corporation's property, including its good will, 
 its assets, is the product of labor, rart of that labor and not part 
 of that property is the doing of business. 
 
 One element of all the definitions of property is that it may be 
 disposed of; that is to say, it is assignable. The only exception is 
 in the case of what is known as a pure equity. One's business has 
 no quality of an equity, and so that need not be considered. Hence, 
 lacking the essential element of assignability, it is neither property 
 nor a property right. It is an indeterminate natural and personal 
 right. If a man die, all his property, including the good will, if 
 any, created by exercising the rights to labor that is to say, by 
 exercising the rights to do business is distributed to his next of kin 
 or devisees. But his business ends. It is gone forever. This applies 
 to men of all conditions and classes. Within the legal definitions 
 there is hardly a man in the world without a business. Even if a 
 man be sick and bedridden, he has as his chief concern to get well 
 if he can. 
 
 The reasoning in boycott cases is the same as in strike cases. For 
 the same reasons that an employer has no vested or property interest 
 in his employees or ip their capacity to serve him, a dealer has none 
 in his customers. 
 
 Now, let us take any boycott case before a court for an illustration 
 of my argument. Nobody is threatening to injure the plant or other 
 real property of plaintiff. What is left as property or as a property 
 right to support the action for an injunction ? Merely that imaginary 
 thmg the plaintiff's business.
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 29 
 
 Now, I undertake to demonstrate, as a legal proposition, that busi- 
 ness is a mere abstraction and" is not and can not be proved or argued 
 into the legal meaning of property or property right by any amount 
 of proof or argument. 
 
 I have sought in the opinions of judges a good expression of my 
 idea, and found it in Schubach v. McDonald (a Missouri case reported 
 in 65 L. R. A., p. 136), where the court, speaking of the right which 
 can be made the oasis for an injunction, said : 
 
 The abstract right must assume a concrete form before it became property in the 
 judicial sense, capable of judicial protection. 
 
 If "business" be not property, much less is the abstract right 
 designated as "the right to do business." The right to do business 
 clearly belongs hi the class of personal rights; for instance, with one's 
 right to practice law, his right to travel. A complainant's business 
 and right to do business are as unsubstantial and purely ideal and 
 personal as that of a metal polisher or foundryman to seek and obtain 
 employment. 
 
 As the question of judicial interference in disputes between lab or and 
 capital has never been discussed in any of the cases with any special 
 reference to this point, and as judicial views as well as the decisions, 
 are in conflict, I desire to illustrate this point, and I will begin with a 
 truism and a maxim. My truism is that each man is the equal of 
 every other man before the law. My maxim is that "Equity delight- 
 eth in equality." Now, for the illustration. Here is a man; we will 
 say his name is Smith. He enters the employ (as a polisher) of 
 Mr. Jones, who was the proprietor 30 years ago of a stove factory. 
 By entering such employment he becomes a business man as well as 
 an employee. He is engaged in a business pursuit. He is not 
 engaged in philanthropic work, but business. Polishing stoves is his 
 business. In other words, he is exercising the right to do business. 
 He has police protection against personal annoyance. Would anyone 
 be so absurd as to contend that he could protect by injunction his bare 
 right to polish stoves; that is, his right to accept employment and 
 perform the duties of a stove polisher ? He receives his compensation 
 m definite stated sums at stated periods. There is Mr. Jones, his 
 employer. He stands in the place of the corporation, subsequently 
 succeeding Mr. Jones in business, and the illustration holds good. 
 Mr. Jones works at the same establishment, but mostly with his brains. 
 He gets his pay in the form of profits when there are any. His pay is 
 uncertain and somewhat speculative as to its amount, but that is 
 whoUy immaterial. As to all his tangible property, real and personal, 
 and as to all his property rights, sucn as choses in action and incor- 
 poreal hereditaments, he may in a proper case be protected by injunc- 
 tion, but not as to his personal right to do business. 
 
 We will suppose that Mr. Jones dies and the corporation takes his 
 place as proprietor and takes over the business. It of course suc- 
 ceeds to no greater personal right to do business than its predecessor 
 enjoyed or that any other business man enjoys. Mr. Brown becomes 
 president and continues devoting labor to the business. He is as 
 much entitled to in junction to protect his employment as Smith, the 
 polisher, to protect his job, or as the corporation to protect its busi- 
 ness; that is to say, the corporation has no such right. 
 
 The magnitude of the corporation's business cuts no figure. It is 
 in no better position than a match peddler in this respect.
 
 30 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 Suppose now that Smith that's the polisher, the employee 
 hears that the corporation intends to discharge him and files a bill to 
 enjoin it. The corporation's managers would be utterly astounded, 
 as well they might be. And yet that corporation has no more a 
 vested or property right in that abstract thing called business than 
 the workingman has in the use of his hands and faculties. Now, 
 urely it will not be contended that the courts can discriminate in this 
 matter or that any chancellor could establish what we term discrimi- 
 nating, or, to use a vulgar phrase, "jug-handled," equity. 
 
 At the Fifty-ninth Congress the question of good will and the 
 mooted question of its connection with the right to do business, 
 again brought up before the Senate committee, was brought up and 
 met by me, I think, fully; and any member of this committee will 
 be furnished with a copy of my argument in answer to Mr. Daven- 
 port on that subject. At the close of the Fifty-ninth Congress I 
 presented and filed a reply to a report to a subcommittee which 
 brought up that proposition, and I went into it still more elabo- 
 rately. A copy of that can be obtained by any member of this 
 committee, and I will take special pains to see that any member of 
 the committee that wants it gets a copy. The opposition to the 
 bill have seemed to acknowledge their error in confounding good 
 will and business after hearing the distinction clearly pointed out, 
 as it was by me, both at the hearing in the fifty-ninth" session and in 
 my reply to the report of the subcommittee filed at the same session. 
 At any rate, they nave ceased to harp on it. 
 
 Good will and business are clearly distinguishable. It often 
 requires some legal acumen to distinguish between things which are 
 similar and yet not identical. But there should be none here. Our 
 conceptions of the difference between good will and business ought 
 to be clear. 
 
 Permit me to call attention to a fact which ought alone to remove 
 good will from the domain of discussion. No case of injunction 
 growing out of a labor dispute can be found in which the good will 
 was ever referred to, and, indeed, it is impossible to conceive of an 
 attack being directed against the good will by the disputants on 
 either side of such a controversy. 
 
 Good will as property is produced in the same way that any other 
 property is produced; that is, by labor, by exercising the right to 
 do business. 
 
 In fact, the good will is a mere fiction as property, and under the 
 modern regime of trade-marks and trade names and registry laws for 
 these the good will never alone becomes the subject of litigation. 
 The trade name covers the good will and is practically the only evi- 
 dence of its existence. There can not, in the nature of the case, be am r 
 infringement of the property right in good will separate and distinct 
 from infringement of the trade name. Infringement can only consist 
 in duplication or simulation. It is enjoined because it is a fraud upon 
 the public as well as upon the owner of the trade name. An infringe- 
 ment is never involved in a dispute between employers and employees 
 nor in any matter involving, relating to, or growing out of a labor 
 dispute. 
 
 The good will, after its creation, through the exercise of the right 
 to do business, being property, may be sold or inherited after the 
 business is terminated. For illustration, I could cite the case of a
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 31 
 
 large publishing house in New York which, after a long and successful 
 career, failed in business, its failure having resulted mainly from dis- 
 agreements with its employees; but the most valuable asset of the 
 insolvent after its doors were closed was its good will, and that was 
 sold to a new companv for a large sum. 
 
 In Worthington v. Waring (157 Mass., 421) we have a case whose 
 principle and language is a statement in a slightly different form 
 from that I have been using. The facts appear in the part of the 
 opinion I am about to read: 
 
 We take the substance of the petition to be that the petitioners were weavers by 
 trade and had been employed by the Narragansett Mills, a corporation in Fall River, 
 and that they demanded higher wages, which the corporation refused to give; and they 
 then left work, and th'e defendants sent their names to- the officers of other mills in 
 Fall River, on a list which is called a "black list," and which informed these officers 
 that the petitioners had left the Narragansett Mills on what is called a "strike"; 
 whereupon the defendants conspired together and with the officers of other mills, and 
 agreed not to employ the petitioners, with intent to compel them either to go without 
 work in Fall River or to go back to work for the Narragansett Mills at such wages as 
 that corporation should see fit to pay them. It does not appear by the petition that 
 any of the petitioners had existing contracts for labor with which the defendants 
 interfered. If the petition sets forth such a conspiracy as constitutes a misdemeanor 
 at common law on which we express no opinion the remedy is by indictment. 
 If the injury which had been received by the petitioners at the time the petition was 
 filed constitutes a cause of action on which we express no opinion the remedy is 
 by an action of tort, to be brought by each petitioner separately. 
 
 The only grievance alleged, which is continuing in its nature, is the conspiracy not 
 to employ the petitioners, and there are no approved precedents in equity for enjoin- 
 ing the defendants from continuing the defendants either to employ the petitioners 
 or to procure employment for them with other persons. (See Workman ?>. Smith, 155 
 Mass., 92; CarletonV Rugg, Mass., 550, 5 L. R. A., 193; Smith v. Smith, 148 Mass., 
 1; Raymond v. Russell, 143 Mass., 295, 58 Am. Rep., 137; Boston Diatite Co. v. Flor- 
 ence Mfg. Co., 114 Mass., 69, 19 Am. Rep., 310.) It is plain, however, that the peti- 
 tion was drawn with a view to obtain some equitable relief. It is well known that 
 equity has, in general, no jurisdiction to restrain the commission of crime or to assess 
 damages for torts already committed. Courts of equity often protect property from 
 threatened injury when* the rights of property are equitable or when, although the 
 rights are legal, the civil and criminal remedies at common law are not adequate; 
 but the rights which the petitioners allege the defendants were violating at the tune 
 the petition was filed are personal rights as distinguished from rights of property. 
 
 Since we have here become so accustomed to the use of the word 
 boycott, I beg leave to submit that here was an instance of a boy- 
 cott one of the most vicious and reprehensible imaginable only 
 it was called a black list. 
 
 In the Debs case it was not held that a court could, without property 
 right as a basis, enjoin a body of strikers. On the contrary, it was 
 clearly recognized that a basis of property right was essential. In 
 that case (158 U. S. P., 583) the court said: 
 
 It is said that equity only interferes for the protection of property and that the Gov- 
 ernment has no property interest. A sufficient reply is that the United States have 
 a property in the mails, 'the protection of which was one of the purposes of this bill. 
 
 And the court proceeds to discuss such property in the mails, citing 
 cases. 
 
 All such cases as the Debs case, all obstructions of railway trans- 
 portation, can be enjoined by the Government if this bill should pass 
 as before. (See Debs case, 158 U. S., 587, and cases cited.) In- 
 junctions will issue in such cases as heretofore, not only to protect 
 property, but because such obstructions constitute public nuisances.
 
 32 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 In the memorandum of authorities placed in the record by Mr. 
 Hines we find an extract from section 20 of High on Injunctions, 
 reading thus: 
 
 The subject matter of the jurisdiction of equity being the protection of private 
 property and of civil rights, courts of equity will not interfere for the punishment or 
 prevention of merely criminal or immoral acts unconnected with violations of private 
 rights. 
 
 This was produced to give a color of justification to the use of 
 injunctions in labor disputes for the assertion and enforcement of such 
 personal rights as that of doing or continuing business, inasmuch as 
 they belong to the class designated "civil rights." But if the whole 
 of that section 20 were inserted it would clearly appear from the 
 context that the purpose of using the words "civil rights" was to 
 exclude from the category of acts which might be enjoined those 
 rights which are infringed by criminal violations of the law. This is 
 also shown by section 20b of the same authority, as before quoted 
 by me. 
 
