! 3 1924 055 816 650 TYaper andbrief ON The Writ of Injunction, Labor Unions, Boycotts, Strikes and Contempts PREPARED BY WILLIAM BARNES, SR. COUNSELOR AT LAW 1 9 O 8 THE MARTIN P. CATHERWOOD LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS CORNELL UNIVERSITY m.- '^. Oisu. €. Sui^^ Jfatittttkpt MattJi. Mam.. 1-^. A. The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924055816650 William Barnes, Born May 26th. 1824. PAPER AND BRIEF ON The Writ of Injunction^ Labor Unions, Boycotts, Strikes and Contempts PREPARED BY WILLIAM BARNES, SR. COUNSELOR AT LAW 1 9 O 8 ro^- HF PAPER AND BRIEF Prepared by the Honorable William Barnes, Sr. CoanscIot-at-Layr Nantucket Island, Massachusetts ON THE Writ of Injunction, Labor Unions, Strikes, Boycotts and Contempts It is, perhaps, proper to state that the writer is a lawyer who was from the commencement of his studentshipj in May, 1840, and from his admission to the bar, in July, 1846, until the passage of the Code in 1848, familiar more or less, with Chan- cery practice in the State of New York under Beuben H. Wal- worth, as Chancellor. The first plank of the Democratic ISTational platform at Denver is headed: " La-boe and Injtjitotiows." This issue, thus prominently pushed forward, as the most prominent in the presidential campaign of 1908, is undoubtedly the turning point of the pending political battle. Both lawyers and laymen should therefore have precise and definite information, as to what the Writ of Injunction is, at the present time, and its previous origin and history, in our jurisprudence. It is also necessary to examine the Republican and Democratic platforms at Chicago and Denver on this subject. The Repttblicak and Democeatic PIatforms on Injunc- tions AND Labok. The BepuUican Platform. — Once more the Republican Party, in National Convention assembled, submits its cause to the people. This great historic organization, that destroyed slavery, preserved 6 Brief on the Weit of Injunctiokt, Etc. the Union, restored credit, expanded the national domain, es- tablished a sound financial system, dereloped the industries and resources of the country, and gave to the nation her seat of honor m the councils of the world, now meets the new problems of gov- ernment with the same courage and capacity with which it solved the old. ********* " The Eepublican Party will uphold at all times the authority and integrity of the courts. State and Federal, and will ever in- sist that their powers to enforce their process and to protect life, . liberty and property shall be preserved inviolate. We believe, however, that the rules of procedure in the Federal courts with respect to the issuance of the Writ of Injunction should be more accurately defined by statute, and that no injunction or tem- porary restraining order should be issued without notice, except where irreparable injury would result from delay, in which case a speedy hearing thereafter should be granted." The Democratic National Platform is as follows: " The courts of justice are the bulwark of our liberties and we yield to none in our purpose to maintain their dignity. Our party has given to the bench a long line of distinguished judges who have added to the respect and confidence in which this depart- ment must be jealously maintained. We resent the attempt of the Republican Party, to raise a false issue respecting the judiciary. It is an unjust reflection upon a great body of our citizens, to assume that they lack respect for the courts. It is the function of the courts to interpret the laws which the people create and if the laws appear to work economic, social or political injustice, it is our duty to change them. The only basis upon which the integrity of our courts can stand is that of unswerving justice and protection of life, personal liberty and property. If judicial processes may be abused, we should guard them against abuse. Experience has proven the necessity of a modification of the present law, relating to injunctions and we reiterate the pledges of our national platforms of 1896 and 1904 in favor of the measure which passed the IJiaited States Senate in 1896, By "William Baenes, Se. 7 but which a Republican Congress has ever since refused to enact, relating to contempts in Federal courts and providing for trial ^J jury, in cases of indirect contempt. " Questions of judicial practice have arisen especially in con- nection with industrial disputes. We deem that the parties to all judicial proceedings should be treated with rigid impartiality, and that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved. " The expanding organization of industry makes it essential that there should be no abridgment of the right of wage earners and producers, to organize for the protection of wages and the im- provement of labor conditions, to the end that such labor organiza- tions and their members should not be regarded as illegal com- binations in restraint of trade. " We favor the eight-hour day on all government work. " We pledge the Democratic Party to the enactment of a law by Congress as far as the Federal jurisdiction extends for a general employer's liability act covering injury to body or loss of life of employees. "We pledge the Democratic Party to the enactment of a law creating a Department of Labor represented separately in the President's cabinet which Department shall include the subject of mines and mining." Cancellaeitts. The office of Lord Chancellor existed in England under the Saxon Kings, prior to the Norman Conquest of A. D. 1066. He was also Percenter or Speaker of the House of Lords. It was taken from early Roman History, when the " P^raetor urbanus " and " Prsetor Peregrinus " exercised functions and powers of a similar character. The Roman Corpus Juris Civilis, as ulti- mately compiled by the Emperor Justinian, in the Code, the P'andects and otherwise was probably the most comprehensive and able body of law, ever compiled. It was the basis of the Code Napoleon and interpenetrated all European Codes and' even the English Common Law (except the Russian) for centuries, up even to this day. From A. D. 43 to A. D. 403, England was in the possession of the Romans and governed by Roman, laws and customa ! ' ; ' ; i ' 8 Beief on the Whit of In junction, Etc. The Lord Chancellor with the early Norman Kings, was not a Judicial Officer. He was the confidential political adviser of the king, after the chief Justiciar, he was an ecclesiastic, the Lord Keeper of the Great Seal and of the King's Conscience. Equity Jurisprudence and the English Court of Chancery and the Law of Injunctions having been evolved and developed mainly from the rescripts or edicts of the P'rsetor and the Roman Corpus Juris Civilis; it is expedient to state summarily the component parts of the Koman system of law. The first Roman Code, after the Laws of the Twelve Tables, was compiled under the Emperor of the West, Theodosius the Younger, in the year A. D. 438, called the Theodosian Code. But the Justinian Code compiled by the learned Tribonian and his associates, A. D. 529-534, under the Emperor of the East, Justinianus Elavius Amicius, was the most celebrated and au- thoritative compilation of the world renoAvned " Corpus Juris Civilis." It consisted of : 1. The Institutes or elementsi of Roman Jurisprudence. 2. Digests or Pandects, being selections from the writings of eminent lawyers, Responsa prvdentum, fifty books. 3. Constitutions of the various Emperors. 4. The JSTovels or new constitutions of Justinian. The Roman Laws of the twelve tables on wood, brass or ivory were anterior to this era. It should be borne in mind that the art of printing was not invented until nearly fourteen hundred years later. The Civil Law prevailed in Englaiid in : 1. The Ecclesiastical Courts. 2. In the Admiralty Courts. 3. In Military . Courts. 4. In the Courts of the two Universities. 5. And more or less in the Court of Chancery. The study of Equity Jurisprudence from the early Civil Law of the Romans to the clerical and lay Lord Chancellors of Great Britain down to this country in the State of New York and other States, under the celebrated Chancellor James Kent (author of Kent's Commentaries) and Rieniben H. "Wialworth, is intensely interesting to the legal student and to lawyers. .i. By William Baenes, Se. 9 It has been said that Rome reigns throughout the world by her reason, after having ceased to reign by her authority. 1 Kent's Com-m., p. 515. The Romans were the greatest people on earth for thirteen or fourteen centuries. Id. The Pandects are the greatest repository of sound legal prin- ciples affecting the private rights and business of mankind that has ever appeared, in any age or nation. Id.^ p. 5-il. The Labor Unions have taken up the Political sword; they should be sharply taught that it is a two-edged instrument. Instead of their Gompers and Mitchells dictating and con- trolling legislation and Governors and Presidents, they should be compelled to become incorporated, and to be regulated by law, and to be " fenced in," and confined to the legitimate, beneficent and legal purposes originally intended for ^ch associations. They should not be allowed to prepare and organize practically a war fund, in order to oppose an armed force, with " pickets " and " sentries " and a gwo^-military organization, ready to sup- port Gompers and Mitchell with real Martial Law whenever they choose to declare it, and to issue their informal but positive Writs of Mandamus and Injunction and secret orders, unknown to the American ideas of government, and in defiance of the regular and legal authorities. President Washington's method of dealing with the " Whisky " insurrection in Western Pennsylvania in 1794, should be an ex- ample, to be imitated in all eras of the Republic, when force and mobs are opposed to legal officers. He issued his Proclamation, and then put himself at the head of an irresistible armed force, and the rioters were squelched and siubdued and never gathered to- gether again up to date. ' Labor Unions do not favor a large or efficient Army or Navy or State ]!^ational Guards for the reason, as any school boy able to spell " baker " could tell you, that they desire (like Napoleon) always to have on hand, a larger mob and rebel force of armed men at the strategic point, than the constituted and regular au- thorities can concentrate. In New York State, I think that it 10 Beiep on the Weit O'F Injunction, Etc. became necessary to pass a law forbidding Labor Unions from expelling and punishing members, for enlisting in the National Guard of the State of New York. Now can any business man or honest Democrat vote again for a man so lacking in political foresight and moral honesty, as to fight a presidential campaign on the self-evident absurdity of a half-dollar dollar? Who knows, if he should be elected, when he will return to his first love, with insane and stupid devotion? Can we afford to run such a terrible and monstrous risk ? Where is the " Lloyds " or Casualty Insurance Company which will in- sure against this casualty ? True, Bryan returns to sanity instantly when subscriptions to the " Commoner " are wanted. No half-dollar dollars are then advocated at "Fairview," or when certain Christian Association ; Lectures are to be paid for. Then, he is a strong Gold-dollar Man. As the Stpaniards say, the Labor Union leaders are apparently undermining regular government by the legal and constitutional ' authorities " Foca a Foco," and trying with all their resources to increase their own powers to such a degree as to initiate an autoc- racy, of irresistible autihority. Mr. Justice Brewer said, in an address before the State Bar Association, at Albany, in 1893 : " It is not in the interests of liberty — ■ it is not in the interests of the individual — it is an attempt to give the many a control over the few — a step toward despotism. If the movement suc- ceeds, let it once be known that the individual is not free to con- tract for his personal service — that labor is to be farmed out, by organizations, as -to-day by the Chinese Companies ; and the next step will be, a direct effort on the part of the many, to seize the property of the few." (Appendix No. 78.) Members of Labor Unions! — Do you not know and feel in. your hearts and consciences, that when you assume temporary owner- ship and control over property not your own, or when you destroy the same, you are really guilty of quasi robbery ? The " Road Agent," takes entire possession of the property of his victim, at the point of the pistol; you take temporary posses- By William Baenes, Se. 11 sion of or destroy the property of your victims by intimidation and force, sometimes by arson and murder. Are you excusable in the sight of God or man, or of your own sense of right. and wrong? Do you not know that at a coconspira- tor, you are responsible both civilly and criminally for the acts and crimes of your coconspirators? (See the Appendix, ISTos. 63-T2.) District Judge Jenkins says : " Violence and Outrage. Arson and Murder, have been associated with the strike, as it natural and inevitable concomitants. No strike can be effective, without compulsion and force, that compulsion comes commonly through intimidation. "A strike without violence, would equal the representation of the tragedy of Hamlet, with the part of Hamlet omitted." (Ap- pendix, No. 75.) Abraham Lincoln once closed the Bible, and all other arguments in defense of slavery, by the terse, unanswerable, and really self- evident proposition, that : " If slavery is not Wrong, nothing is Wrong." Now, what honest and conscientious man can, either alone, or in combination with others, assume possession and con- trol over the property of another person or corporation, to which he has no pretense of any title ? Is he not a quasi robber of other men's property? Is he not violating the Aequitas of the Roman Laws, two thousand years old, and the principles of Natural Law, Justice, Equity and Good Conscience ? Does he not know that he is doing wrong in the sight of God and man ? The Democratic Party viewed as a conglomerate body, before the Eebellion had un-conscienceized itself, by defending the morality of the existence of Slavery and its extension to new states and territories, and even into the free states by the Dred Scott decision of Mr. Justice Tawney. For the maintenance of their false and unjust principles and for the dissolution of the Union and the establishment of Slavery as a perpetual institution under the Montgomery constitution. 