in the law for which he was entitled to trial by jury; that therefore the convictions of the labor-union men in the police court were utterly void and that Callan was consequently entitled to his liberty. Of course, the inquiry before the United States Supreme Court involved three questions. The first was, Is the common law in force in the District of Columbia? Mr. Ralston, of course, contended that it is. The second was, Was the act of which Callan was accused a criminal offense? Mr. Ralston, in their behalf, contended that it was. The third question was, Was that act an insignificant petty offense or was it a heinous crime? In behalf of the unions he contended that it was not only a crime, but a heinous crime, for which a person accused could only be tried by a jury, constitutionally. Well, Mr Justice Harlan, whom we heard lauded here so much the other day by Mr. Gompers in some matter in which he thought Justice Harlan agreed with him, but who does not seem to have attracted altogether the unqualified admiration of Brother Walker—-—-

Mr. WALKER. Nearly, but not altogether.

Mr. DAVENPORT. Justice Harlan delivered the opinion and decision of the court, and this is what he said. I will quote only a few lines from the opinion on page 555. Here is the case-Callan v. Wilson.

Mr. McCoy. The same case?

Mr. DAVENPORT. Yes, sir; the same case, 127 United States, 555.

Without further reference to the authorities and conceding that there is a class of petty or minor offenses, not usually embraced in public criminal statutes and not of the class or grade triable at common law by a jury and which, if committed in this District, may under the authority of Congress be tried by the court and without a jury, we are of opinion that the offense with which the appellant is charged does not belong to that class. A conspiracy such as is charged against him and his codefendants is by no means a petty or trivial offense. The general rule of the common law," the Supreme Judicial Court of Massachusetts said, in Commonwealth v. Hunt (4 Met. 111, 121), "is that it is a criminal and indictable offense for two or more to confederate and combine together, by concerted means, to do that which is unlawful or criminal to the injury of the public, or portions or classes of the community, or even to the rights of an individual." In State v. Burnham (15 N. H., 396, 401) it was held that "combinations against law or against individuals are always dangerous to the public security. To guard against the union of individuals to effect an unlawful design is not easy

Now I ask this committee to note this feature also about that case. It was in the summer of 1888 that this decision was rendered, only two years before the Sherman Antitrust Act was put upon the statute book. This decision was announced just at the time when that measure was about to be put before Congress. The decision expressly held that combinations to boycott were heinous crimes at common law. It was well known to all the great statesmen, lawyers, and jurists who took part in framing the Sherman Antitrust Act and they well knew that the Supreme Court had held that boycotting was an illegal and criminal conspiracy.

Mr. NYE. That decision reversed the district court?

Mr. DAVENPORT. Yes, and on the very ground contended for by the labor unions, viz, that boycotting is a crime at common law, and a crime in the District of Columbia, and a heinous crime at that.

Now, having thus achieved their great success in getting the law established for their own benefit by the United States Supreme Court, you would naturally think that these gentlemen, whose sole desire Mr. Gompers says is to obey the laws of the land, would have

thereafter proceeded to obey and follow it, and especially to respect that declaration of it by the highest court in the land, procured as it had been by their own efforts and upon their own demands, in a case with which no capitalist had anything whatever to do. It was simply the case of a poor musician, the victim of an unlawful combination among his fellows, who had gone to the district attorney and presented his case to the proper legal authority; the district attorney has invoked and brought into play for him the processes of the law; and the Supreme Court had extended the aegis of the law over the head of every victim of the boycott in this land for all time to come, although the guilty parties in that particular instance were able to escape punishment. Did these gentlemen thereafter obey that law? You heard Mr. Gompers declare what they had done and what they desired to do hereafter, and what they intend to do, law or no law.

Now two years afterwards came the Sherman Antitrust Act. Yesterday I heard the statement made here that the matter of the labor unions and the combinations of labor unions in restraint of trade was not mentioned in the discussions in Congress while that measure was pending there, as it was for two or three years. You had before you the accomplished author of a book written on that act, Mr. Albert H. Walker. Well, his version of the matter did not accord with that of our labor friends, whose memory in regard to it is in truth much better than his, for it is a fact, that while that law was pending before Congress, Mr. Gompers, as he says, made extraordinary efforts to get into it a provision excluding the labor unions and also farmers' organizations from its operations; and so far did he get in that direction that he actually succeeded in getting into the bill at one stage of it in its progress through the Senate when in Committee of the Whole an amendment of that character. Thereafter Senator George F. Edmunds, a gentleman who well deserved the encomium pronounced upon him here by Mr. Walker as the real author of the law as it stands to-day, took the floor and made a speech against such an exemption which stands, as a contribution to the philosophy of the subject which we are now discussing, as yet unequalled. He pointed out to his fellow Senators that they could not put one class, the capitalists, under the law, and forbid them to combine in restraint of interstate trade, unless at the same time they forbade workingmen to combine for that purpose. After Mr. Edmunds made that speech nothing more was ever heard from any of the great statesmen then in the Senate and House about excluding the labor unions from the restrictions of the bill. Later the crude and ill-drawn attempts at the proposed legislation were referred to the Senate Judiciary Committee, redrafted by Senator Edmunds and when reported back to the Senate it was in the identical terms in every respect it is in now.