 It has been often remarked that liars should have good memories. 
 This does not, of course, refer to the counsel in opposition to the bill, 
 because from the nature of their employment they must be regarded 
 and treated as eminently respectable members of the bar. But they 
 appear unable to avoid occasional lapses of memory in recitals of 
 then' respective parts in the farce of killing time before committees 
 and during those lapses inadvertently admit the fundamental limi- 
 tation of equitable jurisdiction to property rights. As instances in 
 point, I quote the following: 
 
 Mr. MONAGHAN (p. 87). Under and by virtue of the Constitution of the United 
 States no citizen can be deprived of life, liberty, or properly without due process of 
 
 of a restraining order to the end that his property may be preserved. The denial of 
 this right is a denial of due process of law. 
 
 Mr. DAVENPORT (pp. 22, 23, pt. 3). Under the decision of the United States in this 
 Adair case, and supported by a very large number of decisions everywhere, those 
 things that in the Pearre bill were sought to be declared not to be property rights 
 are property rights, and would be covered by the first clause of this bill. But the 
 bill goes on, then, "to say that a certain class of acts attacking your property shall 
 not be enjoined against, and this is the way it reads. 
 
 Senator SUTHERLAND. May I interrupt you again? I had understood I do not 
 know where I saw it or where I heard it that it had been claimed that the provision 
 in this bill now pending, with reference to property rights, would not include the 
 right to do business. I wondered what the foundation of that was. 
 
 Mr. DAVENPORT. In construing this bill I suppose the courts would say that what the 
 courts have said time out of mind are property rights would be covered by that first 
 section, and that when it says that unless to prevent irreparable injury to property 
 or to a property right whatever fell within that definition of property would be cov- 
 ered by the terms. 
 
 Senator ROOT. You dp not find anything in this language, do you, which under- 
 takes to change the law in that respect? 
 
 Mr. DAVENPORT. Not in that respect. 
 
 Mr. HINES (pp. 30, 31). Limitation to property rights seem designed to exclude 
 remedies to protect the person and to protect personal freedom, although those rem- 
 edies are particularly necessary in labor disputes. 
 
 The limitations absolutely to property or to property rights seems to narrow, at 
 least somewhat, the basis for equitable intervention. Pomeroy, in the sixth volume 
 of his work on equity, page 579, seems to recognize that equity will intervene to 
 protect the right of personal freedom of a man to come to and from his work and puts 
 the intervention on the ground of protecting that element of personal freedom. We 
 find in other cases the general statement that while equity jurisdiction will not be
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 33 
 
 exercised for the enforcement of criminal law, yet it may be exercised for the pro- 
 tection of civil rights. It is true generally, and perhaps it is particularly true in 
 the case of a railway company, that it will always be possible to demonstrate the 
 existence of a property right; but nevertheless, if the general doctrine of equitable 
 intervention is somewhat broader than that, it seems particularly unwise to put 
 this limitation here, where undoubtedly one of the things which is most infringed is 
 the right of personal liberty. 
 
 The CHAIRMAN. Would that term include the mere right to do business; for exam- 
 ple, where a man "has a stock of goods, the goods themselves not being interfered 
 with? Could you say that the right of that man to continue his business and dispose 
 of his goods was a property right? 
 
 Mr. HINES. I should say it would be an open question in the construction of this 
 section. Undoubtedly he has a right equity ought to protect, and this section would 
 seem to make it a question whether it is such a right that equity would protect in the 
 labor disputes. The point I urge is, in view of the doubt that is cast upon the extent 
 of the foundation of equitable interference in these cases, that the provision ought to 
 be omitted, because if there is any class of cases where equity ever goes beyond these 
 bare property rights, certainly this is the class of cases where it ought to do that thing, 
 because the things that are 'involved here are so largely matters of liberty and so 
 
 largely matters of protection of the persons of individuals who ought to be regarded as 
 entitled to equitable protection when no other remedy is available. 
 
 Mr. DILLARD (pp. 8 and 9, pt. 3). I trust it will not be extended; I hope it will not 
 be. I desire to call attention to the fact, however, in passing, and in doing so to say 
 this: The purpose of the injunction sought is, we will say, for the preservation of 
 property. This being true, if it appears to the judge by a preponderance of the evi- 
 dence that irreparable injury is likely to result, that property is likely to be destroyed, 
 then it would seem to me sufficient foundation has been laid for the issuance of the 
 injunction. 
 
 Senator 0' GORMAN. I have always understood that to be the accepted rule in all 
 jurisdictions, and the case you speak of seems to be the exception. 
 
 Mr. DILLARD. I am sure the rule as I stated it has been held in several jurisdictions. 
 
 Counsel in opposition are utterly destitute of English authority for 
 their extraordinary, contention that injunction can properly issue to 
 protect the mere right to do business and other personal rights. 
 There are none, and consequently none are produced. But in an 
 effort to make plausible an objection against a point of practice 
 covered by a provision in the bill they bring forward two decisions 
 of the Supreme Court establishing one of the most important propo- 
 sitions for which labor has ever contended, namely, that nothing has 
 been added to the jurisdiction in equity since the adoption of the 
 Constitution. 
 
 Mr. Monaghan quoted from Pennsylvania v. Wheeling Bridge Co. 
 (13 Hows., 563) as follows: 
 
 In exercising this jurisdiction the courts of the Union are not Umited by the chan- 
 cery system adopted by any State, and they exercise their functions in a State where 
 no court of chancery has been established. The usages of the high court of chancery 
 in England, whenever the jurisdiction is exercised, govern the proceedings. This 
 may be said to be the common law of chancery, and since the organization of the 
 Government it has been observed. 
 
 Mr. Herrod quotes the same doctrine from the Debs case (158 
 U. S., 564) and cites Mississippi, Mills v. Cohn (150 U. S., 202). 
 
 ERRONEOUS DECISIONS HAVE ORIGINATED BY LOSING SIGHT OF FUNDA- 
 MENTAL PRINCIPLES. 
 
 I cite: Kidd v. Horry, 28 Fed. K., 774; Arthur v. Oakcs, 63 Fed. R., 
 310; Nat. Protect. Assn. v. Cumming, 170 N. Y., 315; 58 L. R. A., 
 135. 
 
 It will be found upon close scrutiny of the cases that in many of 
 the State cases where injunctions were issued in labor cases the juris- 
 57039" 12 3
 
 34 PENDING BILLS FOB REGULATING IN JT NOTIONS. 
 
 diction was acquired under statutes expressly conferring the juris- 
 diction and that they found sanction in the decisions of the English 
 courts, which was likewise conferred by statute. And the Federal 
 judges in, I dare say, the most of the cases overlooked this fact and 
 based their decisions on precedents which, if they had been closely 
 scrutinized, would have been found not authoritative. 
 
 Attention is also called to this by Mr. Justice Bradley, presiding at 
 circuit in Kidd v. Horry (28 Fed. R., 774). 
 
 The English statute, after which some of the State statutes are 
 patterned, reads in part as follows: 
 
 In all breaches of contract or other injury, where the party injured is entitled to 
 maintain and has brought an action, he may claim a writ of injunction against the 
 repetition or continuance of such breach of contract or injury, etc. 
 
 In part, Justice Bradley said in Kidd v. Horry: 
 
 As the high court of justice established by the judicature act of 1873 was an amal- 
 gamation of all the courts of original jurisdiction of Westminster Hall, including the 
 court of chancery, which became merely one of the divisions of the high court, it fol- 
 lows that the court of chancery became invested with the jurisdiction which was 
 given to the common-law courts by the common-law procedure act of 1854, and hence 
 became invested with the power to grant injunctions to prevent the continuance or 
 repetition of an injury which was actionable in any court, and for which an action 
 was brought, although the power to grant injunction in cases of libel was resisted, in 
 several instances, by very nigh authority; as in the case of Prudential Assur. Co. 
 v. Knott (10 Ch. App., 142), by Lord Chancellor Cairns and Lord Justice James, and 
 in that of Bcddow v. Beddow"(9 Ch. Div., 89), by Sir George Jessel. The practice 
 of issuing such injunctions, howeyer, finally prevailed. 
 
 This statute law of Great Britain is sufficient to account for the English cases relied 
 on by the complainant, and is undoubtedly the basis on which they really stand. 
 
 The error in the first of these decisions occurred in the same way 
 that most erroneous decisions are given; that is, by overlooking fun- 
 damental principle and failing to reexamine the ancient and well- 
 established boundaries of the jurisdiction. If we go back to the 
 period of the struggle between the law and chancery courts, we find 
 the limitation of equity in injunction cases to property and property 
 rights often referred to and discussed. 
 
 Subsequently it was so well understood that it was deemed neces- 
 sary to only occasionally refer to it. Bulwarks of erroneous deci- 
 sions have been erected on other subjects, to be subsequently demol- 
 ished. Some isolated erroneous decision was tamely and blindly 
 followed as a precedent, without investigation as to whether it was 
 sustained by principle or not, the supposed exigency or hardship of 
 a case before the court being elaborated and the 'precedent being 
 accepted as binding, or if not binding, at least strongly persuasive. 
 
 Next we have the requirement added to the foregoing provision 
 that the restraining order or injunction shall not be granted unless 
 the property or property right be described in the complaint or appli- 
 cation "with particularity." Much error and abuse in labor cases 
 are due to defects and shortcomings of complaints upon which re- 
 straining orders and injunctions are granted at the outset. I deduce 
 three causes, any one of which, or all together, may operate to bring 
 about the miscarriage of justice seen in each instance. These are, 
 first, an insufficient complaint; second, a mistaken view of duty 
 as a matter of law; third, an unfortunate environment preventing a 
 comprehensive view of the rights of citizenship, or a false conception 
 of the relation between capital and labor. But I discuss now only the 
 insufficiency of complaints.
 
 PENDING BILLS FOE EEGULATING INJUNCTIONS. 35 
 
 I may safely assert, as a general proposition to which, if there be 
 an exception, I have not seen it, that on two essential facts in all the 
 cases the complaints are insufficiently specific to warrant the grant- 
 ing of the relief prayed. The complaints do not show (1) specifically 
 that any property or property right is menaced with injury, or (2) 
 in what way or by what means an irreparable injury would result if 
 the alleged threatened act were done. 
 
 INSUFFICIENT DESCRIPTION OF PROPERTY RIGHT. 
 
 I need not here make any such point as that the right to carry on 
 business is not property. For present purposes that is to say, in this 
 immediate connection that is waived. But I make the point that 
 the allegations in the complaints with reference to property and 
 property rights are insufficiently specific. 
 
 In Hitchman Coal & Coke Co. v. Mitchell (172 Fed. Rep., 963), in 
 which one of the restraining orders already noticed was granted by 
 Judge Dayton, taking that as fairly representative, the complaint 
 recited that the complainant owned valuable coal mines, mining 
 machinery, etc., that it had large capital invested, that its operations 
 were extensive and its sales large. Figures of aggregates were given 
 in connection with some of the recitals and there was a general asser- 
 tion of damages. No interruption of its operations was alleged up 
 to the date of fifing the complaint, nor any shown to be imminent. 
 Whether, therefore, any property or property right was involved at 
 all in what the defendants were alleged to be doing was left to infer- 
 ence and conjecture. 
 
 DEFECTIVE ALLEGATIONS OF IRREPARABLE INTURY. 
 
 But the complaint fell stiU further short of the legal requirement 
 that irreparable injury must be specifically alleged. Nothing is 
 better understood, as the authorities used in the report from the 
 House committee show, than that a mere general allegation ot irre- 
 parable injury is not sufficient. And yet that is all that the com- 
 plaint in trie Hitchman case contained. 
 
 The complaint asserted, as also in the case of Adams v. Typothetae 
 of America, brought in the District of Columbia, that the strikers 
 were under contract, which, by striking, they were violating; but it 
 will be borne in mind that a long line of decisions, among which 
 is Arthur v. Oakes, has settled the rule that courts have no power to 
 forbid men to strike merely because of their being under contract 
 to serve for a term which has not expired, and any other rule would 
 violate the constitutional amendment against slavery and involun- 
 tary servitude. 
 