12 Bbief on the Writ op Injunctioit, Etc. the rebel states caused the sacrifice of six hundred thousand pre- cious lives — lost to our country and the world — and the expend- iture of several billions of hard-earned money, sunk forever. These moimtainous crimes of the Democratic Party can never be effaced from American History or Memory. Oblivion, how- ever much we may strive, can never blot out the stubborn facts. The graves are there — the money is sunk forever. If modern science or Original Research Schools could invent some delicate instruments, by which the moral worth, intelligence and patriotism of citizens could be weighed accurately, it would be found that, on the average, one million of Eepublicans would considerably outweigh one million Democrats, in mind, education, intelligence, morality and patriotism. That is why the Eepub- lican Party carries elections. Whenever this status is reversed, the Democratic Party (if it is in existence) will, and should win victories over their opponents. How senseless and uncivilized are the " Lodge " terms " Fair " and " Unfair " goods and materials, as if the stone and granite hewn and shaped by nonunion labor was tainted and " tabooed " by their hands, which are as clean as those of Gompers himself. One would think that the wild Irish " Koms " who fought 01ive«r Cromwell had emigrated to America with no trace of improve- ment since those semi-barbaric days. Is not the honored title of American Citizen good enough to live and die by, in any part of the world, without having the " Union Label "^of a Gompers' Slave blazoned on one's forehead? All patriotic, honest and " desirable " citizens always consider themselves to be under a " Perpetual Injunction " to do right, obey the laws, and commit no outrages or crimes against their fellow citizens, either in person or property. Labor Unions are a constant menace to executive, and even Judicial Officers and jurists, as well as to all Legislative Officers, always endeavoring to illegally constrain or intimidate them in the honest and equable performance of their official functions and duties. They even impudently ask to be exempted, as a special class, from the operation of certain general laws. Many of the By Wilxiam Baenes/Se. - 13 existing unjust laws in favor of Labor Unions would not have been passed but for the threats, menaces and intimidations of the Labor Unions. Gompers and other Labor agitators emigrated to Mr. Charles E. Littlefield's Congressional District in Maine and made strenu- ous but ineffectual efforts to defeat his re-election, because he had not voted in Congress to suit his Imperial Majesty. Does Gomp- ers suppose that he can make eighty millions of brave and intelli- gent Americans " Hold up their hands " at any time and for any purpose when he issues his " Ukase " orders ? Notwithstanding the numerous Law Books on Equity Juris- prudence since the Theodosian Code, A. D. 438, dovm to date, it would seem that in the great minds of Gompers and Debs a new Law Book should be published. Allow me to modestly sub- mit for their consideration the following Title: "THE LAW OF THE WRIT OF INJUl^CTION AND CONTEMPTS OF COURT EDITED BY LoED Chanoeli^ob Samuel Gompbes And annotated by the Hon. John Mitchell, Eugene V. Debs, Frank W. Phelan, Abner D. Hayward, William Jennings Bryan and Others." Free to Members of Labor Unions and Voters for Bryan only During the Campaign. Published by the " Com- moner " at "■ Z/n-Fair View," Lincoln, Nebraska, 1908. Perhaps the celebrated law schools of "Harvard, Yale and Columbia will compete sharply for the new Professor of Equitable Jurisprudence. Shades of the mighty and learned Lawgivers of the World, do you recognize as an equal, Samuel Gompers for twenty-six 14 Beief on the Weit of Injunction, Etc. years a cigarmalcer and Labor Agitator in his attempts to per- fect the delicate subject of the Laws and Customs of Equity Juris- prudence, governing the Writ of Injunction and the Law relating to Contempts? Are the names of Moses, Solon, Lycurgus, Plato, the Emperors Theodosius, and Justinian, the Reviser Tribonian and his asso- ciates ; the authors of the Code Napoleon, Edward Livingston of !N"ew York, compiler of the Louisiana Civil Code; of John C. Spencer, author of the celebrated Revised Statutes of the State of New York of 1830'; of D'avid Dudley Field, compiler of the New York Code of 1848 ; — to be superseded by that of Samuel Gompers, Lawgiver, in 1908 ? If it was not so serious a matter it would certainly be ludicrous even to ask such a question. The Groldfield rioters in Nevada cursed the President because he ordered United States soldiers to maintain order and suppress mob law and rioting at the mines, practically claiming that they only, had the right to declare Martial Mob Law, to destroy Mining and other property 'and to shoot and maim nonunion miners whose only crime was a willingness to work hon«stly for their own sup- port and that of their starving families. Can such men be trusted to make Laws and possess political power over the property and lives of their fellow citizens ? The strange anomaly is now preseaited that the Slave. States have practically more Political Power than they had before their unsuccessful war on the Union. Verily, the Northern States are patient, and too magnanimous and' generous in their yield- ing to this unjust and really unconstitutional usurpation. The Slave States use this unjust and unfair advantage, in always voting for Democratic Presidents, whoever or whatever they may be, and apparently would vote for even that celebrated gentleman whose tail has not as yet been ^iminated, if he had the r^ular Democratic Nomination, By William Babnes, Se. 15 But for this stupid, blind, muddlet^headed vote of the Rebel and Slave States for the third time for Bryan, he would have very iew votes in the Electoral OoUege. So long as the South, with half its citizens unconstitutionally disfranchised, foolishly votes solid for the Democratic ticket, the North should also wisely vote solid for the Kepublican ticket. Until the chancellorship of Sir Thomas Moore (A. D. 1530), under Henry the Eighth, the Lord Chancellor was generally an ecclesiastic - — a Bishop or an Archbishop. Under Henry the Sec- ond the Chancellors' Judicial functions were regularly established. When the Aula Eegia was abolished (a tribunal which traveled with the king) the three highest English courts were orgaiuized, the Court of Common Pleas, the King's Bench and the Court of Exchequer, with the Court of 'Chajicery. These supreme tribunals existed in England until the Judicature Act of 1873 (taking effect in 1875) abolished them, and established the "Supreme Court of Judicature," with all the powers and duties of the four old high courts. The State of New York had a Court of Chancery until it was abolished by the Constitution of 184:6 and the Code of 1848, James Kent (au.thor of Kent's Commentaries) being its most dis- tinguished Chancellor. New Jersey also had a Court of Chancery and a Chancellor, and it continues, I think, up to the present day. Louisiana from its French and Spanish rulers was governed by the Roman Civil Law, which continues, I think, up to nearly the present date. Besides the Writ of Injunction, the Court of Chancery issued other important writs. The Writ of Mandamus. The Writ He Lunatioo Inquirindo. The Writ of Ne Exeat Eeguo. The Writ of Habeas Corpus. The Writ of Quo Warranto. The Writ of Scire Facias. The Writ of Probibitioji, eto, 16 Brief on the Wkit of Injunction, Etc. The Writ of Injunction has been for centuries the right and "strong" arm of Equity Jurisprudence. Lord Oampbell (the accomplished author of the lives of the English Lord Chancellors and Chief Justices) very aptly termed it the "Artillery " of the Court of Chancery, "^(y^, the present Lord Chancellor, Samuel Gompers (an English Cigarmaker) proposes to "spike " this " Artillery " and deprive the Court of its strongest arm for the enforcement of Justice and Law and Order. It should not be forgotten that the Union Labor leaders, who are so noisy and even blatant about " Grovemment by Injunction " and no Injunction to be issued except after notice to the de- fendants, are the very men who themselves practically issue ex parte Injunctions, with and without notice, restraining tens of thousands of Laborers, against their will, from working and forbidding others from working who are willing and desirous of working, who issue primary and secondary " boycotts " against men better than themselves, who unlawfully set " sen- tinels," " guards " and " Pickets " around other peoplei's prop- erty and intimidate and terrorize nonunion workers and their families, and who now and then commit arson and even murder itself, and who practically declare " Martial Law " over States and Territories and nnllify both State and National authorities and who scream themselves hoarse if State or United States troops are ordered by the proper authorities to forcibly preserve order and disperse Rioters, as Washington did in 1794 in P'eimsylVania. Shay's Rebellion in 1786-87 was occasioned by 'populai- dis- content with taxation and scarcity of money and involved about "2,000 insurgents. Shay's followers endeavored to gain possession of the Springfield Arsenal, Massachnsetts. Fourteen of them were captured and sentenced to death, but afterward pardoned. In the Whisky Rebellion in Western Pennsylvania, caused by an U. S. Excise Law imposing duties on distilled spirits, Wash- ington called out 15,000 troops and, according to my recollection of the history of the event, wished to command the troops in person, if armed resistance was offered to the troops. Henry Cabot Lodge says; Washingtcin would fain have gone himself in command to. the army', but he felt that he could not By William Babwes, Se. 17 leave tke seat of government so long vs^itli propriety.- He went as far as Bedford, vrith the troops and tlien parted from them. Life of George Washington, by H. 0. Lodge, p. 125. Traveling to Pittsburgh on foot, especially in winter, by the troops was a con- siderable task in those days. When have Labor Unions or their leaders paid any regard to the general welfare of the people ? In John Mitchell's coal strike, in the year 1892, my home in Albany, with zero weather or below, was cornered for coal, only one-quarter of a ton being procurable at one time and then only as a special and personal favor. Mtohell apparently did not care whether men, women, children and invalids were frozen or starved if he could show that his decrees were more potent than either the State or National laws, or Governors, Sheriffs or Presidents. A qxiasi rebel, he was treated with by the representatives of the American people as an equal and not as a criminal. Who has forgotten the lawlessness at Homestead, Penn., when the " Molly Maguires " ruled the mining regions of Pennsylvania by force and mob law for weeks ? Who has forgotten the blowing up of a railroad station filled with nonunion laborers in Colorado during a mining strike a few years ago? Does not the blood of Governor Steunenberg of Idaho call to heaven against the Western Federation of Labor and its hired murderers who killed him simply for faithfully doing his duty as Governor ? In the Cceur d'Alene cases Judge Beatty says that the non- union miners had been ordered out of that Mining District, and that men escaping over the mountains, in the snow, were attacked (notwithstanding the injimction) by the striking miners, and that seventy men were shot down or drowned in the river, save a few who escaped back into the snows of the mountains ! 10 Political Science Quarterly, pp. 193-194. . In the " Debs " strike at Chicago, 1894, over a thousand freight cars were burned, and many lives were lost ! William H. Dunbar, 13 Law Quarterly Eeview, London, p. 367. 