Well, now, this is not a matter that has been hastily thought out by me here now for the first time, because it was necessary in the Danbury Hatters' case, when this act in this respect was being considered by the Supreme Court, for Mr. Beck, the senior counsel in the case and myself to present to the court the true history of this matter about such an attempt at excluding the unions and it was done both in the brief and in the argument which Mr. Beck made upon that point. And when the Supreme Court rendered its decision in that case, Loewe v. Lawlor (208 U. S., p. 301), Mr. Chief Justice Fuller,

with the full concurrence of all the members of that great court, after full consideration of that history said:

Nor can the act in question be held inapplicable because defendants were not themselves engaged in interstate commerce. The act made no distinction between classes. It provided that "every" contract, combination, or conspiracy in restraint of trade was illegal. The records of Congress show that several efforts were made to exempt, by legislation, organizations of farmers and laborers from the operation of the act, and that all these efforts failed, so that the act remained as we have it before us.

The CHAIRMAN. Mr. Davenport, I do not want to interrupt you, but I call attention to an article in the North American Review of December, 1911, by Senator Edmunds, and wish I had the permission of the publishers of this article to incorporate it into these hearings. It is under the title of "Interstate commerce act of 1890," and on page 808 of that publication I find that Mr. Edmunds, in speaking of the history of this particular law, at the top, says:

Mr. Sherman then proposed an amendment in the nature of a proviso declaring that the act should not apply to certain labor combinations nor to persons engaged in horticulture, and so forth, which amendment was agreed to without yeas and nays.

Mr. DAVENPORT. That is true. That was done in Committee of the Whole. I think the only man who voted against it then was Senator O. H. Platt, of my State. Mr. Edmunds in his story there does not tell how he then took the floor and made that masterly argument which I have referred to, which resulted in the abandonment of the proposition as utterly unfeasible, impracticable, as totally destructive of the efficacy of the act, but the chairman will remember that I am limited as to my time and he will excuse me for not discussing that matter further.

Well, that law was then passed. What have we next? The Supreme Court of the United States, in Loewe v. Lawlor (208 U. S.), in addition to what I have just quoted, goes on to say:

In an early case (United States v. Workingmen's Amalgamated Council, 26 L. R. A. 158, 4 Inters. Com. Rep. 831, 54 Fed. 994) the United States filed a bill under the Sherman Act in the circuit court for the eastern district of Louisiana, averring the existence of "a gigantic and widespread combination of the members of a multitude of separate organizations for the purpose of restraining the commerce among the several States and with foreign countries," and it was contended that the statute did not refer to combination, of laborers. But the court granting the injunction said:

I think the congressional debates show that the statute had its origin in the evils of massed capital; but, when the Congress came to formulating the prohibition, which is the yardstick for measuring the complainant's right to the injunction, it expressed it in these words: "Every contract or combination in the form of a trust, or otherwise in restraint of trade or commerce among the several States or with foreign nations, is hereby declared to be illegal." The subject has so broadened in the minds of the legislators that the source of the evil was not regarded as material, and the evil in its entirety is dealt with. They made the interdiction include combinations of labor as well as of capital; in fact, all combinations in restraint of commerce, without reference to the character of the persons who entered into them. It is true this statute has not been much expounded by judges, but, as it seems to me, its meaning, as far as relates to the sort of combinations to which it is to apply, is manifest, and that it includes combinations which are composed of laborers acting in the interest of laborers.

It is the successful effort of the combination of the defendants to intimidate and overawe others who were at work in conducting or carrying on the commerce of the country in which the court finds their error and their violation of the statute. One of the intended results of their combined action was the forced stagnation of all the commerce which flowed through New Orleans. This intent and combined action are none the less unlawful because they included in their scope the paralysis of all other business within the city as well.

The case was affirmed on appeal by the circuit court of appeals for the fifth circuit. (6 C. C. A. 258, 13 U. S. App. 426, 57 Fed. 85.)

The Chief Justice then goes on further and on page 364 quotes further from Mr. Justice Brewer, and I commend it to the enlightened statesmen on this committee as follows:

It is curious to note the fact that in a large proportion of the cases in respect to interstate commerce brought to this court the question presented was of the validity of State legislation in its bearings upon interstate commerce, and the uniform course of decision has been to declare that it is not within the competency of a State to legislate in such a manner as to obstruct interstate commerce. If a State, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that State has a power which the State itself does not possess?

