But what do you say about business being property? What does the Supreme Court of the United States say about it? In Bitterman v. Louisville and Nashville Railroad Co. (207 U. S.), at pages 222, 223, and 225, it declared that business is property, that the right to carry it on is property, and that a court of equity, by injunction, can protect it against invasion, when necessary and proper under the circumstances of the particular case.

We pass this question, however, because the want of merit in the contention that the case as made did not disclose the commission of a legal wrong conclusively results from a previous decision of this court. The case is Angle v. Chicago, St. Paul, etc., Railway Co. (151 U. S., 1), where it was held that an actionable wrong is committed by one who "maliciously interferes in a contract between two parties and induces one of them to break that contract to the injury of the other." That this principle embraces a case like the present, that is, the carrying on of the business of purchasing and selling nontransferable reduced rate railroad tickets for profit to the injury of the railroad company issuing such tickets is, we think, clear. It is not necessary that the ingredient of actual malice in the sense of personal ill will should exist to bring this controversy within the doctrine of the Angle case. The wanton disregard of the rights of a carrier causing injury to it, which the business of purchasing and selling nontransferable reduced rate tickets of necessity involved, constitute legal malice within the doctrine of the Angle case. We deem it unnecessary to restate the grounds upon which the ruling in the Angle case was rested or to trace the evolution of the principle in that case announced, because of the consideration given to the subject in the Angle case and the full reference to the authorities which was made in the opinion in that case.

*

* * The operation of the illegal dealing in such tickets upon the right of the complainant to issue them in the future, coupled with the admissions of the answer, sustain the express averment as to the requisite jurisdictional amount. Besides the substantial character of the jurisdictional averment in the bill is to be tested, not by the mere immediate pecuniary damage resulting from the acts complained of, but by the value of the business to be protected and the rights of property which the complainant sought to have recognized and enforced. (Hunt v. New York Cotton Exchange, 205 U. S., 322, 336.)

After reading this decision will this committee go before the House of Representatives, composed of statesmen and lawyers, and stand sponsor for a bill which declares that business is not property? Mr. Gompers told you what will happen if you don't change this law, and suggested that it was sure to come if you allow the courts to retain and exercise their present powers as they have done. It was an alarming picture of public disturbance which he painted. Why, gentlemen, when our fathers 120 years and more ago adopted the Constitution they had in mind the possibility of the very things that Mr. Gompers has told us are coming. It was for the very purpose of "promoting tranquillity," "establishing justice," and "securing the blessings of liberty to themselves and their posterity" that they declared that they established this Government, and provided that its judicial power should extend to all cases of law or equity arising under that Constitution, the acts of Congress and treaties, and to all controversies between citizens of different States, and that that power should be vested in the Federal court, and that no person should be deprived of his property without due process of law. What a waste of time it would be for me to stand here contending for the proposition that the courts have power to declare statutes void which conflict with the fundamental law which the people themselves enacted and in express terms made supreme, and who instructed their appointed tribunals to declare void any law in conflict with it.

To say that Congress can declare by statute that not to be property which the uniform decisions of innumerable courts have declared

to be property, which the Supreme Court itself has so declared, and which the common sense of mankind instinctively recognizes as property, and by so declaring it not to be property to withdraw it from the protection of those processes of law which this bill itself preserves for the protection of all other property is simple nonsense. I say it is useless to spend time in discussing it.

Now, in reference to the second section of the bill. Mr. Gompers says that it is an adaptation of the English trade disputes act. That statement is the same old chestnut which he has so often repeated, only to have the statement refuted. There is some such provision as this in the law of England as is stated here, but it came in by way of an amendment of a previous act, the other provisions of which absolutely prohibit the doing of the things which these gentlemen contend that they seek to be protected in doing by this bill.

Mr. McCoy. Will you put the section you referred to in the record, too-the discussion of the English law you referred to?

Mr. DAVENPORT. I do not recall it. Mr. Gompers referred to it. Mr. McCoy. I understood you just now to refer to some other points in the English law.