2 ■ " ■ 18 BiEIEF ON THE WeIT OiF INJUNCTION, EtC, " It is -well in such a crisis that the American people should be reminded that this is a government of law, and not a tumultu- ous assembly, controlled by one spirit today and by another tomorrow." District Judge Phillips, United States v. Elliott, 64 Fed. Eep. 35. Is it safe to create new cabinet or other officers to increase the power of men so cruel and murderous under the pretense of their being " friends of Labor " or that they have the " Union Label " of Slavery branded on their foreheads and their American citi- zenship surrendered to a Boss Labor Agitator ? Is it not humili- ating to a free American citizen to see the two great Political parties of the country practically " Held up " by these " Road Agents " and commanded to " Hold up their hands " and deliver their principles or have the " Big Stick " of the Ballot Box ap- plied to their tickets at the polls ? I am rejoiced that the Republican Party (that I love so well) heard the highwaymen and calmly listened to their arguments but flatly declined to " Hold up their hands " or entirely sur- render their principles. The Democratic Party, used for years to the autocratic slavery of John 0. Calhoun, Robert Toombs, Hangman Poote and Jef- ferson Davis, rushed into speedy compliance, and Bryan fairly dislocated his shoulders by jerking up his arms so suddenly and handing over all the principles that he had left in his pocket, and promising to do anything and surrender everything if only the auctioneer highwaymen would say just what their next addi- tional demand would be,, for their special class, against the com- bined interests of all the rest of the people. When strikers use force they should, to save the effusion of blood, always be met by an unquestionably superior force, as Washington met the Whisky Insurrectionists in Western Penn- sylvania in 1794. The government should never be overawed or overpowered by any mob or insurrection of whatever nature. It is time that the authorities call a halt on cuddling and coddling, wineing and feasting men who parade in the guise of friends of Labor, and rebel against the Courts and constituted and regu- By William Baektes, Se. 19 lar authorities. The crime of High Treason has not as yet become entirely obsolete. The city of San Francisco, under a Schmidt (Tweed?), has taught us what kind of a government Labor Unions did give, and would give, the people. The horrors of the Trench Eevolution of 1793, although pro- voked by centuries of cruel oppression, taught the world what the mob could and would do when given the reins of power. The Sans Culottes were more cruel and heartless than even the Bour- bons had ever been. Are our Gompers, Mitchells, Debs and Haywards . sowing the seeds of another French Eevolution in our happy and peaceful country? Are our Kobespierres, Cantons and Marats trying to supersede and over.throw the Courts and Law and Order, and establish their " Jacobin " secret societies as the Supreme rulers of these United States ? These agitators are mos'tly foreign bom, descendants of the " commimos " and the lowest orders in all the cities of Europe. In every lawless strike, what a disproportion- ate number are naturalized or unnaturalized foreigners ! The Labor Unions, with their well-paid lobbyists, " walking delegates " (not always immune from bribery) and idlers, besiege nearly every session of a State or National Legislature asking, begging, threatening for more and more special laws in their own favor and against the best interests of society. One demand granted affords only a platform on which to rest for new and further demands at the next session. So-called " Labor " is never satisfied, whatever laws may be passed for the special benefit of their Unions; the demands for more class legislation are increasingly incessant and legislators are fairly hounded in Legislative Halls, at home and everywhere with incessant petitions, threats and menaces, until their con- tinuous cries have become a nuisance. Kier Hardie, M. P'., is now in this Country. In a recent address to the Central Federated Union (Labor) he advocated the election of Eugene V. Debs (convicted) to the Presidency, and as a second choice "William J. Bryan. All the most objectionable schemes of the English Labor Party are soon copied in this country. As indicating their plans, Mr. 20 Beiei' on the Wbit op Injunction, Etc. Hardie said : " We in the old country, my friends, have realized ' that labor gets only what it fights for, and we are in politics as a big militant fighting organization, working for the coming of the time when the working class shall occupy its rightful place as the ruler of the nation and the maker of the nations laws." The Honorable Kier Hardie, M. P., in this speech in this country, as the saying is, " Let the cat out of the bag " pre- maturely. Let the American as well as the English People, be now warned and on their guard. " Jack Cade " in a new form has reappeared on earth. Gompers-ism or " Organized Labor," as now explained and interpreted by the great English Labor Leader, means sim- ply and only, that it shall become " The Buler of the Nation " and " The Maker of the Nations Laws." Are the eighty millions of American citizens as yet quite ready to submit to the absolute sovereignty of the five millions ? This is what Gompers is struggling for, in this country, with Bryan's aid. He not only wants to spike the " Artillery " of the Courts as a first step, but then, as Hardie says, " To become Ruler of the nation and the Maker of the nation's Laws." ^Patriotic Americans! do you consent? Shortening the hours of labor, if the additional leisure time was not employed in drinking and gambling saloons, is undoubt- edly for the public benefit. .When I was a boy the hours of labor were from 6 a. m. until 6 p. M., with an hour for dinner. I never heard a grumble. I have in my profession often worked longer than that, and now, sailing along in the middle eighties, I envy no man his bodily strength and vigor. So-called " Organized Labor " does not furnish all the Laborers in the United States. "Unorganized" Labor and the farmers and mechanics are greatly more numerous. Too many laws have already been passed with the " Gompers Big Stick " over the heads of Legislators for the country's good. By William Baenes, Sb. 21 WLat right have "Labor Unions" to dictate the number of apprentices in any trade? It is for the common interests that there should be as many skilled mechanics and laborers as possible. Suppose the Bar Associations should ask a law allowing them to dictate how many students should engage in the study of the law. The same as to Physicians and other employments. The natural laws of supply and demand should be allowed free action, and such matters will regulate themselves for the common benefit. It seems almost childish simplicity on the part of the Gompers, Mitchell, Debs and Hayward dictators to suppose that the Ameri- can people are going to consent to notice being given before an ex parte preliminary Injunction can be issued, so as to afford a convenient opportunity to the irresponsible mob to commit ir- reparable damage, dynamite a bridge or station, or flood or dyna- mite a mine, with or without being filled with nonunion laborers. Like children, they ask for the moon, and when we do not give it to them we are all denounced in concert as " Enemies of Organized Labor," " Scabs," " Eats," etc., and we are to be persecuted and " boycotted " primarily and secondarily, with all our friends and even our political party. Probably these gutter terms never originated in this country. They sound so un- American and indicate such a law stratum of humanity. No other plan could be so well devised to really make us all actual and real enemies of so-called " Organized Labor." Gompers and his associates should never be permitted to hold any office under any State or the Fnited States government. He admits that he owes his supreme and controlling alkgianee to a secret society unknown to the Constitution and Laws. He thus becomes a voluntary outlaw. Bryan and Gompers want a new Cabinet officer created, to be called the Commissioner of Labor, vnth a seat in the Cabinet. Gompers or Debs or Hayward or Mitchell probably feel that either of them could quite comfortably fill such an office, and their obedient master, Bryan, would, if elected, probably bestow the office upon one of them. The others could be admitted ex gratia, 22 Beief on the Weit of Injunction, Etc. as Counselors at Law of the Supreme Court and thus be qualified to fill the four Justiceships of the Supreme Court of the United States soon to become vacant. Where would the mass of Ameri- cans be then who love their country and desire the welfare and prosperity of all the people instead of that of any particular class of citizens ? The head of " Organized Labor " might also be declared permanent President and soon accomplish the general ruin. There would be no persons or corporations then, with the means of paying either high or low or any wages to " Organized Labor," and the Fool's Paradise would be located in the fifty states of the former blessed American Union. A few days ago I was looking from the State Capitol at Albany on three hundred men and two steam excavators digging out the foundation and basement for the new State Library. A bystander, filled with Labor Union heresieis, remarked to a friend. " What a pity it is that the steam excavators are allowed to operate, thus depriving so many laboring men of a chance to work." " Yes," replied his friend, " and if the workmen only used table- spoons, instead of shovels, how much more work there would be for the laborers to do." This shows the utter absurdity of the barbarian enmity of some ignorant laborers to any labor-saving machines, which are so beneficial to the prosperity and welfare of 'the masses of people. —Baron Steiglitz said to me once at St. Petersburg, in Russia, in 1872, speaking and philosophizing on the Russian people at that time : " The best talent and the highest ability and charac- ter among the Russian people naturally gravitate toward the throne." So one could say of a different class. All the most ignorant and most degraded workmen and " black hands " naturally "' Gravitate toward the ranks of ' Organized Labor ' and secret societies," and these elements in any crisis assume the lead and overpower the better elements of the mass of laboring men, or- ganized and unorganized. It is certainly humiliating to a proud, patriotic American citi- zen of the twentieth century to think that the Roman ^quitas By William Baenes, Se. 23 and the Equity Jurisprudence of centuries as it has come down to us in the able Codes of the Emperor Theodosius, the younger, the Emperor Justinian, and the learned Jurisconsult and law- yer, Tribonian, and his associates in the Corpus Juris Civilis of the Eomans; of Lord Chancellor Eldon, of Edward Lord Chancellor Thurlow and Lord Chancellor Brougham of England, and of Chancellors James Kent and Eeuben H. Walworth of New York, and Mr. Justice Joseph Story of Massachusetts, should be submitted by the two great political parties of this country to the revision, amendment and correction of the English cigarmaker, Samuel Gompers, of Eugene V. Debs, Labor agitator, striker, and of John Mitchell, permanent Labor agitator. Where are we drifting? Would it not be well to cast anchor, take soundings and consult the charts of safe navigation ? The Honorable Richard Pearson Hobson of Alabama, at the recent Democratic Convention at Denver, sounded an alarm to the American people that a war was imminent with Japan. If Mr. Hobson had studied more closely the dangers existing at home, he would have discovered that there is considerably more danger of insurrections by Anarchistic Laborers in our own coun- try than of any war with Japan. If we do not call a halt in this process of annually conceding more and more to the unreason- able demands of " Walking Delegates," we will finally be con- fronted with demands at which the unorganized masses of the American people will rebel, and force may have to be called into action. Japan, too, has or will have enough to do at home in settling the risings of her ovm people for a " Japanese Eepublic." Do the Bryan-Grompers shouters cite any single case anywhere when the Writ of Injunction .was improvidently issued by any State or l^ational Judge ? I never heard of a single case. The Writ of Injunction, by the rules of the Court of Chancery estab- lished by able and conscientious Chancellors administering Equity Jurisprudence for over 500 years, is only issued to prevent a wrong or a crime, never against doing right. Why do the Labor 24 Beibf oiT THE Weit of Injunction, Etc. Unions desire imnnmity to do wrong and to commit crimes and to do irreparable injury to property rights? It is an old couplet, but appropriate to the occasion — " No rogue e'er felt the halter draw. With good opinion of the Law." It is generally supposed that slavery was abolished by Abraham Lincoln's War Emancipation Proclamations and by the thirteenth, fourteenth and fifteenth amendments to the Constitution. But of what avail is the abolition of African Slavery if insolent Feudal Labor Lords are allowed to own, and auction off, hundreds of thousands of Labor Union votes to the highest bidder? Notwithstanding the ill-advised one-majority opinion of Mr. Justice Holmes, it is evident that the " Grandfather " laws and Constitutions of the Southefm States are plain violations and evasions of the Lincoln amendments to the Constitution. Their constitutionality seems to be hardly arguable. How Lincoln's incisive logic would batter down all these evasions of his amend- ments. Even a justice of the peace could not be deceived (except willingly) by such flimsy and transpai-ent devices; much less should a respected and revered Justice of the Supreme Court of the United States, with an ancestor justly famed and loved wherever there is a breakfast table, and over more than one con- tinent. Have not these various "Grandfather " State constitutional amendments and statutes practically accomplished the disfran- chisement of the African race in nearly every Slave State ? Is it not a well-established legal axiom that when an act accomplishes a certain end, it is held that the actor intended to accomplish that end ? Are not all these " Grandfather " acts imconstitu- tional? Can the Lincoln amendments to the National Consti- tution be thus repealed and nullified ? Will not onr Patron Siaint rise from his grave at Springfield and with his unanswerable logic nullify such nullification ? There should be no tricks of legerdemain in constitutional construction. Other cases should be argued before the Supreme Court and the ill-advised Holmes decision be reconsidered and reversed. By William Baektes, Se. 25 The fifteenth Amendment to the National Constitution, pro- vides as follows: "Article XV, Sec. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." Let us state this matter syllogistically. 1. All state Constitutions, amendments thereof and state laws, that deny or abridge the right to vote on account of race, color or previous condition of servitude are Unconstitutional under the said fifteenth amendment. 