Then Chief Justice Fuller says, "The question answers itself." So the Sherman Antitrust Act was passed in 1890. The American Federation of Labor brought their headquarters here to Washington in 1886, after they had succeeded in procuring from the Supreme Court the decision in regard to the illegality and criminality in the District of Columbia of the boycott in the case of Callan v. Wilson, which I have referred to. They published here a magazine. Mr. FURUSETH. In 1896 you mean, don't you?

Mr. DAVENPORT. 1886, is it not?

Mr. FURUSETH. In 1896.

Mr. DAVENPORT. Well, I stand corrected by Mr. Furuseth as to the date; but be that as it may, it was some time before the incident which I am now about to relate occurred. Mr. Furuseth, do you refer to the date of publishing the magazine or moving the headquarters here?

Mr. FURUSETH. To the moving of the headquarters here.

Mr. DAVENPORT. Mr. Gompers, as president of the American Federation of Labor, has been for many years and now is the editor of the American Federationist, and it has been and is published right here in the city of Washington, but notwithstanding the decision in Callan v. Wilson he has continued to practice here the boycott, and not only has he practiced it, but from Washington as his headquarters has in his magazine, by circulars, by speeches, and in every other way, argued with, incited, and instructed all his followers, that they have a perfect legal right to boycott, and to practice the boycott in all its forms, and to do precisely that which was condemned by the United States Supreme Court as illegal and criminal in that case. Gompers, Mr. Mitchell, and Mr. Morrison have steadily taught this doctrine throughout this country to the immeasurable damage of many of our citizens.

Mr.

Now this course of procedure by them had gone on until the year 1902, when the association I represent here was formed to combat it. Reference has been made here by Mr. Gompers to the American Antiboycott Association and to me as "Its author and general counsel" in such "kindly" tones that I ought to talk to you a little about that matter. In the year 1902 the condition of affairs in this country had come to such a pass that the great organization of the American Federation of Labor, with its 114 national unions, its 28 State federations, its 500 city central labor unions, and its 15,000 local unions composing these national unions throughout the country, all guided and directed and taught by Mr. Gompers to do so, had reduced the system of interstate boycotting of selected victims to a perfect science in the art of destroying them. There was at that time in business in Danbury, Conn., a comparatively poor man, one Dietrich E.

Loewe, who was running a hat factory there. In the employment of his help he made no distinction between union and nonunion men. All of his men, both union and nonunion, were satisfied with the conditions of their employment and they all liked him. But it had become, at that time, a part of the policy of the United Hatters of North America, one of the unions making up the American Federation of Labor, to carry through a scheme to completion, which it had long been engaged in, to force all the fur-hat manufacturers in the United States to unionize their shops, and in pursuance of which they had already reduced all but 12 to complete submission, as Mr. Moffatt their president reported. Mr. John A. Moffatt, well known to you now as one of the legislative committee here of the American Federation of Labor, and who sits right here before me now, was then and had been for years the president of the United Hatters.

In 1902 it had become a part of their plan of campaign to bring about the unionization of a factory of the class which Mr. Loewe was then running. So the Hon. James Maher, now one of your fellow Members of Congress, and then the treasurer of the United Hatters, went to Mr. Loewe and in a very polite and kindly manner suggested that it would be a good thing if he would unionize his factory. In the conferences which followed it seems that they were not very far apart on any point except on one. There were not many changes to be made in his mode of doing business to suit them; the way he ran his factory was entirely satisfactory to them. But the question soon arose, What was to be done with those men in his employment who did not belong to the United Hatters. Would they also be taken into the union if he unionized his factory? Well, hardly. They said, "We have our own members to look out for and we are not entirely a benevolent institution, we can assure you of that." "Well," said Mr. Loewe, "the substance of the matter is then that if I unionize my shop, as you demand, these men not now in the union who have always been faithful employees of mine must leave my employment and in this totally unionized town look for work and probably go without it." "Well, that is about the size of it." "Well, if that is the case," said he, "then I will die in my tracks before I will unionize my factory." So the parties separated and the clash had come. I have no doubt that it was with feelings of deep regret on the part of Mr. Moffatt that it had so come. But the war was on. The first thing they did was to call out the union men. The next was to get the nonunion men together and tell them that if they ever wanted to work at hatting thereafter they must at once quit Mr. Loewe. So all but seven of his men left him, so great was their fear of the power of that union. Mr. Loewe's business was completely demoralized. Mr. Moffatt expected a surrender within a week, and it was so given out. I am only briefly accounting the testimony in the case. But Mr. Loewe made efforts, as best he could, to replace his men with other help, and it took some time before he even partially succeeded. Meanwhile the Hatters' Union had emissaries out all over the country visiting his customers. They would go to one man and say, "We wish you would not buy goods from Mr. Loewe. He is at war with us,' and very often the customer would yield at once. In case he still stood out, he would be waited on by the members of the other unions, allied with the United Hatters in the American Federation of Labor who lived in his town, and was told by them