 And there is another reason recognized in all other cases, but too 
 often ignored in strike cases, namely, that a violated contract is 
 compensable and hence reparable in damages. But there is ordi- 
 narily, in fact, no damage or injury whatever in strike cases, because 
 the injury actually suffered is such as was designated in National 
 Fireproofing Co. v. Mason Builders' Association and other cases, as 
 damnum absque injuria; that is to say, injury- suffered by a party by 
 action of another in the exercise of a lawful right. 
 
 The complaint in the Hitchman case, like those in many others 
 examined by me, was, notwithstanding its glaring defects, exceed-
 
 36 PENDING BILLS FOE EEGULATING INJUNCTIONS. 
 
 ingly verbos^ and voluminous, as if to make up in quantity what it 
 lacked in quality. But it and the others contained the defects above 
 noted and others as well. 
 
 To take up even one of these cases, analyze the pleadings, and apply 
 the law to the many and complicated facts, and then present the 
 arguments necessary to overthrow the fallacies of counsel and subtle 
 errors which have crept into the decision of the court, would bs a 
 serious and stupendous undertaking. The fact is not to be over- 
 looked that the wealth of the complainants hi these cases enable them 
 to employ the ablest counsel, to produce witnesses without limit, and 
 to make extensive preparation precedent to sending out the thunder- 
 bolt in injunctive form; also that strikers have not the advantages 
 and facilities just mentioned at hand to meet such a situation. There 
 is always present the most important fact of all that whether an 
 injunction be issued rightfully or wrongfully, it usually does its fatal 
 work, paralyzes the defendants, and ties the hands of their leaders, 
 before even such presentation as they could make is heard. 
 
 Hence the importance of the establishment of correct rales to 
 govern the courts, the same to be in force before the injunction or 
 restraining order issues; hence also the importance and justification of 
 the prohibitions contained hi the second clause of section 266c. 
 
 IMPORTING A NEW ELEMENT INTO STRIKE CASES. 
 
 Of recent years counsel for employing corporations became con- 
 scious that, without the importation of a new theory or doctrine into 
 the law, most of the applications for injunctions in strike cases must 
 be denied, upon well settled principles. Hence they imported the 
 element of motive, and made a distinction founded upon the purpose 
 or incentives with which a strike was instituted. They undertook to 
 analyze the feelings at work in the bosoms of the strikers. 
 
 It must be apparent to ah 1 fair-minded and thoughtful members 
 of the legal profession that where the thing done is itself lawful the 
 motive with which it is done or undertaken is unimportant, and that 
 to allow courts of equity to sit in judgment upon the question of 
 mental attitude in such cases is to completely unsettle all the law 
 governing them and set up the chancellor in the midst of the labor 
 organization at the inception of a strike as an arbiter of their con- 
 duct as well as a controller of their fates. It is not difficult to foresee 
 the utter disruption and dispersion of labor organizations and com- 
 plete failure of ail efforts of workingmen, through organization and 
 association, to improve conditions if the attitude toward them thus 
 assumed by the courts be maintained and no relief he afforded by 
 legislation. It is exceedingly difficult to see or even to admit any 
 consistency or possibility of a reconciliation between the -views of 
 those who stand for such a doctrine and their professions of a belief 
 in the right of wage earners to freely assemble, to discuss without 
 restraint those business and social matters which vitally concern 
 them, to form and maintain an organization ; in short, to exercise in 
 a collective or organized capacity any rights except such as are 
 purely academic and consistent with subjection to ^uch industrial 
 conditions as employers choose to impose upon them, however 
 tyrannical, miserable, and inhumane.
 
 PENDING BILLS FOB REGULATING INJUNCTIONS. 37 
 
 If the Federal judges, sometimes overawed by the presence before 
 them as litigants of financial magnates and powerful interests, and 
 often unduly impressed with the importance of large property in- 
 terests and the promotion of commercial prosperity as against the 
 lesser interests of labor, are to pass upon the motives or moral in- 
 centives instigating labor's side in a labor dispute, then every word 
 and act at their assemblages and meetings are proper subjects for 
 investigation and scrutiny, such, and only such, allowance to be 
 made for human frailty, excitement, passion, and bias of self-inter- 
 est as the judge sees fit to make. Under such a dispensation what 
 becomes of the constitutional guaranty of free assemblage, freedom 
 of movement, and free speech ? What becomes of the prohibition 
 against involuntary servitude embodied in the thirteenth amend- 
 ment, so eloquently expounded in Robinson v. Baldwin (165 U. S., 
 292), and more recently in Arthur v. Oakes (63 Fed. R., 310) ? 
 
 Could any more complete and despotic one-man power over or- 
 ganized labor be conceivable than will result if this new absolutism 
 be not stayed ? It was first evolved and enforced by Judge Taft in 
 Mopres v. Bricklayers' Union (10 Ohio Dec., 165; 23 Ohio L. J., 48), 
 while he served as a judge of the superior court at Cincinnati, and 
 was followed up in similar cases decided by him while on the Federal 
 bench. 
 
 The language of Judge Xoyes in National Fireproofing Co. v. Mason 
 Bricklayers' Association (145 Fed. R., 260) is the mildest and most 
 reasonable statement of that false doctrine that we have found. And 
 yet it is not difficult to see that if the question of whether, in deciding 
 to strike, the men are influenced by good or bad motives, is to be 
 judicially injected into a case, it means the trial in each instance of 
 an issue of reasonableness or unreasonableness of their demands upon 
 the employer and gives the court an almost unlimited discretion. 
 Especially is this so since there is no jury trial in such cases, they 
 being treated as of purely equitable cognizance. 
 
 Another and more recent application of this device for dealing with 
 strikers is found in Paine Lumber Co. v. Xeal, in which an injunction 
 was issued in the southern district of Xew York in October, 1911, but 
 not yet reported. But there have been many such subsequently to 
 Moores v. Bricklayers' Union. I can not discuss them with any 
 attention to details, although some account of them can be found in 
 the hearings before the House Judiciary Committee, especially those 
 the Fifty-ninth and the present Congresses. 
 
 It is well, however, to state and to show that the new element above 
 discussed has not been admitted into such cases without differences 
 among the judiciary and a consequent conflict of authority. While 
 the tendency to accept it as settled law is clearly eA'inced in a few Fed- 
 eral decisions, a respectable number, if not a majority, of the State 
 courts of last resort which have spoken have rejected it. 
 
 Xow, let us carry along in adverting to a few State cases what 
 Justice Bradley said in Kidd v. Horry, already cited, and remember 
 that if I have a legal right to do an act my motives are absolutely 
 immaterial. 
 
 In McCawley Bros. v. Tierney (19 R. I., 255) the court said: 
 
 To maintain a bill on the ground of conspiracy, it is necessary that it should appear 
 that the object relied on as the basis of the conspiracy or the means used in accom- 
 plishing it were unlawful. What a person may lawfully do a number of persons may
 
 38 PENDING BILLS FOR EEGULATING INJUNCTIONS. 
 
 unite with him in doing without rendering themselves liable to the charge of con- 
 spiracy, provided the means employed be not unlawful. 
 
 In Clemmitt v. Watson (14 _lnd. App., 38) the court, in passing 
 upon the conduct of the defendants in a strike case, said: 
 
 What each one could rightfully do, certainly all could do if they so desired, espe- 
 cially when their concerted action was taken peaceably, without any threats, violence, 
 or attempt at intimidation. 
 
 Chief Justice Parker, speaking for the court of appeals in National 
 Protective Association v. Gumming (170 N. Y., 315), said: 
 
 Whatever one man may do alone he may do in combination with others, provided 
 they have no unlawful object in view. Mere numbers do not ordinarily affect the 
 quality of an act. 
 
 In Vegelahn v. Guntner (167 Mass., 92) Justice Holmes, now of the 
 Supreme Court, but then a member of the Supreme Judicial Court of 
 Massachusetts, hi a dissenting opinion, said: 
 
 But there is a notion, which lately has been insisted upon a good deal, that a com- 
 bination of persons to do what any one of them lawfully might do by himself will 
 make the otherwise lawful conduct unlawful. It would be rash to say that some as 
 yet unformulated truth may not be hidden under this proposition. But in the general 
 form in which it has been presented and accepted by many courts I think it plainly 
 untrue, both on authority and on principle. 
 
 In Lindsay & Co. v. Montana Federation of Labor (37 Mont., 273) 
 the Supreme Court of Nebraska said: 
 
 But there can be found running through our legal literature many remarkable 
 statements that an act perfectly lawful when done by one person becomes, by some 
 sort of legerdemain, criminal when done by two or more persons acting in concert, 
 and this upon the theory that the concerted action amounts to a conspiracy: but 
 with this doctrine we do not agree. If an individual is clothed with a right when act- 
 ing alone, he does not lose such right meiely by acting with others, each of whom 
 ia clothed with the same right. If the act done is lawful, the combination of several 
 persons to commit it does not render it unlawful. In other words, the mere combi- 
 nation of action is not an element which gives character to the act. 
 
 A review of judicial history bearing on the question immediately 
 under consideration discloses that this modern doctrine of the Federal 
 courts and some of the State courts is a resurrection, to meet the sup- 
 posed necessities of particular cases, of an ancient English decision 
 holding that the preconcerted refusal of certain workingmen to con- 
 tinue their employment, even though an advance of wages was their 
 object, constituted a criminal conspiracy, which was an indictable 
 offense at common law, although the same act done by only one indi- 
 vidual would not have been unlawful. (See Rex v. Journeymen Tai- 
 lors, 8 Mod., 11.) Of course the case just cited is not the only case 
 of that and the immediately ensuing period holding to that view; but 
 a further investigation discloses that most or all of them were con- 
 trolled by drastic and harsh statutory enactments of that period. 
 Judge Parker called attention to this and to probable neglect of the 
 courts to note the statutory origin of these early English decisions in 
 the case decided by him as before cited. 
 
 The next clause requires that ''the application must be in writing 
 and sworn to by the applicant or by his agent or attorney." Many 
 allegations in complaints and affidavits filed in labor cases are made 
 upon information or belief, which is a vi >lati >n of well-settled rules 
 of pleading. No provision in this bill is aimed at that reprehensible 
 practice. It was probably thought that none was needed because 
 defendants may always make that defect a ground for objection.
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 39 
 
 The defect can be seen in bills of complaints placed in the hearings 
 by counsel in opposition at the present session. 
 
 The second paragraph of section 266c reads as follows: 
 
 And no such restraining order or injunction shall prohibit any person or persons 
 from terminating any relation of employment or from ceasing to perform any work 
 or labor, or from recommending, advising, or persuading others by peaceful means 
 so to do; or from attending at or near a house or place where any person resides or 
 works, or carries on business, or happens to be for the purpose of peacefully obtain- 
 ing or communicating information, or of peacefully persuading any person to work 
 or to abstain from working; or from ceasing to patronize or to employ any party to 
 such dispute; or from recommending, advising, or persuading others by peaceful 
 means so to do; or from paying or giving to or withholding from any person engaged 
 in such dispute any strike benefits or other moneys or things of value; or from peace- 
 ably assembling at any place in a lawful manner and for lawful purposes; or from 
 doing any act or thing which might lawfully be done in the" absence of such dispute 
 by any party thereto. 
 
 The words "and no such restraining order or injunction," in this 
 paragraph, limits all that follows. First, the acts mentioned in this 
 paragraph which can not hereafter be forbidden must be such as 
 are done in cases where employers and employees, etc., are parties; 
 and, secondly, such as are done in cases ' ' involving or growing out 
 of a dispute concerning terms or conditions of employment." 
 
 And the order or injunction shall not prohibit "any person or 
 persons from terminating any relation of employment." 
 