2. All " Grandfather '' or similar Constitutions, amendments thereof and laws do in fact deny and abridge the right to vote of Africans, on account of race, color and previous condition of servitude and were enacted on purpose to accomplish this object. 3. Therefore all these Constitutions, amendments thereof and laws are unconstitutional. Is not this logic as certain and irresistible, as death itself ? Then again Article XIV, Sec. 2, of the Constitutional amend- ments, providing for proportionately decreasing the representation in the House of Representatives and the Electoral College, etc., of states that deny the right to vote to any of its citizens — has never as yet, been enforced as provided in said Article. It is the plain duty of the Eepublican Party to enforce this provision of the ISTational Constitution, as a matter of simple Justice to the Northern and Western states. Almost fifty years after the War, why will the Rebel States continue practically to vote for slavery and the "Lost Cause," and for Bryan and his half dozen "Lost Ccmses? " Why will not one of the Southern States, say the progressive " Empire State " of the South, — Georgia, now avail itself of this very strategic opportunity of voting for Judge William Howard Taft and " Gained " instead of " Lost Causes " and take a seat in the new cabinet and participate practically in the govern- ment of their own country? 26 Beibf on the Weit of Injunction, Etc. Do not her people Know that the Tillmans and Vardemaxis are hindrances and obstructions to the new, entrancing and lurid prosperity which beckons to the South from so many directions ? The Southern States have already shown more progress than the ]^orthern States in the advancement of Sobriety and the outlawry of Drunkenness. Why not continue on this road of advancement ? Why do the Slave States continue, year after year, to vote the Democratic ticket, whoever may be the candidate and whatever may be the platform ? Plainly and only because they sympathize more with that Party than with the Kepublioau Party, which abolished slavery and preserved the Union. They say that the " War is over." Is it over, as long as the Slave States continue blindly to vote the Demo- cratic or Eebel ticket ? Is it not childish to still attempt to deny or falsify the actual, stubborn facts of history ? " IsTot a cetnt for Tribute, but millions for Defense," so America said to the Algerine Pirates through Commodore Decatur in the infancy of the American Navy. The grand old party of Abraham Lincoln may be convinced, but cannot be coerced, as Washington said when he put himseK at the head of 15,000 troops to suppress by force of arms the " Whisky " rebels of Western Pennsylvania in 1Y94. Why should labor mobs be allowed to declare and maintain practical " Martial Law " at their own sweet will and pleasure and establish armed " Pickets " over property which they do not own and " Boycott " or establish, as the Scandinavians say, a " Blockade " against imaginary enemies of Labor ? It should never again be suffered on American soil, aa long as a single son of our Revolutionary forefathers survives to defend American property rights and American Liberty. It is a disgrace to our country that it has ever been permitted by cowardly and recreant public offici'als. Let them remember the Father of his country, who had only one answer to armed mobs, using the argument of force. It was the argument of an overwhelmingly superior force. Even when the Denver Democratic Convention passed a Reso- By William Baenes, Se. 27 lution favoring additional Agricultural Colleges, it was met with the maledictions of some of the ignorant labor leaders as increas- ing the number of experts in the country on this subject. Every judicial officer in this country, from the Justice of Peace to the Chief Justice of the United States Supreme Court, every Lawyer and Law Student up to the Elihu Roots and Joseph H. Choates and John C. Spooners of our Profession should unite in an universal " Union " to annihilate the " Jack-Cade " doctrines of the Gompers-Mitchell-Debs-Hayward-Bryan alliance, for the destruction of American personal Liberty and the right to hold undisturbed one's own, hard-earned property. ]S[o lawyer should touch a. Bryan ticket, disgraced by its cowardly surrender to " Gompers and Co." at Denver by the Democratic National Convention. Gompers verifies the ancient maxim — "Ne sutor, ultra creptdam." The Lawyers, the Judges, the farmers and unorganized Labor- ers must unite as the saviors and preservers of the country and of American Liberty. Jack Cade, when he wished to initiate mob law, wisely said : " We must first kill all the Lawyers." " Cade. ' And henceforth, all things ' shall be in common. Away, burn all the records of the realm. " My mouth shall be the Parliament of England." Shakespeare, p. 50>2; Hen. VI, Part 2, Act 4, Scene 2. Let all the Lawyers rally when their Profession is attacked by the assault on the courts, not for selfish, but patriotic purposes. Law and order are attacked. The army of attack is mostly foreign, admitted to American citizenship only to betray the sacred trust, and in order to establish the reign of Anarchy and a per- manent French Revolution. No wonder a " business" man declines to touch a Gompers and Bryan ticket and unite in an Union to protect their well-earned property rights. The Democratic Candidate for President reads " Bryan," but the real candidate is " Gompers," as the power be- hind the throne. 28 Brief on the Writ of Injunctioit, Etc. The Union Label is attached to Bryan's front and rear and sides, and if he could be examined, we could probably see it tattooed all over his body. No one who believes in American Liberty and Independence can be thus betrayed with this badge of slavery and the surrender of all individuality and independence. Octogenarians cannot always forget. I well recollect when the only way for a Democrat from the free States to secure the favor of his party was to be a " Northern Man with Southern Prin- ciples," of whom Franklin Pierce and James Buchanan were noted examples. Six hundred thousand lives and billions of money were un- necessarily and wickedly sacrificed to the Moloch of Slavery. Now the sons and grandsons of these Democrats bow down to and worship the Labor Lords as their fathers and grandfathers bowed dovra their knees to Calhoun, To^ombs and Davis. The Labor Union leaders have not shown themselves to be actuated by any high ambition to elevate and improve their own craft. They have- cultivated ignorance instead of intelligence in their members, as was the policy of the slaveholders and the Slave Codes of the Southern States before the "War. The general public welfare does not receive a moment's atten- tion from Labor Leaders, that only, which aggrandizes them and ministers to the soi-discmt advantage of their class, receives any attention or solicitude whatever. A French writer once stated that three elements were necessary for success in life, and they were " L'Audace, L'Audace, toujours L' Audace." Gompers perhaps unwittingly has followed this advice in at- tempting to rule the two great political parties of the country. If he could succeed in his present demands, he would soon demand as the English Member of Parliament advises, that Courts, Sheriffs, Governors and Presidents should be shorn of their power in other ways, so as to allow practically, all the powers of govern- ment, Legislative, Executive and Judicial, to be concentrated in the hands of the secret Labor Lodge, its Walking Delegates and Presidents. By William Baenes, Se. 29 The Democratic Platform states that " Our party has given to the Bench a long line of distinguished Judges." This is uadonbt- edly true, as I can personally testify, New York State alone hav- ing furnished scores of them. In the State of New York, where most of my legal experi- ence was acquired, the Democratic Justices (with the exception of the city of New York) have been able, erudite and judicial in their temperament and learning, and equal to the high stand- ard of the Whig and Republican judges and of a superior char- acter to the ordinary Democratic office-holder. Several of the New York State Democratic judges from the time of the Revo- lution up to date have contributed largely to make the New York State Reports accepted and respected authorities in all the States of the Union. True, all Judges have not in every age been equal in ability and integrity to the duties and obligations of their position. Within my own recollection Tammany Hall and the Democratic Party have furnished us with three Supreme Court Justices (Barnard, Cardozo and McCunn) who were removed from their positions, by the Legislature for corruption and misfeasance in office. And years ago the learned Lord Chancellor Bacon was accused, not without reason, of corruption in office, and the in- famous Justice Jeffries held the celebrated " Bloody Assizes " under Henry the Eighth. But as a general rule the higher Amer- ican Justices are models of honesty, integrity and ability, who discharge their duties to the satisfaction of the people and of their own consciences. The Labor Unions have never been utilized for beneficent pur- poses as originally designed (copied from the Trades Unions of London), for improving their skill and knowledge in their craft for Mutual aid and care in case of sickness and death or other misfortunes, if they had been, their existence and maintenance would be hailed by the whole American people with support and approval. But when their organization is perverted into mere political machines, offering themselves for sale to the highest bidder; used to elevate their leaders into political positions, tp so Brief on the Wkit of Injunotiow, Etc. manufacture fancied grievances; encouraging unnecessary and disorderly strikes, forcing their fellow workmen against their will to join their union and strikes; committing even malicious dam- age and destruction of valuable property, and arson and even murder itself, the American people and all true patriots may well claim that it has not as yet heen demonstrated that their exist- ence is any real advantage to the public weal or to the general interests of the commonwealth. Do the laborers know and appreciate that in the world's his- tory the laboring man has never been so well and agreeably situ- ated as in America at the present time ? Look at history, when for ages the Feudal System ruled over all Europe and the Labor- ers were not much better off than Spartan Helots or Russian Serfs, and were even held in England as " villeins " almost in a state of practical slavery. Blackstone says that " Combinations also among victuallers or artificers to raise the price of provisions or any commodities, or the rate of labor, are in many cases severely punished by partic- ular statutes and in general, by statute Edward Sixth, with the forfeiture of ten pounds or twenty days' imprisonment, with an allowance of only bread and water, for the first offense; twenty pounds or the Pillory for the second, and fifty pounds for the third, or else the Pillory, loss of one ear, and perpetual infamy. In the same manner, by a Constitution of the Emperor Zeno, all monopolies and combinations to keep the price of merchandise, provisions or worhmanship were prohibited upon pain of forfeit- ure of goods and perpetual banishment." 4 Black. Com., p. 160. A conspiracy or combination among two or more persons to raise wages or the price of provisions or other articles of necessity 'was for hundreds of years, by the Common Law of England, a criminal offense and misdemeanor, and punishable and punished as such. Blackstone (A. D. 1765) says: " It is a mejanc^olj truth that among the variety of actions By William Baenes, Se. 31 which men are daily liable to commit, no less than 160 have been declared by the Act of Parliament to be Felonies without benefit of Clergy, or, in other words, to be worthy of instant death." 4 Black. Com., p. 18. Benefit of Clergy at one time extended to all who^could read. Id., 367. Great Britain, instead of establishing our senseless and suicidal policy of ■preventing the emigration to this country of skilled and other laborers, pursued the directly opposite policy and gave lounties to European skilled workmen to settle in England. Blackstone says that to prevent the destruction of home manu- factures by transporting and seducing our Artists to settle abroad, it is provided by statute (5 Geo. 1, c. 2T) that such as so entice or seduce them shall be fined one hundred pound's and be im- prisoned three months, and for the second offense shall be fined, at discretion, and be imprisoned a year; and the emigrant shall also be punished. 