 I have already shown how the bogus element of malicious motive 
 has been introduced into strike cases, and there have been some 
 statements by opposition counsel, and consequently some misrep- 
 resentation, as to what Justice Harlan actually decided in Arthur 
 v. Oakes (63 Fed. R., 310, 317). But really there is no room for a 
 misconstruction. He said: 
 
 The rule, we think, is without exception that equity will not compel the actual, 
 affirmative performance by an employee of merely personal service any more than 
 it will compel an employer to retain in his personal services one who, no matter for 
 what cause, is not acceptable to him for service of that character. The right of an 
 employee engaged to perform personal service to quit that service rests upon the 
 same basis as the right of his employer to discharge him from further personal service. 
 If the quitting in the one case or the discharging in the other is in violation of the 
 contract between the parties, the one injured by the breach has his action for dam- 
 ages; and a court of equity will not, indirectly or negatively, by means of an injunc- 
 tion restraining the violation of the contract, compel the affirmative performance 
 from day to day or the affirmative acceptance of merely personal services. Relief 
 of that character has always been regarded as impracticable. 
 
 Sitting with Justice Harlan at circuit in that case were other 
 learned jurists, but there was no dissent from these views. 
 
 And in this connection I call attention to the priority of Judge 
 Taft's decisions in Moores v. Bricklayers' Union, in the Thomas case, 
 in the Toledo and Ann Arbor case to this decision of Justice Harlan. 
 It would appear, however, that Mr. Taft has never seen or had his 
 attention called to the decision in the Arthur v. Oakes case. This 
 must be true, because the most recent expression of his views are 
 directly opposed to those of Justice Harlan as expressed in that case. 
 
 The most extreme opponents of effective legislation, formally at 
 any rate, concede great latitude in the matter of severing the rela- 
 tion of employer and employee; in other words, the right to strike. 
 But they make the concession with reservations and qualifications 
 which deprive their concession of nearly all its value. They say to 
 the wage earners, "Yes; you may strike for a lawful purpose, but if
 
 40 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 the circumstances give warrant to a belief that you are inspired by 
 malicious motives in striking, then your act of striking falls within 
 the definition of conspiracy." This view was fairly expressed by 
 President Taft in the June number of McClure's Magazine, 1909 
 (p. 204). In that article Mr. Taft refers to several cases of injunc- 
 tions granted by himself when a judge into which, for the purpose of 
 giving effect to an injunction greater saction of authority, he had 
 imported from afar the theory of a boycott and strike combined. 
 But he finally reached the strike question pure and simple and 
 showed his complete surrender and subservience to P. very thing that 
 is extreme and nostile to workingmen in the shape of judicial utter- 
 ance, by approving the doctrine of his own early decision hi which we 
 first meet the strange doctrine that a court may inquire into the 
 motives of strikers. In the same article he attributes the growth of 
 organized labor in recent years to such injunction decisions as he had 
 rendered in the Bricklayers', the Phelan, the Toledo and Ann Ar- 
 bor, and similar cases. But he did not fairly or truly state the 
 result of the Arthur case. He stated that "it was left open as an 
 undecided question whether men who were inciting employees to 
 quit then* employer in a violation of some legal duty might be re- 
 strained from doing so." In that case the court clearly and emphat- 
 ically denied the jurisdiction of a court of equity to restrain men 
 from striking in violation of a contract, as is shown by words just 
 quoted from the opinion. 
 
 The twisting and perverting a boycott element into strike cases, a 
 feature of every decision of Judge Taft, in order to give some color of 
 legality to an injunction, subsequently became a feature of many 
 strike injunctions. It was a feature in Fame Lumber Co. v. Neal in 
 the District Court for the Southern District of New York, not offi- 
 cially reported, and in Sailors' Union v. Hammond Lumber Co., 
 decided by the circuit court at San Francisco in 1907. 
 
 Opposition counsel, in referring to what Justice Holmes said in 
 Vergelahn v. Guntner (167 Mass., 92), never omit to mention the 
 fact that he was giving the opinion for the minority in that case, but 
 never do mention the fact that these have since become the settled 
 law in that State. I refer to Pickett v. Walsh (192 Mass., 572), 
 already quoted. 
 
 The next limitation upon the power of the courts to be noticed is 
 that whereby they are forbidden to enjoin any person or persons 
 "from ceasing to perform any work or labor." 
 
 In discussing this provision Mr. Hines, as representative of the 
 railroads, said: 
 
 Section 10 of the act to regulate commerce imposes penalties not only upon the com- 
 mon carrier which violates provisions of the act, but also upon agents or persons acting 
 for or employed by such common carriers. 
 
 Now, section 10 of the interstate commerce act contains many 
 penal clauses of a similar character. Is each of them to stand as a 
 separate argument against any legislation to regulate the issuance 
 of injunction now and forever? It would be difficult or impossible 
 ever to make any such regulations unless the regulation of interstate 
 commerce and of the conduct of carriers were simultaneously aban- 
 doned. It should be a sufficient answer to all that to say that the 
 Constitution of the United States supersedes the jurisdiction of 
 courts of equity and prohibits involuntary servitude.
 
 PENDING BILLS FOE REGULATING INJUNCTIONS. 41 
 
 Justice Harlan, in Arthur v. Oakes, said something about certain 
 circumstances under which men might be enjoined even from strik- 
 ing. Although it was a dictum, I respect it. He clumsily expressed 
 the idea which Justice Holmes made clear in Aikens v. Wisconsin 
 (195 U. S., 205). Any constitutional right may cease to become 
 such when embraced within a comprehensive scheme of illegality. 
 And that holds true whether or not a labor dispute exists. 
 
 But here we must distinguish between a mere strike and a scheme 
 of illegality extending beyond and outside the strike. A strike 
 which includes trespassing or destroying property or interfering with 
 possession and use of property can of course be enjoined in so far 
 as the strike becomes a component part of the conspiracy, but no 
 further. On the other hand, if the act in contemplation be merely a 
 strike the motives are immaterial. 
 
 The argument of Mr. Hines is too broad and is easily reducible to 
 absurdity by extension to other duties or liabilities of railroad com- 
 panies. A conclusive answer is that both the companies and em- 
 ployees are subject to penalties, and the companies are not prohibited 
 from discharging unfaithful employees. 
 
 Human nature can not be dealt with by statutes, directing persons 
 to continue in incompatible relations, or to endure intolerable condi- 
 tions. The most solemn and formal contract is merely a social treaty, 
 and contracts for personal service are in their very nature terminable. 
 Specific performance through injunction process, even if practicable 
 at all, would be a cruel remedy. Even with respect to domestic rela- 
 tions, injunctions are confined to property rights. 
 
 The next clause with its connection forbids an order or injunction to 
 prevent any one "from recommending, advising, or persuading others 
 by peaceful means, so to do"; that is, to terminate the relation of 
 employment, or to cease to perform any work or labor. 
 
 This is fully covered by what has been or will be said under other 
 heads. 
 
 We next have the prohibition against restraining or enjoining any 
 person or persons "from attending at or near a house or place where 
 any person resides or works, or carries on business, or happens to be, 
 for the purpose of peacefully obtaining or communicating informa- 
 tion, or peacefully persuading any person to work, or to abstain from 
 working." 
 
 The objections to this clause are based wholly on misconstruction. 
 Indeed, the only way to even plausibly oppose it is to extend its mean- 
 ing by false construction. Even without the word " peacefully," as 
 here used, the courts would never construe it to authorize an illegal 
 act. Counsel in opposition, either innocently or willfully overlook the 
 fact that the formation of a conspiracy is itself an illegal act. And as 
 to the difficulty of drawing the line between legality and illegality, it 
 is not real but purely imaginary. At any rate, any practical difficulty 
 of discriminating would be no reason for opposing the legislative asser- 
 tion of a correct legal principle. (Hale v. Henkel, 201 U. S., 43.) 
 
 Though out of its proper order, it seems more conducive to a clear 
 understanding to here call attention to the last clause which qualifies 
 and gives its tenor and tone to all the other clauses in the last para- 
 graph. It will be for the courts to construe the section; and if any 
 one attempts to defend a conspiracy, coercion, threats, or any illegal 
 act however peaceable in form, because the word "peaceably" or
 
 42 PENDING BILLS FOB REGULATING INJUNCTIONS. 
 
 "peacefully" is used, the court will give effect to the entire section 
 and read the last clause into every part of it as evidence that Congress 
 did not intend to sanction as single unlawful act. The last stands as 
 a saving clause, though appearing to be scarcely needed, since all the 
 acts and conduct specifically mentioned in section 266c of the bill are 
 lawful at all times and under all circumstances. \\ ho will say that it 
 is unlawful for any one to terminate, for any cause appearing to him 
 sufficient, the relation of employer and employee? If conditions 
 become intolerable one should be, and is by law, excused for ceasing to 
 perform any work or labor; and surely the giving of advice, whether 
 wisely or unwisely, so to <?ease in performance should have no legal 
 trammels upon it. 
 
 We have next these words: 
 
 Or frpjn attending at or near a house or place where any person resides or works 
 or carries on business, or happens to be for the purpose of peacefully obtaining or 
 communicating information. 
 
 Counsel have striven to place upon these words a construction 
 which would authorize a serious invasion of private rights. But 
 statutes are construed reasonably and in the light of conditions and 
 of any evils existing at the time and which are sought to be rem- 
 edied. If you should examine the court orders that I have called to 
 your attention you would see the evil and the need of a remedy. 
 But you can see it in the official reports of cases. In addition to a 
 few matters which upon sufficient allegations whether true or false 
 I need not now discuss the defendants are properly forbidden to do, 
 such as trespassing upon private property, tney^are forbidden to 
 persuade, peaceably or otherwise, tne employees of the plaintiff to 
 quit or unemployed persons not to enter his employ, and are some- 
 times forbidden to speak 1 to them at all, or even to approach them. 
 I do not see how it would be possible for any court to construe that 
 clause as legalizing the entering of anyone's house without his con- 
 sent, or transgressing a law, or even violating any social proprieties 
 in any residence or other place. If so construed it would be uncon- 
 stitutional as relating to private residences, and I am sure we do not 
 seek any unconstitutional legislation. 
 
 Moreover, outside of and untouched by this provision stands the 
 police power. In addition to the constitutional right of all persons 
 to defend and protect their homes from hostile or even unwelcome 
 intrusion is the right to call for police protection, and as against a 
 complaint or grievance of that sort there is no pretense that the 
 police are not ready to afford protection. Nor can any such showing 
 be made, because the police are not only always ready but too 
 wiling to U33 thnir authi;*ity and fores on such occasijns. 
 
 I will in this connection refer for a moment to the attempt of coun- 
 sel for several railroads, Mr. Hines, to give a construction to this pro- 
 vision which would enable crowds to assemble on railroad property 
 and obstruct transportation. The answer is the same as before. 
 There is only one direction in which railroads have ever looked for 
 protection against all such interferences, and that is toward the police 
 power. They must look to and rely upon that hereafter as .hereto- 
 fore. Whether this bill passes or not. injunctions would be as ine<:'ec- 
 tual hereafter as they have been in times pr st. 
 
 The word "peacefully,'' used here, might have been safely omitted, 
 but is inserted in order to remove all doubt.
 
 PENDING BILLS FOE BEGULATING INJUNCTIONS. 43 
 
 PEACEFUL PICKETING. 
 
 The conduct here exempted from injunctions has come to be known 
 as picketing. Picketing is undertaken to preserve the status quo 
 created by a strike. The act of picketing does not stand on the 
 same basis as the strike. Though incidental thereto, it is neverthe- 
 less in most or all aspects an independent proceeding affecting the 
 employer with whom the strikers have their dispute, indirectly. In 
 picketing, whether by peaceful methods or with violence, the pick- 
 et ers deal directly with third persons. Hence, it has always seemed 
 that allegations concerning acts done by way of picketing a strike 
 were foreign to the issue and totally irrelevant in complaints against 
 strikers. It is otherwise of course where the picketing consists in or 
 amounts to trespasses upon the premises of complainant or otherwise 
 inflicts upon him a direct loss. But I need not discuss cases of 
 picketing involving trespass, because trespass disturbs the possession 
 of property and is unlawful. Only lawful acts are covered by this 
 bill. 
 
 Here is an excerpt from the opinion in Pierce v. Stablemen's Union 
 (156 Cal., 70). It would read better, and be at least relevant if not 
 material, if used in an action at law brought by the party impeded 
 by the picketers while in quest of employment. I do not read it 
 because I think it good law, but as an instance of a perverted and 
 erroneous view of the law. It is as follows (p. 79) : 
 
 The inconvenience which the public may suffer by reason of a boycott lawfully 
 conducted is in no sense a legal injury. But the public's rights are invaded the 
 moment the means employed are such as are calculated to and naturally do incite to 
 crowds, riots, and disturbances of the^ peace. And as illegally interfering with his 
 busim ss the employer may justly complain when the rights of his nonunion employee 
 and the rights of the public are thus invaded. 
 
 It is the last sentence to which I take exception. 
 
 PRESENT LAW AS TO PICKETING. 
 
 In picketing cases it is obvious that, unless the picketers resort to 
 trespasses on the premises of the complainant, the conduct of the 
 defendants complained of, if unlawful, is without essential connection 
 with avowed purposes of the union, while if peaceable, amounting 
 to no more than persuasion, the picketing should be exempt from 
 injunctive restraint. Nevertheless, Federal and some State courts 
 of equity have on several occasions exercised a power herein 
 which was virtually police power, and have gone even further in 
 coercion and restriction than the police would be warranted in going. 
 
 That the act of picketing is distinct from the dispute proper, often 
 governed by different principles, and requiring separable judicial 
 treatment, was recognized by the Supreme Court of California in the 
 case just referred to of Pierce v. Stablemen's Union. And the court 
 in that case, while affirming an order granting an injunction, placed 
 in the forefront of the opinion the assertion previously quoted which 
 reads rather strangely, and appears somewhat out of place in an 
 equity case brought against an organization of wage-earners, or an 
 association formed for any other legal purpose. 
 
 The term "picketing" has been appliea in all that class of cases 
 where a party complains that he was being injured or his business
 
 44 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 was being interferred with by efforts of members of unions to pre- 
 vent the places which they had vacated being filled OF held by per- 
 sons who sought employment, or who might otherwise be employed 
 in their stead. In some instances picketing has been resorted to in 
 furtherance of a boycott, but such are exceptional. 
 
 In the category of picketing cases, are the cases where the picketers 
 are also strikers, or are instigated by strikers, even where such 
 strikers have term contracts with their employers but have found 
 conditions of employment, outside the express terms of employment, 
 intolerable, or have found other pretexts for terminating the service, 
 and nevertheless attempt to prevent the employment of others hi 
 their stead. Whatever we may think of the morality of such con- 
 duct, it is evident that, in the final analysis, the jurisdiction in equity 
 has no other basis than a theory that the employer has a vested 
 property interest in the unattached labor of the vicinage. There 
 have been many injunctions granted in such cases. Hitcnman Coal 
 & Coke Co. v. Mitchell, Pierce v. Stablemen's Union, Sailors' Union of 
 the Pacific Coast v. Hammond Lumber Co., Adams v. Columbia 
 Typographical Union, and Kansas & Texas Coal Co. v. Denny were 
 picketing cases. Pierce v. Stablemen's Union (156 Cal., 70) may be 
 selected as a typical case. 
 
 The court forgot or completely ignored the distinction between legal 
 and equitable jurisdiction, as is evident from language found in the 
 opinion (p. 78), where it said: 
 
 The two classes of persons to whom we have adverted and whose rights necessarily 
 become involved where a picket or patrol is established are: (1) The rights of those 
 employed or seeking employment in the place of the striking laborers; and (2) the 
 rights of the general public. 
 
 Now, unless the employing capitalist has a property interest in mere 
 labor power, holding true even in the absence of a contract of employ- 
 ment with the persons whose labor he requires, who are total strangers 
 to the immediate dispute and whose names and identity may be 
 unknown, it is impossible to find a basis for the jurisdiction in such 
 cases. And without such interest, ah 1 else being conceded, it is appar- 
 ent that the only persons injured, in legal sense, by the acts or conduct 
 on the part of picketers complained of, are the persons themselves 
 whom he otherwise might be able to employ, but who are never made 
 parties to the suit; at any rate in no case thus far reported. 
 
 Here, then, we have an additional reason for the provision in the 
 clause we are now discussing which forbids the issuance of an injunc- 
 tion or restraining order against peaceful persuasion in furtherance of 
 a labor dispute. The same defect of jurisdiction exists, of course, 
 where the picketing amounts to threats of violence, but it is thought 
 that labor will be sufficiently safeguarded if the bill be worded in the 
 form as presented, that part to be considered in connection with other 
 parts. 
 
 Were it not for a popular prejudice or perverted view, amounting 
 when found in the judicial mind to a class bias, the applications for 
 the injunctions in cases of mere picketing would never be enter- 
 tained for an instant. 
 
 Competition, with its strifes, hardships, sacrifices, and losses is the 
 price we pay for liberty. There is no end or cessation of competition 
 between those engaged in what in restricted sense we designate as 
 "business." Overpersuasion, misrepresentation, deception, all forms
 
 PENDING BILLS FOK KEGULATING INJUNCTIONS. 45 
 
 of overreaching, with a freqeunt resort to coercion and force, con- 
 stitutes what later-day progressives of all parties call "unfair compe- 
 tition." But these have ,ever been incidents of competition and 
 probably will always be found, anything Congress or other legislatures 
 or the courts may do to regulate business to the contrary notwith- 
 standing. But the competition between labor and capital each for 
 its share of the rewards of industry, and between persons seeking 
 employment, which is also limited as is trade, goes on likewise, 
 characterized by the same regretable but inevitable iucidents. 
 
 Those who criticize and condemn the efforts of workingmen at 
 organizing and striving in an organized capacity to prevent their 
 places being taken by others, justifying the use of injunctive process 
 against them, assert the right of every man willing to labor to obtain 
 employment. That whole contention is based on the false assump- 
 tion that there is employment in the world for every man desiring and 
 competent for it. The sad truth is otherwise, and the concentration 
 of industry in corporate form with the more efficient use of ma- 
 chinery on a large scale intensifies and constantly extends the evil of 
 nonemployment. 
 
 The next clause reads thus: 
 
 Or from ceasing to patronize or to employ any party to such dispute. 
 
 The act which the courts are, by these wards, forbidden to enjoin, 
 has been sometimes called the "primary boycott." The cases in 
 which illegality attaches to the conduct thus described arises from 
 conspiracies and must extend beyond the original parties. It is then 
 called a "secondary boycott." The whole subject is more conven- 
 iently discussed under the next head. 
 
 We now come to the clause reading: 
 
 Or from recommending, advising, or persuading others, by peaceful means, so to do. 
 
 That is to say, no party to a labor dispute shall be enjoined from 
 recommending, advising, or pursuading others by peaceful means to 
 cease patronizing or employing any party thereto. 
 
 A preliminary question to be answered is, Who are the original 
 parties to a dispute concerning terms or conditions of employment? 
 
 This is a question which, if fully exploited, would require repetition 
 and overlapping much that has been already said. But in order to 
 clear up the fogs and mists raised by much misstatement tending 
 to establish the impression that this clause legalizes, or at least 
 forbids injunctive relief against secondary boycotts, the question of 
 who are and who are not the parties to a dispute resulting hi a boy- 
 cott or blacklist should be here answered, if possible. In answering 
 this question we have the answer to the question of the distinction 
 between the primary and secondary boycott. 
 
 Some courts have denied the existence of any real difference be- 
 tween a primary and secondary boycott. For instance the Supreme 
 Court of Calif ordia in Pierce v. Stablemen's Union (156 Cal., 70). I 
 think myself that it is unwise statesmanship on the part of our judi- 
 cial lawmakers to make any such distinction when they assume the 
 task of enacting special laws for special cases in the form of injunc- 
 tions. But the courts do recognize a technical distinction and this 
 bill follows the courts in that respect. So that regardless of any 
 personal views I must follow the lines of the bill conforming to the 
 views of the courts.
 
 46 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 Here is an illustration of what I understand to be meant by a 
 secondary boycott. One hundred men strike we will say a stove 
 and range company the Metal Polishers' Union. They are parties 
 to that dispute. They go all over the United States and advise or 
 persuade its customers to cease trading with it. They have that 
 right by this bill; they have that right now. That is the primary 
 boycott. Now one of these firms having refused to cease buying of 
 the Stove & Range Co., they institute a boycott against it. That 
 is a secondary boycott. It is not touched by this bill because such 
 firm so boycotted is not a party to the dispute. 
 
 This provision bears alike on employers and employees. No em- 
 ployer can be enjoined from ceasing to employ, or from peacefully 
 recommending and persuading others not to employ any party to a 
 labor dispute. It withholds from employers the injunctive remedy 
 against the so-called blacklist, which is in vogue to a far greater 
 extent than is the boycott. So the clause awards to employers and 
 employees equal treatment. Now, let us take any employer. He 
 has a dispute with employees and discharges them and recommends, 
 persuades, and advises other employers not to employ them, and if 
 they follow his advice he has blacklisted them. It is my belief that 
 this corresponds exactly to what some courts call the primary boy- 
 cott, and that was held, even by Judge Taft, to be legal. 
 
 But, now, suppose one of these other employers does not see fit to 
 follow his advice, and in order to enforce compliance he gets others 
 to join him in some retaliatory action toward the persons whom he 
 has so advised. That would be going outside the dispute and he 
 could be enjoined. The wrong might not consist in blacklisting, but 
 that is immaterial. The essential idea is that it is a wrongful act 
 and that two or more are acting in concert to perpetrate it. They 
 could all be enjoined, anything in this bill to the contrary notwith- 
 standing. 
 
 Now revert to the employee again. He ceases to patronize A, 
 with whom he has a dispute, and recommends others to also cease. 
 If they all cease, well and good; he is within his rights. But if B, 
 one so advised, does not see fit to cease and the employee joins others 
 in a boycott of B, that is a new quarrel. It can, notwithstanding 
 anything hi this bill, be enjoined, waiving for present purposes the 
 question of property rights. 
 
 I will now give a clear instance of the secondary boycott of a 
 slightly different kind. It is a very common instance which, how- 
 ever, we never hear of in the courts. There is, we will say, a manu- 
 facturer and dealer hi stoves at St. Louis. It is, we will say, an 
 excellent article and could succeed on its own merits. But the com- 
 panv is tempted by a scheme for greater profits through exclusive 
 marke ts and higher prices. Taking advantage of the popularity of 
 its brand of goods in a wide section, it makes exclusive contracts with 
 the stove dealers throughout that section, especially in the smaller 
 cities and towns, that these dealers shall put up the price of this 
 stove and refuse to handle the stoves of that manufacturer's chief 
 competitor in the manufacture of stoves, the advance on the usual 
 and fair price to be divided between the manufacturer and dealer. 
 Now that is an arrangement in restraint of trade at any rate the 
 general scheme is a combination in restraint of trade. So far 
 we have only what may be also termed a primary boycott directed
 
 PENDING BILLS FOE KEGULATING INJUNCTIONS. 47 
 
 against the competitor. But suppose the argeement contains a 
 stipulation that in case the dealer buys any goods from any other 
 manufacturer the stove maker will refuse to sell him any more stoves 
 on any terms, and the agreement is violated in that respect, and the 
 threat is carried out ? There you have the secondary boycott. The 
 agreement is itself a conspiracy in restraint of trade because hurtful 
 to public interest. It is also a conspiracy because attempting to 
 sanction a secondary boycott to be inaugurated by one of the parties 
 against the others in the event that one of them does not persist in 
 performing his part in the primary boycott. 
 
 Now, these are between business men. The country is overlaid with 
 them, overlapping each other in all directions. They seldom or 
 never come before the courts in private litigation, and although 
 high prices are extorted through such arrangements, public officers 
 ignore them. 
 