4 Black. Com. 160. Contrast their situation with that of the present American citi- zen, who oftentimes, is unappreciative of his privileges and ad- vantages. A recent report by the Board of Trade of London, England, and by the Department of Commerce and Labor here shows that the English workingman is in a better position than his German cousin; while the third comparison of the two countries, made possible by the report of the Bureau of Labor, shows the Ameri- can workingman's social status to be on a plane entirely above that of men engaged in the same pursuits in England and Germany. One of the unexpected revelations of the report is that the family of the American workingman living at home is even larger than that of the German or Englishman. The American workingman's family averages slightly more than five persons, or three children^ to a family living at hoflje, while the German 3'2 Brief o:s the Weit of Iw JuiircTioif, Etc< and English families do not quite average three children living at home> Another is that, although the English have long borne a repu- tation as the greatest beef eaters on -the globe, the American workingman and his family eat a greater amount of fresh and preserved meats than the Englishman. For a family of five, the average American workingman in the building trades will receive as wages $29.76 per week for bricklayers, $19.50 for carpenters, $25.0.0 for masons, $28.00 for plumbers, $18.46 for painters and $10.00 for laborers. In England the wages are as follows: Bricklayers, $9.50; masons, $9.25 ; carpenters, $9.00 ; plumbers, $&.75 ; painters, $8.00 ; and laborers, $6.00. In Germany the wages are as follows: Bricklayers, $6.75; masons, $6.75; carpenters, $6.75; plumbers, $6.00; painters, $6.25 ; and laborers, $5.00. The following list shows the advance in wages since 1893 in twelve trades: In Cleveland The Scale administration, at present Miners $2 00 Carpenters 2 00 Painters 2 25 Blacksmiths 1 21 Machinists 1 94 Brick Masons 4 00 Plumbers 2 80 Hodcarriers 2 32 Plasterers 3 60 Coopers 1 20' Horseshoers 2 50 Lathers 2 00 The following tables show the folly of strikes simply in a busi- ness point of view, for Labor Unions in this country and in Erance: $2 50 ■ 3 15 3 00 3 50 3 25 4 80 4 50 3 00 4 05 2 75 3 25 3 50 By William Babnes, Se. 33 Cost of a Year's Strikes to Laboe IJNioisrs. "According to the report for 1907 of Frank Morrison, secretary of the American Federation of Labor, covering the twelve months October 1, 1906, to September 30, 1907, there were 1,433 strikes during that period among the Labor Unions affiliated with the Federation. The report claims that 1,071 of these strikes were won, 105 were compromised, 6'6 were pending and 124 were lost. Those figures account for 1,367 of the 1,433 strikes, leaving sixty- six unaccounted for. " The enormous sum of $3,090,359 is given as the total direct cost of the 1,433 strikes. Included in this great total of cost are the following strikes and their individual expense, for neither of which any resultant benefit is scheduled : Strikes. Cost. Typographical union $1,468,841 Mine workers 108,712 Granite cutters 18,721 Boot and shoe workers 37,072 Brotherhood of carpenters 82,128 Hatters 15,000 Iron and steel workers 34,039 Lithographers 108,167 Street railway employees 80,117 Total cost of nine futile strikes $1,952,797 " Practically two-thirds of the total strike cost went for nothing. " In addition to the $2,090,359 total cost of strikes in the twelve months, sundry of the unions made donations to other unions to the amount of $199,994." 8 24 Beibp on the Weit of Injunction, Etc. Steikes in Feance. " According to a document just issued uinder the authority of the Government of France, the work people of France lost over thirty- five million working days by strikes in the eleven years 1896 to 1906 inclusive. Here are the figures for each year : Total Year. Strikers. Days Last. 1896 49,851 644,168 1897 68,875 780,944 1898 82,065 1,216,306 1899 176,772 3,550,734 1900 222,714 3,760,577 1901 111,414 1,86'2,060 1902 212,704 4,675,081 1903 123,151 2,441,944 1904 271,007 3,934,884 1905 / 177,666 2,746,684 1906 438,466 9,438,594 Total days lost 35,051,966 The figures for 1906 as compared with 1905 or prior years are startling. The table showing the causes of the principal strikes, the num- ber of workers affected and the total days lost by each strike is remarkable. Total Cause of Strike. Strikers. Days Lost. ]^or increase in wages 301,083 7,517,442 For fewer hours and same wages 220,438 3,843,923 As to time, method, &c., of paying wages ■ 117,650 3,497,674 Against piece work 80,579 1,932,823 Against discharge, &c., of others 38,550 939,662 For discharge of others 32,634 582,623 For or against shop rules 23,630 518,323 As to fines 15,137 238,749 As to conditions of work 10,808 168,600 Against deductions for insurance. . . . 4,404 64,021 As to fewer apprentices 3,001 40,992 Against reductions of wage 2,000 12,845 Other causes ,.,..,,,, 110,477 3,649,633 By "William Bakbtes, Sb. 35 _ It is surprising how few struck — only 2,000 — with reduc- tion of wages as the direct cause. That shows that French em- ployers have heen very loath to lower their wage scales. The strikes in 1906 numbered 1,309, only 278 of which fully succeeded, though partial successes were gained in some others. Most of the strikes were in the textile industry, followed by the building trades and the metal working factories. Details of the 1906 strikes show that the fever has now reached the great corporation and the more important centers of manu- facturing. Workers in precious stones and in chemicals and the tobacco and stone cutting trades did very little striking. Of the strikes lasting thirty days or more, only 5.8 per cent, were successful." One would suppose that the efforts of Gompers to cripple, if not destroy, the efficacy of the Writ of Injunction would have satisfied his demands at the National Convention of the two great Political Parties. But NO, his demands are constantly for More! More! Now the additional demand is to cripple also the existing power of the Courts to punish for contempts by asking for a trial before an- other Justice for contempts committed in facie curiae, and for trial by Jury for indirect Contempts. If any one will carefully examine my brief in the Appendix (number 53—62) he can see how indispensably necessary are the existing powers of the courts to punish for Contempts as the law has been in force for hundreds of years. Modify the existing Law as Gompers and Debs would dictate and soon they and their associates of the blackguard corps would be slinging at the judge in open court their whole Repertory of almost unspeakable names gathered from the purlieus and slum quarters and gutters of the most depraved European cities — " Scabs," " Rats," etc., etc., too low in their origin to soil white paper in the writing. The Laws and Practice as to the Writ of Injunction and as to contempts perfected by the wisdom of celebrated lawyers and judgef for S,0O0 years should not be meddled with or touched 36 Beiep on the Weit of Injunctioit, Etc. by ignorant and profane band's, sMUed only for twenty-six years in handling and manufacturing cigars. Eapalje on Contempts says, " these powers being necessary to the very existence of a court,, the Legislature has no right to take it away, or hamper its free exercise. Sir William Blackstone says : " What Equity is, and how im- possible, in its very essence, to be reduced to stated rules, hath been shown .in the preceding sections." 1 Black. Com. 92. Also : " Equity thus depending essentially upon the particular circumstances of each particular case, there can be no established rules, and fixed principles of Equity, laid down without destroy- ing its very essence and reducing it to a positive law." Id. p. 62. Even laymen will thus see how impracticable, inexpedient and impossible it is to regulate the Writ of Injunction by statutes or codified laws. Mr. Justice Brew r says: " I believe most thoroughly that the powers of a Court of Equity are as vast and its process and pro- cedure as elastic as are the changing emergencies of increasingly complex business, relations and the protection of rights can de- mand." Appendix No. 46. Mr. Justice Blatchford says : " It is one of the most useful functions of a Court of Equity, that its methods of procedure are capable of being made such as to accommodate themselves to the development of the interests of the public in the progress of trade and traffic. Vhi Jus, ihi Remedium." Appendix No. 47. Similarly, the Writs of Prohibition, Habeas Corpus, Ne Exeat Eeguo, Mandamus, etc., cannot be properly regulated by statute law, but only by the experience and decisions of Equity Judges back to the days of Eoman Jurisprudence and the wise discretion- ary judgments of Judges. English and American judicial opinions form more correct standards for ladministering equity and pregerying the ;rights of all suitors in Courts of Equity than By William Babnes, Se. 37 any procrustean statute. Especially is it unsafe for inexperi- enced and nonprofessional men to handle the sharp-edged tools and methods of Equity Jurisprudence by way of new and untried legislation. Lord Coke says that Preventive is preferable to Remedial Jus- tice. 10 Political Science Quarterly, London, p. 197. Let the weit of in junction eemain untouohed, in statu quo, to be issued by the Judges with or without notice, according to the well-established principles of Equity Jurisprudence. Do not attempt to interfere by legislation in any manuer with the ancient and long-established powers of a Court to punish for Contempts, whether in forea curiae or elsewhere. Ko i^eoislation is necessaey on these subjects. Both parties say that they have all due respect for and con- fidence in the courts, but in the same breath (at Gompers' dicta- tion) proceed to recommsind the crippling of their beneficent Equity powers and to deprive them of what Chancellor Kent described as " The Strong Arm " of the court, and Lord Chancel- lor Campbell termed " The Artillery of the Court of Chancery." What nonsense in both Platforms ! Between the " Public-be-Damned " — Commodore Vanderbilt class of corporations and the exorbitant and constantly increasing demands of " Organized Labor " the great middle classes of the nation (upon whom the country must always depend in any great crisis) are crushed between the upper and the nether mill-stones. Grover Cleveland, in his last days proved himself to be greater than a mere party Democrat; he rose to the dignity of a pat- riotic American citizen ready to sacrifice party ties for the good of his country and recommended his fellow citizens to vote for Judge William Howard Taft a Eepublican for President instead of the unsafe Democratic candidate. Let all good Cleveland Democrats follow his example. His support of the Gold Standard and his suppression by armed 3'8 Beibf on the Weit of Injunction, Etc. force of tlie "Delis" rebellion at Chicago in 1894 will ever pre- serve for him bright pages in American political history. The telegram sent by Judge Alton B. Parker to the Democratic JTational Convention at St. Louis in 1904, declining the nomina- tion for President unless tendered upon a gold standard, which apparently was at that time impossible, exhibited a moral cour- age equal to if not superior to the physical courage of the sol- dier on the battle-field, and was an act of chivalry and devotion to principle rarely paralleled in American political life. Why cannot Judge Parker now repeat this heroic act by repudi- ating the attacks of the Denver Convention upon the Writ of Injunction and the power of the courts to punish for contempt. Rise respected judge in your majesty as a loyal lawyer and just judge and repudiate these " Jack-Cade " planks in the Demo- cratic platform. Senator Chauncey M. Depew in a recent newspaper interview at the Saratoga Springs Convention, said of the late Thurlow Weed: " He referred to Thurlow Weed as the greatest of the oldtime leaders, and said he held undisputed sway for thirty years. " He was the greatest leader I have known," the Senator said. " He believed in talking things over with everybody; then, after he had found out what public opinion was, he went ahead and acted accordingly, and did not let his decision be questioned either." Mr. Depew is mistaken in characterizing Mr. Weed as a mere wind-vane. I, his son-in-law, was a welcome daily guest at his table in ~New York city, for over a dozen years, arid thus became more or less acquainted with his political opinions, the trend of his ways and character. In 1842 upon Mr. Weed's first visit to Europe Daniel Webster gave him several letters of introduction to his European friends and one of the salient features of these letters was Mr. Webster's By William Baekes, Se. 39 comment on Mr. Weed's modesty and retiring disposition — almost bashfulness of manner. With all his vigor and leadership, this was a marked trait in his character. Mr. Depew says that Mr. Weed talked with every- body. This was true and with men of all parties and especially with newspaper men and intellectual women; hut meanwhile he was a potent and powerful element in enlightening, guiding and directing public and newspaper opinions in the right direction. He had strong convictions as to public men and public measures. His most distinguishing trait was a fervid and intense patriot- ism and love of his fellow-men. It amounted almost to a passion ; he touched our Eevolutionary fathers in his youth, and drank in, as a drummer boy in 1812, the spirit and glowing enthusiasm of " Seventy-six." He .was an undisputed leader of the Anti-Masonic party, before the Whig Party was fully organized. He knew that Moi^ gan was kidnapped by stealth; imprisoned and then taken out in the night in a canoe on Lake Ontario, weighted and thrown overboard. The story of the Masonic Lodges that he had found a cadaver and dressed it up as "a good-enough Morgan until after election " was a fairy story, a myth, with no truth or founda- tion for its basis. But even intelligent men of all parties still occasionally give it partial or entire credence, — a striking evi- dence of the immortality of error, whenever set in motion. I, myself, drew a detailed affidavit of a man who was one of the party and actually in the canoe from which Morgan was thrown. I well recollect the important and valuable aid Mr. Weed ren- dered to us in the organization of the Anti-Nebraska or Kepub- lican Party at Saratoga Springs and Auburn in August and September, 1854. Thurlow Weed was not a mere machine poli- tician, an arranger of cards for mere political success. His heart yearned for his country's good. He was a natural states- man and a skilled diplomatist both at home and abroad, in a semi-official position. Pea€e to his dear memory. Some young Republicans, that is, young from my point of view, not familiar with the early history of the party and its immediate predecessors, the Liberty Party of 1840i-^1844, and the Free Soil 40 Beief on the Writ of Injunotion, Etc. Party of 1848, with, their devotion to the high Moral Principles of Human Liberty for