 The view I have here taken of the question of what constitutes ille- 
 gality in strike and boycott cases is that advanced by the supreme 
 court of Massachusetts, New York, Rhode Island, Indiana, Missouri, 
 Montana, California, one or two other States, by Judge Sanborn 
 in the case of Allis, Chambliss Co. v. Ironmolders' Lnion (166 Fed R., 
 50), and the Circuit Court of Appeals of the Second Circuit, as ex- 
 pressed by Judge Noyes in National Fireproofing Co. v. Mason 
 Builders' Association. By these courts the law governing strikes and 
 boycotts is simplified, and the turning point of legality or illegality 
 is found not in the act of striking or govcotting per se, but in the 
 means employed, or intended to be employed, to carry it on. Of 
 course, workingmen may actually conspire in criminal sense as may 
 others; but this bill leaves conspiracies untouched. 
 
 The provisions of this bill conform to these more recent, more 
 humane, and more enlightened views. A few illustrative cases 
 additional to those already discussed will be now briefly referred to. 
 
 In Jacobs v. Cohen (18 N. Y., 207, 211) the court, speaking of a 
 strike, said: 
 
 That, incidentally, it might result in the discharge of some of those employed for 
 failure to come into affiliation with their fellow workmen's organization, or that it 
 might prevent others from being engaged upon the work, is neither something of which 
 the employers may complain nor something with which public policy is concerned. 
 
 The supreme court of the same State, in Mills v. United States 
 Fruiting Co. (99 Apj. Div., 605; N. Y. Supp , 185, 190), said: 
 
 There is a manifest distinction, well recognized, between a combination of workmen 
 to secure the exclusive employment of its members by a refusal to work with none 
 other and a combination whose primary object is to procure the discharge of an out- 
 sider and his deprivation of all employment. In the first case the action of the com- 
 bination is primarily for the betterment of the fellow member. In the second case 
 such action is primarily "to impoverish and crush another" by making it impossible 
 for him to work there, or, so far as may be possible, anywhere. The difference is 
 between combination for welfare of self and that for the persecution of another. The 
 primary purpose of one may necessarily but incidentally require the discharge of an 
 outsider; the primary purpose of the 'other is such discharge, and, so far as possible, 
 an exclusion from all labor in his calling. Self-protection may cause incidental injury 
 to another. Self-protection does not aim at malevolent injury to another. 
 
 It will be seen that Judges Loring, Noyes, Sanborn, Holmes, 
 McKenna, Holloway, Parker, and their associates in the respective 
 courts, refused to be moved by the pathetic appeals of counsel that 
 some corporation or firm employing labor on a large scale was about 
 to be financially ruined. Tnay say that the rights of each of the
 
 48 PENDING BILLS FOE BEGULATING INJUNCTIONS. 
 
 many, though financially small in comparison, must be preserved 
 though great losses may result to an individual; that injury inflicted 
 from the exercise of a lawful right is darnnum absque injuria. 
 
 It is impossible for the Federal Government as now administered 
 to consistently condemn any form of the boycott. For good and 
 sufficient reasons, no doubt, the Government has during the last four 
 years prosecuted 370 boycotts against seed dealers and is contem- 
 plating an extension of its boycott system. The Washington Star 
 of July 27, 1912, contained a news item reading, in part, as follows: 
 
 Promoters of fake orchard, irrigation, timber growing, and similar farming schemes, 
 it is announced, can take notice that they are likely to be registered in a list of fraudu- 
 lent companies now being prepared by the Department of Agriculture. The depart- 
 ment is making a register for office reference only, but it is intended to protect 
 investors who are wise enough to make inquiries before sinking their money in some 
 advertised land scheme. The subject is rather a delicate and difficult one to handle, 
 for Congress has made no provision for the department issuing a blacklist. Congress 
 did this some years ago in the case of seed merchants selling adulterated seeds. The 
 Secretary of Agriculture was directed to buy in the open market a certain number 
 of seed samples, mostly forage plant seeds, annually. These were to be analyzed 
 and the names of the venders and the results of the analyses published. 
 
 This law is still in force and the list is published each year. The analyses were 
 revelations. Many of the samples were adulterated with 50 per cent or dirt, trash, 
 and weed seed. A few of the samples were almost pure and others had none of the 
 forage seeds supposed to be sold at all. Tke publication of the names in the black- 
 list was remarkable, and few of the venders have ever been caught twice. 
 
 It will be observed that the Star, without the remotest semblance 
 of propriety, places these crusades designed to deprive so-called busi- 
 ness men o"f their customers in the category of blacklisting. 
 
 It is practically impossible to discuss the sociological and legal prin- 
 ciples governing the strike and boycott and other movements of organ- 
 ized labor fairly and intelligently without taking a risk of being 
 misunderstood, misconstrued, and misrepresented. In the first place 
 the boycott is as defensible as the strike, and they are equally sub- 
 jected to unmeasured and persistent condemnation by those not hav- 
 ing the workingman's point of view. To say that men of a large class, 
 such as wage earners of the country, may organize into unions, enjoy 
 the right to freely speak and print their views, advocate social, indus- 
 trial, and political changes, advance their collective and distinctive 
 as well as their individual interests, peaceably assemble without limit 
 for any and all lawful purposes, which necessarily includes the exer- 
 cise of rights constitutionally guaranteed, and yet to assert a power 
 in any branch of government to prescribe how or when or to what 
 effect they shall organize, for what purpose they shall meet and com- 
 mingle, what they shall say the one to the other relevant to their com- 
 mon or class interest, is not only unjust and dangerous doctrine, but 
 partakes of the chimerical and impracticable. 
 
 The spirit of self-assertion and impulse to resent wrong, real or 
 fancied, are too generally prevalent among a self-governing people 
 to be controlled or subdued, even if all the courts in the country 
 should devote their time exclusively to the attempt. How is it pos- 
 sible for courts of equity to deal with the innumerable, incessant, and 
 interminable conflicts and competitions at work in every city, town, 
 village, and neighborhood 3 If those between industrial classes are 
 to have the espionage and arbitrage of the courts, why not those 
 between communities, nationalities, and religious denominations ? 
 These questions answer themselves. We need not defend the morality
 
 PENDING BILLS FOR REGULATING INJUNCTIONS. 49 
 
 nor even the legality of strikes and boycotts, even if there were any- 
 thing in this bill calling for such defense. I go to the point of saying 
 that where there is no possible equity there is no possible jurisdiction, 
 and since the exercise of the assumed jurisdiction without the inflic- 
 tion of more evil than good is inconceivable, it is well that it should 
 cease. 
 
 To properly understand the point and application of the cases used 
 in the report of the House committee, the fact must not be overlooked 
 that after a labor dispute has arisen and the parties are strangers, in 
 legal sense, that being the only condition under which the provisions 
 of the bill are applicable, a boycott consists wholly and exclusively 
 of words spoken or written. If the parties speak truly, of course 
 they are immune from legal consequences. If they speak falsely, of 
 course, an action for slander or libel lies, or a prosecution may be 
 instituted in most jurisdictions, even for slander. But to permit a 
 court of equity to make a special prohibitory law for the case, in 
 advance of ascertainment of the facts, otherwise than before a jury 
 with the privilege of cross-examination of witnesses, with penal 
 consequences for disobedience, is of course, to arbitrarily set aside 
 all bills of rights and constitutional guaranties of free speech and 
 free press. And this has often been done by one man acting without 
 responsibility, exercising an unlimited discretionary power. In 
 Dailey v. San Francisco Superior Court (112 Cal., 94; 32 L. R. A., 
 273) the Supreme Court of California, sitting in bane, issued writs 
 of certiorari and prohibition quashing an injunction which had been 
 issued by the superior court. Referring to the provision hi the Cali- 
 fornia bill of rights, the court said : 
 
 The wording of this section is terse and rigorous, and its meaning so plain that 
 construction is not netded. The right of the citizen to freely speak, write, and pub- 
 lish his sentiments is unlimited, but he is responsible at the hands of the law for an 
 abuse of that right. He shall have no censor over him to whom he must apply for 
 
 permission to speak, write, or publish; but he shall be held accountable to the law 
 for what he speaks, what he writes, and what he publishes. It is patent that this 
 right to speak, write, and publish can not be abused until it is exercised, and before 
 
 it is exercised there can be no responsibility. The purpose of this provision of the 
 Constitution was the abolishment of censorship, and for courts to act as censors ia 
 directly violative of that purpose. 
 
 The next clause to be noticed is that which taken with its connec- 
 tion, forbids the courts to enjoin any person or persons "from paying 
 or giving or withholding from any person engaged in such dispute 
 any strike benefits or other moneys or things of value." 
 
 This, like the clauses relating to the withdrawal of patronage and 
 employment, is limited to the parties to the dispute. 
 
 To such extremes are the opponents of the bill driven that they 
 draw on their imaginations and suggest all sorts of impossibilities. 
 For instance, Mr. Monaghan (p. 83) says: 
 
 In such an event a labor union engaged in controversy with an individual manufac- 
 turer is justified not only in persuading and inducing in a peaceful manner the em- 
 ployees of other institutions which have beneficial business intercourse with the foun- 
 dry struck to leave this work, but in addition is permitted, without the possibility of 
 equity interference, to offer or give bribes of money or things of value to the employees 
 of a customer who continues to make use of the products of the struck foundry in order 
 to injure dealer or customer who refuses to join in the boycott; men who are members of 
 labor organizations may approach the clerks or the employees of an establishment that 
 is making use of the products of the struck foundry and offer them bribes of money or 
 things of value for the purpose of inducing them to quit work for that employei, or for 
 
 57939 12 4
 
 
 50 PENDING BELLS FOB BEGULATING INJUNCTIONS. 
 
 the purpose of doing any other thing that might ordinarily assist them in that strike, 
 provided no violence or threat of violence is used. The provision even enters into 
 the transportation of goods by freight and into matter of inducement by bribe on the 
 part of labor organizations to procure the employees of interstate carriers to refuse to 
 handle the freight belonging to the struck institution. 
 
 Here we see how obsessed have become the minds of men engaged 
 in big business and their attorneys, and to what an extent they have 
 come to rely on injunctive processes as weapons with which to defeat 
 labor in its struggles for better wages and conditions. They look 
 to it as a remedy for all conceivable evils. It is true that labor or- 
 ganizations might resort to bribery to accomplish their ends; it is 
 possible that in some rare instance they have already. But, to 
 state it very conservatively, that is not the form or kind of bribery 
 and corruption of which the public complains, or upon which its 
 attention has been fixed, either in former or more recent times. And 
 whoever before heard an injunction suggested as affording any pro- 
 tection against it ? 
 
 There are, however, more conclusive answers which will readily 
 suggest themselves to all who are not blinded by their viewpoints, 
 as is Mr. Monaghan and most of the others who have appeared in 
 opposition. 
 
 Other strenuous efforts have been made in argument to show that 
 even this harmless liberty of paying strike benefits might be per- 
 verted and abused. I suppose any man with an abundance of cash 
 could aid any other lawful organization to which he belonged in 
 carrying out its purposes, or receive assistance from it to the same 
 end, without his right to do so being questioned. But when the 
 right of an association of workingmen to do so is sought to be recog- 
 nized, learned counsel are sent here by employing corporations to 
 deny the right, and to denounce its exercise as something fraught 
 with danger. The Question as to the lawfulness of the act is settled, 
 as I agree it should be settled, by the federal courts themselves. In 
 A. S. Barnes & Co. v. Berry (157 Fed. R., 883) it was held, without 
 dissent or qualification, that 
 
 * * * The strike benefit fund is created by moneys deposited by the men with 
 the general officers for the support of themselves and families in times of strike, and 
 the court has no more control of it than it would have over deposits made by them 
 in the banks. 
 
 I note that Mr. Hines took care to call the attention of the com- 
 mittee to two State cases (A. R. Barnes & Co. v. Chicago Typo- 
 graphical Union (232 111., 424), and Reynolds v. Davis, 198 Mass., 
 294) holding contrary to my contention, but neglected to cite this 
 Federal case, which also accords with latest English authorities, 
 cited in the House committee's report. 
 
 The next clause to which I direct attention is this: 
 
 Or from peacefully assembling at any place in a lawful manner and for lawful 
 purposes. 
 
 This means, of course, assemblages where they have the right of 
 assembly in their usual places of meeting, or on grounds where the 
 right is public, or on premises where they have permission of the 
 owner or person in possession. Any other assembling must be by 
 overcoming resistance, and in addition to being unlawful, could not 
 be peaceful.
 
 PENDING BILLS FOB REGULATING INJUNCTIONS, 51 
 
 It is strange that anyone can be found to criticize this clause. 
 And yet Mr. Monaghan, as the basis or major premise, for opposi- 
 tion makes this very correct but totally irrelevant statement (p. 83): 
 
 What "lawful purposes" are is modified by what goes before. It is not now con- 
 sidered lawful for a body of men to assemble upon the premises of a struck manu- 
 facturing establishment, nor in the immediate vicinity of a struck manufacturing 
 establishment, for the purpose of persuading the men in that establishment to quit 
 their work. 
 
 And in Mr. Hines's statement to the committee fears are expressed 
 that this may be held or may be used as a cloak for trespasses on rail- 
 road property. Though there may possibly have been instances of 
 attempts at such assemblages he failed to mention any. But railroads 
 have never relied upon injunctions as a protection against them and 
 never will, no matter what may be the state of the law. They have 
 found the police forces their sole and safe and adequate reliance. 
 
 I now have reached the final clause in the bill, being the concluding 
 clause of section 266c, and reading thus: 
 
 Or from doing any act or thing which might lawfully be done in the absence of such 
 dispute by any party thereto. 
 
 Though this has been discussed at some length in another connec- 
 tion, a brief and more critical view of it may be here properly expressed. 
 
 The great truth that the legal quality of an act is never changed by 
 the existence of a labor dispute seems not to have dawned upon, or at 
 anv rate not have impressed the opposition, nor its twin truth that to 
 thinking otherwise is due many abuses of the injunctive process. As 
 has been conceded in the statement of Mr. Davenport, and as seems to 
 be the view of the subcommittee, the word "lawfully," as here used, 
 "colors" the entire paragraph, and must of course apply to each case 
 as it arises. Nor with that word used, as here used, could the inter- 
 polated construction apply anywhere. 
 
 PROVISIONS OF ANTITRUST ACT NOT AFFECTED. 
 
 Considering the environment and business methods of those 
 responsible for the opposition, their solicitude for the safety and preser- 
 vation of the antitrust act is surprising and unaccountable. 
 
 The bill does not modify or touch the antitrust act. The reason is 
 simple : It does not withdraw the injunctive process from any unlaw- 
 ful act. No one can claim that it touches in any way any form of 
 contract in restraint of trade or any other description of contract, 
 except, perhaps, contracts for personal service. And contracts for 
 personal service are not within the act, because essentially local. 
 (Williams v. Fears, 171 U. S., 270.) What else does the antitrust act 
 reach? Why, conspiracies and combinations in restraint of inter- 
 state commerce. Conspiracy and combination within the moaning 
 of that act mean almost the same thing and are affected exactly alike. 
 For the purposes of this bill they are exactly identical in that they are 
 both excluded from its operation. To form a conspiracy to carry on 
 a nation-wide boycott, as in the Loewe v. Lawler case, could not be 
 lawfully done, either in the presence or absence of a trade dispute, nor 
 even if the Sherman Act had never been passed. 
 
 The antitrust act is a peaal statute. The civil remedy is super- 
 added. It is an unusual and exceptional use of injunctive process. 
 Congress can of course provide any means and instrumentalities,
 
 52 PENDING BILLS FOE EEGULATING INJUNCTIONS. 
 
 within the Constitution, which it sees fit. I have never denied to 
 Congress the power to provide that or any other remedy, even for the 
 prevention of injuries to personal rights which are committed to it to 
 protect. For such purpose it can confer extraordinary, even unheard 
 of, jurisdiction upon the courts. But Congress has never given the 
 courts jurisdiction to protect by injunction any personal right other 
 than that conferred in the antitrust act. Nor is that conferred for 
 the protection of any individual but of the public at large. 
 
 A private party who has sustained special injury by a violation of the Federal 
 antitrust act may sue in a Federal court for injunction under the general equity 
 jurisdiction of the court, where, by reason of diversity of citizenship of the parties, 
 the court has jurisdiction of the suit. (Bigelow v. Hecla Min. Co., 155 Fed. R., 869.) 
 
 In this case the whole question was reviewed and the conclusions 
 reached do not conflict with decisions denying general jurisdiction to 
 grant relief to private parties by injunction under the antitrust act. 
 
 In Leowe v. California Federation of Labor (139 Fed. R., 71) was 
 involved a boycott by a local association of Triest & Co., a San Fran- 
 cisco firm. Jurisdiction was exercised solely on the ground of diverse 
 citizenship, and neither the antitrust act nor interstate commerce was 
 mentioned. The order went only against local persons. 
 
 This bill leaves the law of conspiracy untouched. Mr. Davenport 
 gives an illustration of how, according to his view, one of these lawful 
 acts mentioned in the respective clauses of the last paragraph of sec- 
 tion 266c might be illegalized. His illustration is striking and flaw- 
 less, and the doctrine of Aikens v. Wisconsin (195 U. S., 205) is unas- 
 sailable. But, as already fully shown, the formation of a conspiracy 
 is itself an independent and distinct act, legally isolated from any act 
 mentioned in the bill. 
 
 SPECIAL PLEAS ON BEHALF OF RAILROADS. 
 
 It seems proper before closing to notice some special pleas inter- 
 posed and extraordinary arguments advanced by attorneys repre- 
 senting the principal railroads of the country. 
 
 No one appreciates more than I the value to the public of railway 
 service as well as the necessity of having the requirements of the 
 interstate commerce acts complied with. But is it necessary in order 
 to secure efficient service and compliance with the law that we leave 
 in the hands of the judiciary those arbitrary police regulations which 
 enable them, every time a labor dispute arises, to completely tie the 
 hands of railway employees and drive them hither and thither like 
 so many cattle? I think not. In fact, I know it is not. And even 
 if I thought otherwise, I would rather see the Government take 
 charge with an armed force when an extensive strike occurs, pro- 
 tecting alike the property of the railroads and the liberties of the 
 strikers until the trouble could be adjusted, than see exercised the 
 despotic powers which these gentlemen claim for the Federal courts. 
 Their objections to the various provisions of this bill resolve them- 
 selves into complaints as to relative convenience of the present vogue 
 in comparison with the inconveniences to result if the abuses and 
 usurpations of the judiciary are discontinued. It would not change 
 or modify my view and my attitude if I knew that every railroad 
 employee in the country was satisfied with the present condition in 
 which, ns r.gainst the power now exercised by some of the courts,
 
 PEXDING BILLS FOR REGULATING INJUNCTIOXS. 53 
 
 they are as utterly helpless to assert themselves to the full limits of 
 their rights as if they were subjects of an absolute old-time monarch. 
 I will not give my consent to a despotic tribunal reared and sustained 
 merely on respect for great wealth, rearing its head, casting its 
 shadow over the land, exercising legislative and executive powers, 
 even if I thought those whose liberties are imperiled would consent 
 to be so degraded and enslaved. 
 
 I shall, for the most part, ignore all those recitals of the duties of 
 carriers as to rates and prompt service to shippers. The Govern- 
 ment has complete control of rate matters, and I feel sure that it 
 will not oppress the railroads on account of any unavoidable failure 
 to comply with the law. As to liabilities incurred by the carriers 
 to shippers, the latter have always been reasonable. At any rate, 
 liberty and the constitutional rights of men have been seldom before 
 so coolly and deliberately measured in argument by a measure of 
 dollars and cents. 
 
 Mr. Bines calls attention to the fact that certain duties prescribed 
 by the interstate commerce act are the very duties interfered with by 
 the strike of 1894, which, I believe, has gone into history bearing the 
 name of the "Debs" strike. That strike occurring 18 years ago and 
 standing unique and alone, has been harped on in every argument 
 and in almost every phase of all the arguments in opposition. Its 
 incidents, and certain phases of it which no one more seriously regrets 
 than do the railway employees of the country, have been worked into 
 this discussion for all they were worth. In fact, they have been 
 overworked; because what then occurred as a, basis of court pro- 
 ceedings and military action finds neither equitable protection nor 
 legal sanction in any part or provision of the bill nor in the bill as a 
 whole. Those acts constituted according to all the definitions one 
 entire boycott and strike combined. It was what all who make such 
 a distinction designate as the secondary boycott. 
 
 Sufficient record may be found in 158 U. S., 564, to show that it 
 was a boycott of the Pullman Co., an industrial corporation, present- 
 ing all the phases of the Leowe v. Lawler case, though the latter did 
 not interfere with the actual movement of commerce. It was peace- 
 ful but involved violence and threats. It was not Attended with 
 any regard for the rights of others, but was attended with trespasses 
 on private property, the burning of cars, disabling of rolling stock, 
 and the like. 
 
 Notwithstanding the attempts here made to use the Debs case as 
 a precdent of value, there never was a clearer case for an injunction 
 for the protection of property rights. 
 
 Mr. Hines gives the committee the benefit of extracts from a 
 Socialistic sheet published in East St. Louis, and then recites various 
 acts of vandalism, each of which was a trespass on property as well 
 as a disturbance of possession. 
 
 Why didn't he make a manly and outright admission that he 
 wishes the power left with the courts to enjoin peaceful persuasion, 
 peaceful picketing, lawful assemblage, and all the other fundamental 
 rights specified in the bill? With the power in one hand to collect 
 not mere millions but billions of revenue in the form of excessive 
 freights and fares he objects to relinquishing any part of the power 
 held in the other hand to subjugate and enslave 1,600,000 railway 
 employees with usurpatory, blanket injunctions. Again and again
 
 54 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 he reverts to the public responsibilities of carriers under the interstate 
 commerce act, as if the labor which keeps all the wheels turning were 
 a negligible quantity in railroad operation. Does he wish to con- 
 vince Congress and the public that regulation is fraught with greater 
 evils than benefits ? Is it his purpose to prove that the time foretold 
 by Mr. Bryan has already come; that regulation has already proven 
 a failure, and the time for complete Government control or owner- 
 ship is at hand? His arguments point more directly that way than 
 to any defects or excesses in this bill. 
 
 I shall not at this time attempt a minute criticism of Mr. Hines' 
 argument. If I did I would find something to criticise in almost 
 every paragraph. 
 
 I will also revert to three cases which have been referred to time 
 and again and overworked in argument by the opposition. 
 
 THE DEBS CASE. 
 
 To see that the Debs case in the lower court can not be properly 
 used in the discussion of any provision of this bill, in view of estab- 
 lished legal principles already discussed, it is only necessary to look 
 at the case itself. The gist of the case is stated in the eleventh 
 paragraph of the syllabus (64 Fed. Rep., 725), in these words: 
 
 Where defendants, directors and general officers of the American Railway Union, 
 in combination with members of the union, engaged in a conspiracy to boycott Pull- 
 man care in use on railways, and for that purpose entered into a conspiracy to restrain 
 and hinder interstate commerce in general, and in furtherance of their design those 
 actively engaged in the strike used threats, violence, and other unlawful means of 
 interference with the operations of the roads, and, instead of respecting an injunction 
 commanded them to desist, persisted in their purposes, without essential change of 
 conduct, they were guilty of contempt. 
 
 In the principal case out of which this contempt proceeding grew 
 the defendants were charged, as is shown in this case, with taking 
 possession of, firing upon and setting fire to cars. (See 64 Fed. 
 R., 728.) 
 
 As further showing the basis of the jurisdiction exercised in that 
 case I refer to a synopsis of the points and authorities presented by 
 counsel and relied upon, the same being one ground of the decision, 
 of the court. The synopsis is in part as follows : 
 
 1. Any interference with property in the custody of the court is a contempt (citing 
 authorities). 
 
 2. Such also is any act of interference by force or threats with employees in charge 
 of such property (citing authorities). 
 