all mankind, imagine that they are the Re- publican Party and that it was organized and maintained for their personal and individual benefit and attempt to confound the Party with their own individual selves, and consider that it is the duty of the Party to sink even its original principles in order to exploit their special personal fortunes and confound their names as identi- cal with, and representative of, the whole Party, These personal and selfish Kepublicans do not properly repre- sent the original Birney-Van Buren-Lincoln Republicans. The Republican Party has millions of men well qualified not only to understand but to examine and discuss most of the public questions before the nation, seeking for solution at the present time. The more such men the better. There should never be in Republican ranks any suppression of free discussion, or any politi- cal or other persecution for opinion's sake. It is not educational that the Army and Navy land civil service employees in this coun- try should be denied the privilege of free discussion of public questions and measures and, if they vsdsh, " pernicious " activity in politics. The country can ill afford to lose the superior educa- tion and political prescience and good judgment of so many Naval and Military and civil service employees and officers A numerous class of half-disfranchised, hermaphrodite citizens are a great loss to the Commonwealth, ,and tends to create a feeling among them of incomplete American citizenship. Objection is made in certain quarters to " Little Bosses ;" but do not several litl3e bosses represent more accurately the general sentiment of the Party than one Mighty Boss claiming a silent partnership with the Almighty and to represent or misrepresent the masses of the Party ? Each state should dictate its own Platform of principles and its candidates for state offices. It was thus that the Party was organized and has been ruled by its best Presidents, and it can in this manner best preserve its existence, virility and strength. Judge William Howard Taft is well fitted, temperamentally, to fill the exceedingly onerous and responsible office of President of By William Baenes, Se. 41 the TJnited States; he is ahle, equable, intelligent, patriotic, ex- perienced in National Affairs, a superior Lawyer, an excellent Judge, conscientious, honest, reliable, with a keen insight into statesmanship, an erudite knowledge of International Law and, like Lincoln, has the invaluable capacity for indefinite growth and improvement. William Jennings Bryan is peculiarly unfitted to properly fill the office of President of the United States. He is erratic, unbalanced, demagogic, tangental, an indifferent lawyer, with little or no practice in the higher courts except per- haps in his own Will cases, vrith no or but little knowledge of International Law, never a Judge, little experience in govern- mental affairs or of diplomacy, disposed to advocate crude and untried plans of government, pliant to all the unreasonable de- mands of the Labor Unions, ready if elected to again consider his " fifty cents equals one dollar " vagaries and other similar wild schemes or unbalanced theories. He has not as yet really passed the Academic period and arrived at years of discretion. His election would be an impeachment of the capacity of the American people for self-government. Probably the Eepublican Party could not find in its ranks a more fitting candidate for President than Judge William How- ard Taft. The Democratic Party could find in its ranks, both !N^orth and South, East and West, many men better fitted than William Jen- nings Bryan to have been its candidate for President. The Eepublican Party need not be dependent, however, upon any one man for either Presidential or Gubernatorial candidates. The undersigned has written this Paper and Brief himself, for which no other human being is responsible. I do it as a Labor of Love, without compensation, deeming it the duty of someone to " speak out " before we are all of us bound hand and foot to the Gompers chariot of ruin and destruction. As an American citizen settled through my ancestors of six generations of sturdy and honest farmers for nearly three hun- dred years in New England and New York State, and tracing our family name in England back for about four hundred years. 42 Brief on the Weit oe Injttitction, Etc. and about twelve generations more of Liberty-loving, intelligent, middle-class Englishmen to WILLIAM BARNEIS, A. D. 1203, under the reign of King John: — I cannot see the Gompers Impeeium in impekio established in my dear native country -with- out my feeble protest. The satisfaction and delight of Battling for the Right and hit- ting a strong and entrenched Wrong against Humanity squarely in the face is one of the most delightful and exquisite sensations in human existence. I have richly enjoyed this ecstatic thrill in my veins when, in 1844, I joined my fortunes to the weak, friendless and persecuted " Liberty Party," and in 1848 in shouting with the " Free Soil, Eree Speech and Eree Men " Party of that year, in aiding the cause of Hungarian Independence in 1852, and in August, 1854, at Saratoga Springs and Auburn, in helping to organize the Grand Old Republican Party, and in 1865-'1856 in fighting for the Ereedom of Kansas and in joining the Peace conventions for " War on War " at Boston and Xew York, and in advocating the cause of Temperance ever since the year 1842. Present as a Delegate from Albany County, N, Y., at Sara- toga Springs in August, 1854, at the birth of the Republican Party and being of the household of its Eather — The Free Soil Party of 1848 — and of its Grandfather — the Liberty Party of 1840-1844 — and calculating with more or less uncertainty on few, if any, more Presidential elections, I leave this Paper as my earnest and sincere Political Last Will and Testament to my Dear Fellow Republicans, especially those of the earlier, weaker and more strenuous days of our Party, with a warm Adios and this message: Perge atque coepisti. WILLIAM BARNES, Se. 85th Year. Dated September 10, 1908. 0' Conor— Barnes Homestead, On-the^Oliff, Nantucket Island, Mass. APPENDIX, Beiee" on the Wbit of IiirjuNCTio]sr, Boycotts, Steikes, Contempts and the Laboe Unions by The Honorable William Baenes, Se., Counsellor-at-Law, Nantucket Island, Massachusetts. As a necessary preliminary to this Article it seems expedient to define accurately what the Writ of Injunction is, its origin and history as now existing in American Jurisprudence. This I have endeavored to do in such a manner that both lawyer and layman can readily understand its history and the recent decisions on the subject. Even an uneducated laborer can, by carefully perus- ing this Paper and Brief, understand and comprehend the ques-' tion under dis'cussion. What is an Injunction ? (1) "A Mandatory Injunction is one which requires the doing of a particular thing, and which will sometimes change the status, while a Preventive Injunction restrains the doing of the thing and preserves the status until the rights of the parties are deter- mined." Beach on Injunctions, p. 110. I (2) " In a general sense any order of a court which commands or forbids is an Injunction, but, in its accepted legal sense, an Injunction is a judicial process or mandate operating in personam by which, upon certain established legal principles of Equity, a party is required to do or refrain from doing a particular thing." Beach on Injunction, vol. 1, p. 2. (3) Judge Stoey defines an Injunction as "A judicial process whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the Writ." Story's Equity Jurisprudence, sec. 867; N. T. Code, sees. 602-604. 143] 44 Beief osr the Weit of Injunction, Etc. (4) "An Injunction is a method by whicli tlie Court of Chan- cery interferes to prevent the commission of fraud and mischief." 3 Blackstone's Com., Lewis' ed., 426. (5) " The procedure now called ' Grovernment by Injunction ' had its origin in the early history of the Civil Law when the Roman magistrates began to issue orders commanding persons to refrain from doing certain things. These orders were then called Interdicts^ but the purpose and effect were the same as the orders which are now called ' Injunctions.' The form, and name with which we are familiar far antedates the birth of American Inde- pendence and is coeval with the rise of Equity Jurisprudence." Address of J. McD. Trimble before Jackson Bar Association, December 4, 1897, 3 Kansas City Bar Monthly, p. 33. (6) " The Writ of Injunction is not an offensive weapon, but a defensive one. It is not a new sword of oppression, but the old shield of Liberty — a shield behind whose ample spread all classes and conditions of men for centuries sought and found protection and safety. To remove it now would not be disarm- ing the oppressor, but would be unshielding the oppressed and leaving him naked of his enemies." Id.j p. 45. (7) "An Injunction may be described as a Prohibitory Writ issuing out of Chancery, to restrain the defendant from using some legal right, the exercise of which would be contrary to Equity, and good conscience, or from some act inconsistent with the admitted or probable legal rights of the complainant, and with the preservation of the property affected by the act sought to be restrained." Introduction, p. 5, Drewcj on Injunctions, ed. 1841. (8) "An Injunction is not to compel persons lo do right, but simply to prevent them from doing wrong." 1 Eden on Injunc- tions, p. 10. (9) "By process of Injunction, it commands or restrains ac- cording to the Justice of the case, as well when courts of law would give redress, after the commission of the wrong, as 'when By William Babnes, Se. 45 Chancery pursuing and extending the application of the prin- ciples of law, can alone administer distributive justice." Eden, p. 10. (10) " The ground for permitting an Injunction without notice of motion, when the danger is imminent, whether the defendant has appeared or not, is that if a person about to commit waste, could by appearing the evening before the motion, prevent it, he would get two days, for committing the waste." Eden, p. cxii. (11) Chancellor Kent described the power to issue Injunc- tions as the " strong right arm of the court." 13 Laws Quarterly Review, London, 347. Article by William H. Dunbar of Boston. (12) The Chancery jurisdiction is not only ancient, but a most valuable and essential part of the English system of Jurispru- dence. Its origin lies concealed in the darkness of remote an- tiquity. For aught that appears, it is coeval, with the most ancient courts of the Common Law." 2 Am. Jurist, 314, Boston, Oct., 1829. (13) " The Chancellor is endowed with the discretionary power of the Roman Praetor." 10 Am. Jurist, 228. (14) Judge Stoey says: "The jurisdiction of these courts thus operating by special injunction, is manifestly indispensable, for the purpose of social justice, in a great variety of cases, and therefore should be fostered and upheld by a steady confidence." Phillips, District Judge in U. S. v. Elliott, 64 Fed. Rep. 33. (15) " The courts in granting Injunctions are not restricted to 'Acts contrary to Law ' — but may exercise the power to restrain acts contrary to Equity, being so much a part of the law, as that the word ' Law ' often means both Law and Equity or either." Stockdale v. EUery, 37 Penn. (1 Wright), 486. . (16) " The right to a preliminary Injunction is generally ad- dressed to the sound discretion, of the courts to be exercised 46 Beief on the Wbit of Injunction, Etc. according to the circTimstances of each case." Spelling on Injunc- tions, 34, § 2,2. \ (17) "A Writ of Injunction may be said to be a process cap- able of more madifications than any other in the law. It is so malleable iksLt it may be mouldedto suit the various circumstances and occasions presented to a Court of Equity. It is an instrument in its hands, capable of various applications for the purpose of dispensing complete justice, between the parties. It may be Special, Preliminary, Temporary, or Perpetual." Spelling on Injunctions, p. 37, § 35. (18) " Even in absence of statutory provisions on the subject, Courts of Equity have undoubted power, when the urgency and necessities of the case as shown by the bill and accompanying affi- davits require it, to grant a Preliminary Injunction without notice to the defendant." 2 Spelling, 866, § 1016. (19) "In the United States Courts, if there appear to be dan- gers from delay, a restraining order to be served upon said de- fendants, without notice, of the time and place of hearing will be granted." 