 3. Aiding, advising, or persuading another to do a forbidden act, or even permitting 
 another whose action can be controlled to do the forbidden act, is contempt (citing 
 authorities). 
 
 But another ground of the jurisdiction was that the conduct of all 
 the defendants in combination constituted a public nuisance. I will 
 not attempt an elaboration of the exceptional jurisdiction based 
 upon the suppression of purprestures and missances. 
 
 It is fully expounded both by Judge Woods in this case and by 
 Justice Brewer in the Supreme Court (158 U. S., 586-589). 
 
 THE BITTERMAN CASE. 
 
 In Bitterman v. Louisville & Nashville Railroad Co. (207 U. S., 
 205) the lower court had enjoined ticket brokers from dealing in 
 nontransferrable railroad tickets on the ground that they were thereby
 
 PENDING BILLS FOE BEGULATING INJUNCTIONS. 55 
 
 inducing the holders of such contracts (tickets) to violate their con- 
 tracts. Of course the rights secured by enforceable contracts, such 
 as these were, are property rights, and it did not require this decision 
 to so establish so well known a principle. And the basis of the 
 jurisdiction dwelt upon by the Supreme Court was the property 
 interest which the railroad company retained in the tickets by virtue 
 of the forfeiture clause, expressly held by the court to constitute a 
 property interest. 
 
 THE ADAIR CASE. 
 
 Since the expression of Justice Harlan in the course of a rhetorical 
 opinion to the effect that the right of a corporation to make contracts 
 is a property as well as a personal right is of no authoritative value 
 in a discussion of this bill, I shall not devote the time and labor which 
 would be necessary for the purpose to criticize it. Nor shall I pay 
 more than a mere passing notice to another expression in his tre- 
 mendously brilliant discourse. He also said: 
 
 The right of a person to sell his labor upon such terms as he deems proper is, in its 
 essence, the same as the right of the purchaser of labor to prescribe the conditions 
 upon which he will accept such labor from the person offering to sell it. (P. 174.) 
 
 Now, the learned justice's conception of labor is that of a com- 
 modity in the market. And if it can be kept on tap, or canned up, 
 until a purchaser appears, it is indeed difficult to see why a breach 
 of contract to deliver it can not be enjoined. But he proceeds 
 immediately to say: 
 
 So the right of the employee to quit the service of the employer, for whatever reason, 
 corresponds with the right of the employer to dispense with the services of such 
 employee. 
 
 And in support of this very correct statement he cites numerous 
 authorities, among which is Arthur v. Oakes, decided by himself. 
 
 Now, I will show the irrelevancy and worthlessness of all these cases 
 by the words of Mr. Davenport, who made most frequent and per- 
 sistent use of them: 
 
 Under the decision of the United States in this Adair case, and supported by a very 
 large number of decisions everywhere, those things that in the Pearre bill were sought 
 to be declared not to be property and property rights and would be covered by the 
 first clause of this bill. But the bill goes on, then, to say that a certain class of acts 
 attacking your property right shall not be enjoined against, and this is the way it 
 reads. 
 
 Senator SUTHERLAND. May I interrupt you again? I had understood I do not 
 know where I saw it or where I heard it that it had been claimed that the provision 
 in this bill now pending, with reference to property rights, would not include the 
 right to do business. I wondered what the foundation of that was. 
 
 Mr. DAVENPORT. In construing this bill I suppose the courts would say that what 
 the courts have said time out of mind are property rights would be covered by that 
 first section and that when it says that "unless to prevent irreparable injury to prop- 
 erty or to a property," whatever fell within that definition of property would be 
 covered by the terms. (P. 22, pt. 3. Senate hearings.) 
 
 As I stated the other day, if this bill were passed, the law would still be unchanged 
 as to what is lawful and what is unlawful. Its sole effect and, as I understand it, the 
 sole purpose of those gentlemen who took the responsibility of recommending it to 
 the House of Representatives is simply that it takes away the injunction process; 
 it is an anti-injunction bill ; it merely deprives the injured party of his relief in equity. 
 
 The committee will see that the purpose of this law. if it were enacted, and it had 
 the construction which its advocates contend for, its effect would not change the law 
 as to what property is nor to make lawful those things which are now unlawful, but 
 simply to take away from the persons whose property rights are affected by the unlaw- 
 ful acts the right to go into court of equity and seek the protection of an injunction.
 
 56 PENDING BILLS FOE REGULATING INJUNCTIONS. 
 
 Indeed, if you will look at this bill closely I think the courts in their struggle to main- 
 tain the law would be very apt to say it does not even do that, because if you will look 
 at this last section 266c, apparently the last clause colors all that has gone before, "or 
 from doing any act or thing which might lawfully be done in the absence of such 
 dispute by any party thereto." (Senate hearings, p. 256, pt. 4.) 
 
 You can not enjoin them from doing lawful acts. A court of equity will turn you 
 out in a minute unless you bring your case within jurisdiction of the court. You have 
 to show that unlawful acts are being done, you have to show why they are unlawful, 
 you have to show the injury is irreparable, and you have to show you have not that 
 adequate remedy at law which is essential. The law now is that these things are 
 lawful; they can not be enjoined by a court of equity; they will not be and they 
 never are. (Senate hearings, p. 271, pt. 4.) 
 
 The substance of all this is that Mr. Davenport, leading counsel in 
 opposition, says: 
 
 1. I am dwelling on the Adair case (and he might have included the Debs and 
 Bitterman cases), notwithstanding that it is entirely irrelevant. 
 
 2. The bill will not admit of a construction which forbids an injunction to prevent 
 any unlawful act, since the last clause colors and controls all the preceding. 
 
 3. The bill does not forbid equity to enjoin illegal acts, and equity will not enjoin 
 lawful acts. 
 
 NO CONSTITUTIONAL OBSTACLE IN THE WAY. 
 
 I shall not devote much tune on the question of constitutionality, 
 though hours of the subcommittee's time has been given up for what 
 I consider to be absurd attempts to show Congress to be destitute of 
 power to enact this or any similar bill. I shall not interpose what 
 might be called a constitutional argument, properly so called, since 
 that appears to be entirely unnecessary, but in order to remove a 
 possible doubt in any mind, I will condense a few propositions and 
 citations. 
 
 The contentions of counsel when reduced to simplest terms mean 
 just this: That when Congress had acted under its constitutional 
 power and had established a Federal court, common law and equity 
 powers of courts immediately flowed out of the Constitution into 
 these judicial receptacles. It is only necessary to briefly examine 
 this new doctrine to see the absurdities to which it would lead. 
 
 Here is an important fact, persistently overlooked in discussions 
 of counsel. The common-law courts of England, from King's Bench 
 down, in addition to administering statutory law and the common 
 law proper, exercised certain parliamentary powers so called to 
 distinguish them from the legislative powers of Parliament, but 
 which were in substance and effect powers of legislation. That is to 
 say, they assumed the prerogative of determining what public interest 
 and policy required, if the question had not been irrevocably settled 
 by precedents. In our schemes of government, National and State, 
 as has been many tunes decided, courts have nothing to do with the 
 policy of laws. It is their function to ascertain and declare what 
 the law is, leaving questions of policy to the legislature. In the 
 English system the legislative and judicial departments were, and 
 are, entirely independent of each other. It is true that the courts 
 are bound by acts of Parliament, as construed by them, but outside 
 the statutes their powers were as free from limitations as those of 
 Parliament itself, they being there the exponents and final arbiters 
 of public policy for the Kingdom. Many common-law rules and prin- 
 ciples were established in the exercise of these ultrajudicial powers. 
 The framers of the Constitution were familiar with aft this, and their
 
 PENDING BILLS FOB EEGULATING INJUNCTIONS. 57 
 
 knowledge of it was no doubt a predominating reason for rejecting 
 the common law as a part of our system. The result is that our 
 Federal courts possess the equitable jurisdiction of English chan- 
 cery courts, but do not possess their extra-judicial, or legislative, 
 powers. 
 
 When we speak of the powers of our courts we mean their juris- 
 diction, including what may be termed their implied jurisdiction, 
 meaning those powers which are necessarily incidental to the effec- 
 tive exercise of the jurisdiction. And when Congress sees fit to limit 
 or subtract from the jurisdiction the incident, to wit, the power, falls 
 with the principal thing. It is true that in the part of the Constitu- 
 tion providing for the judiciary, jurisdiction is confined as there 
 specified without limitation or reservation. It does not follow, 
 however, that the jurisdiction is not without limitation in the Con- 
 stitution. It is necessarily subject to such limitations and excep- 
 tions as may be imposed by Congress, which by the same instrument 
 is given power to establish the courts, and by necessary implication 
 to define and limit, as well as from tune to time to subtract from the 
 jurisdiction. 
 
 But it is said that to concede this would be conceding to Congress 
 the power to destroy the courts. This is undoubtedly true, but 
 what of it ? There never has been a time from the assembling of the 
 First Congress to the present when Congress had not the power to 
 destroy, not only the courts, but the executive department, and 
 even itself. This is well known, and the methods by which it might 
 do this are obvious; but a supposition that the Congress would ever 
 do any such thing is so ridiculous that the topic need not be pursued 
 hi detail. 
 
 The authorities in support of the foregoing propositions are ample. 
 
 In Gary v. Curtis (3 How., 236, 254) the Supreme Court said: 
 
 The courts of the United States are all limited in their nature and constitutions, 
 and have not the powers inherent in courts existing by prescription, or by the com- 
 mon law. 
 
 In section 720 of the Revised Statutes of the United States we have 
 a statute prohibiting the courts from issuing injunctions in certain 
 cases, and the constitutional validity of that statute was upheld in 
 Sharon v. Terry (36 Fed. R., 365) . And an examination of the judici- 
 ary act of 1789 will discover therein many limitations upon juris- 
 diction, not to mention subsequent statutes. The cases of Ex parte 
 Robinson (19 Wall., 505) and Finck v. O'Neal (106 U. S., 272) may 
 also be cited as authority to the same effect. In the latter case, it 
 appeared that Congress had taken from the court all power to 
 enforce its judgments, and the act of Congress was upheld by the 
 Supreme Court. In the opinion we find these highly significant 
 words : 
 
 The United States can not enforce the collection of a debt from an unwilling debtor 
 except by judicial process. They must bring a suit and obtain a judgment. To 
 reap the fruit of that judgment they must cause an execution to issue. The courts 
 have no inherent authority to take any one of these steps, except as it may have been 
 conferred by the legislative department; for they can exercise no jurisdiction, except 
 as the laws confer and limit it. 
 
 A number of State cases have been desperately resorted to by 
 opposing counsel to supply the lack of Federal authority. But the 
 constitutions of the various States themselves provide for and estab-
 
 58 PENDING BILLS FOR REGULATING INJUNCTIONS. 
 
 lish the courts, partition the powers of government in detail, pre- 
 scribing safeguards and limitations; whereas, in the federal system 
 full and complete control of the matter has been delegated to Congress. 
 Nor should the fact be overlooked that State decisions on the subject 
 are often based upon precedents of the common law, which, as is 
 well known, is no part of the Federal system. A striking illustration 
 of this divergence of btate from national view is seen in Ex parte 
 McCowan (139 N. Car., 95), where it was said: 
 
 We are satisfied that at common law the acts and conduct of the petitioner, as set 
 out in the case, constitute a contempt of court, and if the statute does not embrace this 
 case and in terms repeal the common law applicable to it, we would not hesitate to 
 declare the statute in that respect unconstitutional and void. 
 
 CONCLUSION. 
 
 I have not, in what I have said, sought to arouse any feeling of 
 passion for or against any class or interest. The issue is broader 
 than any class interest. Our institutions can not endure if any 
 large class be deprived for any considerable length of time of equal 
 rights and equal treatment in the courts; and since Congress nas 
 long neglected relief against the unjust discriminations herein, I 
 insist that it should interpose its power without further delay.
 
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