2 Spelling, 9-20, § 1074. (20) " Without the power to prevent, as well as to undo wrongs, to restrain as well as to compel action, to preserve as well as to reinstate the status of persons and things. Courts of Equity would possess but little power and command little respect, as dispensers of justice and arbiters between man and man ; and the Injunction may be appropriately termed the strong arm of Courts of Equity." Spelling on Injunctions, p. 3. (21) " The range of purposes for which the Remedial Writ may be invoked is almost infinite; and it would be impracticable even in a work devoted exclusively to the subject, to consider every proper occasion for its employment." Spelling, p. 5. (22) In England, " The Court or a judge if satisfied, that the delay by proceeding in the ordinary way, would or might entail By William Baenes, Se. 4Y irreparable or serious mischief, may make an order for an In- junction ex parte, before service of the writ of summons and even before issuing the Writ." Kerr on Injunctions, 4tb ed., p. 555. (23) "An Injunction is virtually a rescript of the Praetorian Interdict of the Koman Civil Law." Spelling, p. 2. (24) Spelling on Injunctions, p. 2, says: "Injunction is a Writ framed according to the circumstances of the case, command- ing an Act, which the Court regards as essential to justice, or restraining an act, which it esteems contrary to Equity and good (25) Lord Campbell speaks of Injunctions as " the artillery " of the Court of Chancery. Lives of the Lord Chancellors, vol. 1, p. n. (26) In England by section 25 of the Judicature Act of 18Y3 it is provided that: "A Mandamus or an Injunction may be granted or a receiver appointed, by an interlocutory order, of the court in all cases, in which it shall appear to the court to 'be just, or convenient that such order should be made, either uncondition- ally, or upon such terms and conditions as the court shall thinh just." Kerr on Injunctions, 4th ed., p. 3. (27) " It is often of vital importance to the plaintiff, to be able to enjoin the defendant, at the very instant when he is apprised that an action is commenced against him." Canfinan v. Van Buren, 136 N. Y. Eep. 252. (28) " Injunction has been styled the ' Strong Arm, ' of Equity to be used only to prevent irreparable injury to him, who seeks its aid." McLaury v. Hart, 121 N. Y. Eep. 636 ; Beach on In- junctions, p. 3. (29) As a remedy for preventing wrongs, and preserving rights, the Injunction has been regarded as more flexible and adjustable, to circumstances, than any other process known to the law. The 48 Beief on the Weit of Injunction, Etc. facility with which immediate relief can be applied, to new con- ditions and adjusted to the changing emergencies of modem en- terprise. Beach on Injunctions, p. 3 ; Toledo v. Penn. Co., 54 Fed. Eep. 746, per Kicks, J. (30) The United States Circuit Courts are given authority hy Act of Congress, to grant Preliminary Injunctions, without notice, in extreme cases. Va. Law Reg. 1897, p. 559. (31) " The jurisdiction of courts, to interfere in such miatters by Injunction, is one recognized from ancient times, and by in- duhitaible authority." Beeweb, J., In re Debs Petition, 158 U. S.Eep., p. 564. (32) Mr. Justice Millee says : " Certainly it seems to us quite as wise to use the processes of the Law, and the powers of the court, to Prevent the evil, as to punish the offense as a crime after it has been committed." Eylenbecker v. Plymouth Co., 134 U. S. 31, 40. (33) "An Injunction must be obeyed in good faith, according to its spirit; a negative and passive obedience is not enough." Rapalje on Contempts, p. 53. (34) ■ "All bills sent to the Council that embraced matters terminable at the Common Law should be sent there to be deter- mined, unless there was too much might on one side, etc." Spence's Chancery, p. 331. (3'5) P'er Ricks, J. " It is said that the orders issued in this case are without precedent. Every just rule or order known to Equity Courts, was bom of some emergency, to meet some new conditions, and was, therefore, in its time, without a precedent, etc." Beach on Injunctions, 3 ; Toledo v. Penn. Co., 54 Fed. Rep. 746. (36) " But if an Injunction be wanted to stay waste, or other injuries of an equally urgent nature, upon the filing of the bill, and a proper case supported by affid'avits, the court will grant an By William Baenes, Se. 49 Injunction immediately, to continue until the defendant has put in his answer and until the court shall m'ake some further order conc€;rning it, and when the answer comes in, whether it shall then be dissolved, or continue its order, must be heard by the court upon argument drawn from considering the affidavits and answer together." Id., p. 442. (37) "An Injunction will be granted whenever it is necessary to prevent irreparMe injury." American Digest, Title Injunc- tion, p. 1449. (38) "Irreparable injury justifying the issue of an Injunc- tion may be such either from the nature of the injury itself, or from the want of responsibility in the person committing it." Kesin v. West, 4 I:^. J. Equity, p. 449. (39) " The defendants, who were officers of a Trades Union, gave notice to workmen, by means of placards and advertisements, that they were not to hire themselves to the plaintiffs pending a dispute between the Union and the Plaintiffs. " The bill prayed an Injunction, to restrain the issuing of the placards and advertisements, alleging that by means thereof, the defendants had in fact intimidated and prevented workmen from hiring themselves to the plaintiffs, and that the plaintiffs were thereby prevented from continuing their business, and the value of their property was seriously injured and naturally diminished. "Held, upon demurrer, that the acts of the defendants as al- leged by the Bill amounted to crime, and that the court would interfere by Injunction, to restrain such acts, inasmuch as they also tended to the destruction or deterioration of property." De- murrer was overruled. Per Sir E. Malins, V. C, July 31, 1868, Law Keports Equity Cases, 6,551, Springhead Spinning Company v. Kiley. (40) " A Court of Equity will restrain by Injunction discharged employees, members of a Union, from gathering about their former employer's place of business, and from following the work- men, whom he has employed in place of the defendants, from (4 ' 50 Beief on the Weit of Injunction, Etc. gathering about the boarding-houses of such workmen, and from interfering with them by threats, menaces, intimidation,, ridicule and annoyance, on account of their working for plaintiff." 152 Penn. Eep. 595. (41) "A combination or a conspiracy, by a Trades Union, to Boycott a newspaper for refusing to Unionize its office, is illegal and unlawful, and will be enjoined by a Court of Equity." Casey V. Cincinnati Typographical Union, 45 Fed. Rep. 135. (42) " The Business of a person conducted according to law, is a property right, and a loss resulting from a suspension or in- terruption of business, is an injury to property. A Court of Equity has jurisdiction to restrain by Injunction the carrying out of a conspiracy to destroy or injure property, and the court is not deprived of this power, that the acts in question are criminal. "A conspiracy to injure a person's business, by preventing by means of threats and intimidation persons, from entering his em- ployment is a crime, at Common Law, and under the Penal Code." Davis V. Zimmerman, 91 Hun, p. 489. (43) "Banners displayed in front of a person's premises, with inscriptions calculated to injure his business and to deter work- men from entering into or continuing in his employment, con- stitute a Nuisance, which Equity will restrain by Injunction." Sherry v. Perkins, 147 Mass. 312. (44) "A 'Court of Equity may interfere by Injunction, to pre- vent persons from attempting intimidation, threats of violence and other unlawful means, to force employees to quit work and join a strike." Shoe Co. v. Saxey, 131 Mo. 212. (45) A patrol of two persons with threats of injury to non- strikers is illegal and a nuisance and will be enjoined. Field, Ch. J., and Houmes, J., .dissenting, 44 N. E. Rep. 1077; 167 Mass. 92, By William Baknes, Se. 51 ^QUITAS-COTIETS OF EqUITY. JEquitas .means Eight — Duty — Justice — Morality. (46) Mr. Justice Beewee says : " I believe most thoroughly that the powers of a Court of Equity are as vast and its process and procedure as elastic, as are the changing emergencies of in- creasingly complete business relations, and the protection of rights can demand." Omaha Bridge v. Union Pacific Ry. Co., Albany Law Journal, 377. (47) Mr. Justice Blatchfoed defines the power of a Court of Equity as follows : " It is oiie of the most useful functions of a Court of Equity that its methods of procedure are capable of being made such as to accommodate themselves to the development of the interests of the public, in the progress of trade and traffic. ISTo maxim is more firmly rooted in English and American Jurisprudence than the one, which given a free translation declares that: " ' No wrong shall exist without a remedy.' Ubi jus. Hi remedium." (48) It is plain that law is a moral science, since the end of all Law is Justice. Equity, therefore, as it stands for the whole of Natural Justice is more excellent than any human institution; neither are positive laws even in matters seemingly indifferent any further binding, than they are agreeable, to the Law of God and Nature. Fonblanque on Equity, 3d ed., pp. 1-9. (49) " In the most general sense, we are accustomed to call that Equity, which in -human transactions, is founded on Natural Jus- tice, in Honesty omd Bight, and which properly arises, ex cequo et bono. In this sense it answers precisely, to the definition of Jus- tice on Natural Law, as given by Justinian in the Pandects." 1 Story Equity Jurisp. 1. (50) "JEquitas, of the Roman Law. " The growth and functions of Equity as part of the English Law were anticipated by a similar development of the same notions in Roman Jurisprudence," Pomeroy on Injunctions, § 2. 52 Brief on the Weit of iTfJUNorioN, Etc. (51) ZSquitas means: Bight, Duty, Justice and Morality. The office of Chancellor existed. before the 'Conquest. Pomeroy, p. 13. (52) " These flexible principles have been applied to almost every _ relation of life, effecting property rights, and have been moulded so as to meet the exigencies of the infinite variety of cir- cumstances, which arise from modern civilization." Pomeroy, p. 40. Contempts of Couet. (53) " The deprivation of the power of the courts, to punish for contempt, would render the courts impotent; its niisuse would make them tyrants. It is, therefore, equally important to pre- serve the power and prevent its abuse." 28 Am. Law. Eeview, p. 85L, Address by Charles A. Allen of Saint Louis. (54) " The Constitutional guaranty of, Trial hy Jury, does not extend beyond the cases, where such right exists at Common Law, and that the rijl t to punish for contempt, without the inter- vention of a jury, i a well-established rule of the Common Law." Beach on Injunction:, -p. 292. (55) " The power to imprison for contempt, from the earliest history of Jurisprudence, has been regarded as a necessary inci- dent and attribute of a court, without which it could no more exist, than without a judge. " It is a power inherent in all courts pi record, and coexisting with them by the wise provisions of the Common Law. "A court vdthout the power effectually to p'rotect itself against the assaults of the lawless, or to enforce its orders and judgments or decrees, against recusant parties before it, would be a disgrace to the legislation and a stigma, upon the age, which invented it." Watson V. Williams, 36 Misc. 331; see also Cartwright's Case, 114 Mass. 230. (56) " Punishment of an act as a crime, is less certain, and less swift than punishment of the same ajct as a Contempt," 13 'Law Quarterly" Eeview. (Dunbar,)- By William Baenes, Se. 53 If proceedings for Contempt were tried before a jury, the In- junction issued would be recognized as futile; such efficacy as they have, in preventing acts of violence, arises solely from the greater possibility of a conviction for Contempt, in a trial by a judge alone, without right of appeal, than of conviction by a jury, likely to sympathize in some degree with the offender. A criminal presentation of " Debs," founded upon the same acts, for which he was punished by a Court of Equity, resulted in a failure to convict; William H. Dunbar, 13 Law Quarterly Eeview, 360, 361, London. (57) " Debs, who for a time posed as supreme arbiter over the welfare of millions of his fellow citizens, was in fact taken red-handed in a flagrant and an audacious defiance of the laws, and merited the most severe punishment which the penal statutes authorized." Id., p. 366. " The existing power of the Courts to punish for Contempts, is absolutely necessary to the efficient administraiion of Justice." Id., p. 366. (58) "Proceedings according to the Common Law for Con- tempts of Court are not subject to the right of trial by jury, and are due process of law." Eilenbecker v. Plymouth Co., 134 U. S. 31. (59) Nearly five hundred years ago was the modem Equity power established. 10 Political Science, Quarterly, 196. (60) "It is conclusively settled by a long line of decisions that at Common Law, all Courts of record have an inherent power to punish Contempts committed, in facice curim; such power being essential to the very existence, of a court as such, • and granted as a necessary incident in establishing a Tribunal or Court." Kapalje on Contempts, 1, 2. (61) " The provisions of the Constitution of the United States that the trial of all crimes shall be by jury, does not take away the right of courts to punish Contempt, in a summary manner." Eapalje on Contempt, 12. 54 Beief on the Weit of Injunction, Etc. (62) " This power being necessary to the very existence of a court, as such, the legislature has no right to take it away, or hamper its free exercise." Eapalje, p. 13. CONSPIEACIES StEIKES BOYCOTTS. (63) " Combination of two or more persons to do an unlawful act, whether such act be the object of the combination or means of accomplishing that object and whether such injuries be to pri- vate persons only or to the public is a conspiracy." 10 Ameri- can Digest, p. 1097. (64) "For several persons to agree, and bind themselves to- gether by a bond or covenant, to do or not to do, that which if done or not done, would injure an individual or individuals in person, property or reputation, is a Conspiracy." 6 City Hall Eec. 33 ; 10 Am. Digest, 1135. (65) "A combination is criminal when the act to be done has a necessary tendency to prejudice the party, or to oppress indi- viduals by unjustly subjecting them to the power of the confed- erates, as when employers combine to depress the wages of journeymen, below what they would be, if there was no recurrence to artificial means, by either side." Commonwealth v. Carlisle, 10 American Digest, 1139. (66) "A combination among journeymen bootmakers to compel by force of numbers and discipline, and by imposition of fines and penalties, other journeymen to join their society, and masters to employ none but themselves, is an unlawful Conspiracy; at Common Law in Massachusetts." Commonwealth v. Hart, Thacher's Crim. Cases, 609; 10 Am. Dig. 1130; S. P., People v. Eisher, 14 Wend. Eep. 9. (67) "A determination of workmen that an objectionable per- son styled ' a scab,' should be driven away and prevented from working within a certain district is a Criminal Conspiracy." People V. Walsh, 15 N. Y. 17; S. P., State v. Stuart, 59 Vt. 273. By William Barnes, Sb. 55 (68) Every member of a company is responsible personally for the acts of every member thereof, done in furtherance of its illegal purpose, whether he be present himself or not. U. S. v. Butler, Federal Cases, 14,Y00; 1 Hughes, 457. (69) " One joining a party of persons combined for an unlaw- ful purpose does not thereby become criminally liable for the unlawful acts of such persons, prior to his becoming a member." State V. Duncan, 64 Mo. 262; 10 Am. Dig. 1155. (70) "A criminal conspiracy has been defined to be: 'Any combination between two or more persons to accomplish an unlaw- ful purpose, or a lawful purpose by unlawful means.' " See U. S. Statutes at Large, chap. 647, p. 209 (Anti-Trust Law). (71) "A combination by a Trades Union, to ' Boycott ' a news- paper for refusing to Unionize its office is illegal, and will be enjoined by a court of Equity." Spelling on Injunctions, p. 780, § 926. • (72) " The defendant's purpose was to deprive the publishing company of its liberty to carry on its business, in its own way, although in doing so it interfered with no right of the defendants. The motive was to gain an advantage unjustly, and at the expense of others, and therefore the act was legally corrupt. As a means of accomplishing the purpose, the parties intended to harm the publishing company, and therefore it was malicious." The State V. Glidden, 55 Conn. 46. Strikes. (73) "Members of workingmen's association have the right, either as individuals or as an organization, to cease to work for any employer and to use all peaceful and lawful means to induce others to cease to work for such employers, but an Injunction will lie to restrain them from attempting by force or threats to pre- vent others from working for any employer." Beach on Injunc- tions, p. 505. (74) Per Judge Jenkiits : "A Court of Equity having charge of a railroad through its receivers has authority to restrain the 56 Beief on the Weit of Injunction, Etc. formation and execution of a conspiracy among employees to quit the service in a body, with design and intent of crippling the property in their custody or embarrassing the operation of the road. " There is nothing in the Act of 'Congress entitled 'An Act to Legalize, the Incorporation of E'ational Trades Unions,' (24 U. S. Statutes, chap. 567), to countenance the idea, that it so changes the Common Law, as to authorize comhinations and conspiracies of interstate employees to quit the service in a hody, with the danger and intent of crippling the property in their custody, or embarrassing the operation of the road, with the ulterior purpose of enforcing a demand against the master." Farmers' Loan & T. Co. V. Northern Pacific, 16 Criminal Law Magsizine for 1894. (75) Definition of a Strike. — ■ "A strike is a combination among workmen to compel the master to a concession of a certain demand by preventing the conduct of his business until compli- ance with the demand. " The concerted cessation of work is but one, and the least effective, of the means to the end, the intimidation of others from engaging in the service, the interference with and the disabling and destruction of property, and resort to actual force and violence when necessary to the accomplishment of the end, being the other and more effective means employed. " Such a Strike is unlawful, and a Federal Court, having charge through its receivers of an Interstate railroad, had juris- diction to enjoin the executive heads of the various organizations of railroad employees from ordering a strike upon the road." Per Jenkins, J. Farmers' L. & T. Co. v. Pacific K. E. Co., 16 Criminal Law Magazine, 185 ; 60 Fed. Kep. 803. Judge Jenkins says (p. 195) : "It would seem by some to be supposed, that in this land, one has the Constitutional right to do as one may please, and that any restraint upon the will is an infringement upon freedom of action. " Rights are not absolute, but relative. It would be monstrous if a surgeon, upon demand and refusal of a larger compensation,, By William Baenes, Sb. 5Y could lawfully atandon an operation partially performed, leaving his knife in the bleeding body of his patient." Id., p. 95. " Violence and outrage, arson and murder, have been associated vs^ith the strike as its natural and inmiiahle concomitants. " No strike can be effective without compulsion and force, that compulsion comes commonly through intimidation, A strike without violence would equal the representation of the tragedy of 'Hamlet, with the part of Hamlet omitted." Id.r p. 205. (76) The Injunction order of Judge Jenkins in this case was modified on appeal by the United States Supreme Court, Haelan, J. (77) Mr. Justice Brewer says: " This is the struggle of irresponsible persons and organiza- tions, to control Labor. " It is not in the interests of Liberty, it is not in the interests of the individual; it is an attempt to give the many a control over the few — a step toward despotism. " Let the movement succeed, let it once be known, that the in- dividual is not free to contract for his personal services, that Labor is to be farmed out, by organizations, as to-day by the Chinese companies, and the next step will be a direct effort, on the part of the many to seize the property of t^e few." Judge Brewer's address, before the New York State Bar As- sociation, January, 1893, cited by Judge Jenkins in his decision. Id., p. 207. (78) District Judge Phillips finds it a case for the " strong arm of Equity," since — " Such lawbreakers are generally a lot of professional agitators. Their tongues are their principal stock in trade," etc. 64 Fed. Eep. 27. (79) " The complaint filed in this case clearly shows an exist- ing obstruction of artificial highways for the passage of interstate commerce and the transmission of the mails, not only temporarily existing, but threatening to continue; and under it the Circuit 58 Beiep ok the Weit of Injunction, Etc. Court had power to issue its process of Injunction." In re Debs' Petition, 158 IT. S. 564. Opinion by Bbewee, J. (80) Mr. Justice Bbewee also said {Id., p. 599) : " That in this government of and by the people, the means of redress of all wrongs are through the courts and at the Ballot Box, and that no wrong, real or fancied, cari'ies with it legal warrant to invite as a means of redress the co-operation of a Mob, *with its ac- companying acts of violence." (81) " "When the employees of a railroad company, whose prop- erty is in the custody of the court, by concert of action, quit work and take possession of, and obstruct the movement of engines and cars on the tracks of said company, and while so doing also take possession of or obstruct the operation of engines or cars in the custody of the receivers of the court, it is the right and duty of the court to punish such latter acts as Contempt of its authority." In re Doolittle and Other Strikers, 2-3 Fed. Rep. 545. (82) "Bequests" by strikers are equivalent to "Threats." " If indeed Courts of Equity did not interfere in cases of this sort, there would be, as has been truly said, a great failure of jus- tice in this country." 2 Story's Equity Jurisp., § 928, cited by Judge Haelan in Arthur v. Oakes, 63 Fed. Eep. 329. (83) Per Taft, Judge.— " If in addition to withdrawing from his employment, they combine together to coerce their employer, to come to their terms, and so interfere with his business, by frightening persons from selling to him or buying from him, or contracting with him, by threats of a withdrawal of Union workmen from the employment of such persons, i. e., by boycot- ting him, they become engaged in an unlawful conspiracy, and are liable to the employers for any injury resulting therefrom. " The peculiar form of oppression resorted to in the case at bar, is known as boycotting, the essential feature of which is, the ex- clusion of the employer from all communication with former cus- tomers and materialmen by threats of similar exclusion to the latter, if dealings are continued. By William Baenes, Sk. 59 " The name is derived from Irish political history of the last ten years. " The latest American case^ when the form of combination is considered is Crump v. Commonwealth, 84 Va. 927, in which the combination is held to be unlawful, and the general principle is stated as follows: 'A wanton unprovoked interference, by a com- bination of miany with the business of another for the purpose of constraining that other to discharge faithful long-tried servants, or to employ whom he does not wish or will to employ (an inter- ference intended to produce and likely to produce annoyance and loss to that business) will be restrained and punished by the Criminal Law, as oppressive to the individual, injurious to the prosperity of the community, and subversive of peace and good order of Society.' " Moores v. Bricklayers Unions, Weekly Law Bulletin, Ohio, p. 43, January, 1890. (84) Per Taft, Circuit Judge. — " But it is said, that it cannot be unlawful for an employe© either to threaten to quit, or actually to quit the service, when not in violation of his contract, because a man has the inalienable right to bestow his labor where he will, and to withhold his labors as he will. Generally speaking, this is true, but not absolutely. If he uses the benefit which his labor is or will be to another, by threatening to withhold it or agreeing to bestow it, or by actually withholding it, or bestowing it, for the purpose of inducing or procuring or compelling others to commit an unlawful or criminal act, the withholding or bestowing of his labor for such a purpose is itself an unlawful and criminal act, etc." Toledo E. K. v. Pennsylvania County Circuit Court, Ohio, April 3, 1893, 54 Fed. Kep., pp. 730-745. (85) Per Taft, Circuit Judge. — " Phelan, a resident of Oregon, came to Cincinnati, a week before the filing of the peti- tion and set on foot and incited a strike among the employees of the receivers and of the railroad companies whose lines run into Cincinnati; that on June 17th and at other times and places Phelan made inflammatory speeches to such employees, etc. " The plan of the boycott as shovra by the evidence was this : 60 Brief on the Weit of IiTJUiirciTioN, Etc. " Pullman cars are used on a large majority of tlie railways of the country. The members of the. American Railway Unions, whose duty it was to handle Pullman cars on such railways, were to refuse to do so, with the hope that the railway companies, fear- ing having a strike would decline further to haul them in their trains and inflict great pecuniary injury upon the Pullman company. " Phelan advised all the men to quit work and induce and coax other men to quit work and if this was not successful- to take a club and knock them out, and kick them out. " Phelan, the contemnor, said, ' I don't care, if I am violating Injunctions. N'o matter what the result may be to-morrow, if I go to jail for sixteen generations, I want you to do as you have done. Stand pat to a man. 'No man go back unless all go, and all stay out unless Phelan says go back.' " Sentence was pro- nounced against Phelan, the contemnor, of six months' imprison- ment. In re Phelan, Circuit Court, Ohio, July 13, 1894, 62 Fed. Rep. 803-823. (86) Mr. Justin McCabtht, of Ireland, defines the word " Boycott " as follows : " The strike was supported by a form of action or rather inaction, which soon became historical. ^' Captaiu Boycott was an Englishman,- an agent of Lord Earne, and a farmer of Lough Monk in the wild and beautiful district of Connemara. In his capacity as agent he had served notice upon Lord Earne's tenants and the tenantry suddenly retaliated in a most unexpected way by, in the language of schools and so- ciety, sending Captain Boycott to Coventry in a very thorough manner. The population of the region for miles round resolved not to have' anything to do with him and as far as they could pre- vent it, not to allow any one else to have anything to do with him. His life appeared to be in danger. He had to claim police pro- tection. His servants fled from him as servants flee from their masters in some plague-stricken Italian city. The awful sentence of excommunication could hardly have rendered him more help- lessly alone for a time. ISTo one would work for him. No one would supply him with food. He and his wife had to work in By "William BabkbS; Se. 61 their own fields themselves, in most unpleasant imitation of the shepherds and shepherdesses and play out their grain eclogue in their deserted fields with the shadows of the armed constabulary ever at their heels. " The Orangemen of the North heard of Captain Boycott and his sufferings and the way in which he was holding his ground and they organized assistance and sent him down armed laborers from Ulster. " To prevent Civil War, the authorities had to send a force of soldiers and police to Lough Monk and Captain Boycott's harvests were brought in and his potatoes dug by the armed Ulster laborers, guarded always by the little army." State v. Glidden, 55 Conn. 76-77. The above cases and elementary works are not, of course, all the authorities on this subject; but they give a fair resume of the existing law on these subjects in England and in this country, and will enable any voter to understand the law on these subjects. WILLIAM BAENES, Se. (86th year.) Dated September 10, 1908. O'Conor-Bames Homestead On-the-Oliff, Nantucket Island, Massachusetts. CORNELL UNIVERSITY LIBRARY 3 1924 055 816 650 DATE DUE 1 , CAYUORO ''AINTCDINU.S.A.