Mr. DAVENPORT. I say that act is an amendment of the act of 1875, and an examination of the law to which he refers you will put you on the track of the other provisions of that act.

Mr. DAVIS. I understand that what Mr. McCoy wants is to put those other sections in the record.

Mr. DAVENPORT. I suppose that Mr. Emery will be accorded the privilege of talking on this bill when he gets back, and he has all that data and will see that it is provided.

Now I want to get right down to what section 2 of this bill here says about repealing the existing conspiracy laws of the United States. Let me read to you right in this connection its astounding provisions. It is as follows:

SEC. 2. That in cases arising in the courts of the United States or coming before said courts, or before any judge or the judges thereof, no agreement between two or more persons concerning the terms or conditions of employment of labor, or the assumption or creation or termination of any relation between employer and employee, or concerning any act or thing to be done or not to be done with reference to or involving or growing out of a labor dispute, shall constitute a conspiracy or other criminal offense or be punished or prosecuted as such unless the act or thing agreed to be done or not to be done would be unlawful if done by a single individual, nor shall the entering into or the carrying out of any such agreement be restrained or enjoined unless such act or thing agreed to be done would be subject to be restrained or enjoined under the provisions, limitations, and definition contained in the first section of this act.

This section of the bill contains in substance the proposition which Mr. Gompers has always contended for, and now contends for here, that what each one of a number may lawfully do, they may all together agree to do, and that the feature of combination among them does not introduce any new element in the situation. That is his theory. But unfortunately for him, theory goes for very little in jurisprudence unless it meets with the approbation of the courts. And precisely the opposite doctrine has been declared to be the law by the United States Supreme Court. Not only did it so decide in the case of Callan v. Wilson (127 U. S.), but only last term it decided, Mr. Justice Lurton speaking for it, that a law of the State of Mississippi which forbade a combination among wholesalers to be constitutional, which the parties affected by it contended was unconstitutional, advancing

the very position of Mr. Gompers in support of their claim. I will read what that court says in that case

That any one of the persons engaged in the retail lumber business might have made a fixed rule of conduct not to buy his stock from a producer or wholesaler who should sell to consumers in competition with himself, is plain. No law which would infringe his freedom of contract in that particular would stand. But when the plaintiffs in error combine and agree that no one of them will trade with any producer or wholesaler who shall sell to a customer within the trade range of any of them, quite another case is presented. An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes a form of a conspiracy, and may be prohibited or punished if the result be hurtful to the public or to the individual against whom the concerted action is directed.

Other great judges have announced the same doctrine in other courts, but I really think that the matter is so well settled that it would be a waste of time to dwell upon it further here.

I have some copies left of the brief used by us in the Paine Lumber case, which was referred to by Mr. Furuseth the other day which I will hand to the members of the committee. I would like, if I had time, to show you how these great combinations between employers and workmen which existed in that case, and which would be sanctioned by law, if this bill was passed by Congress, but the hour is so late that I must content myself with giving you as many copies of that brief as I can. I think you will find it a matter of absorbing

interest.

And finally, as you so kindly accorded to me the privilege in the hearing on the contempt bill the other day of elaborating some of the propositions advanced by me orally, and of filing a supplemental memorandum, I will solicit the like privilege now.

The CHAIRMAN. I take it there will be no trouble about that; you can have that privilege.

Mr. DAVENPORT. Now one other suggestion. I began this address by referring to what happened to our party in consequence of the Pearre bill. Now I want to ask that this committee will act upon this measure one way or the other, and I do it for this reason. If this bill is to have the support of the Democratic Party, let it be so distinctly understood. But unless we are prepared to suffer from the effects of a like attack to that made upon our party in the last presidential campaign, you should demonstrate that it is not the intention of our party in Congress to make the attack upon the judiciary and upon the rights of man which is embodied in this bill. That can only be done by reporting it adversely.

I thank you, gentlemen, for listening to me so long, and now I want to leave with you this document, being the record in the Bucks case, and I will get others for you so that you may have them, and I shall be greatly surprised if you do not find it a matter of absorbing interest to you as statesmen and as lovers of your country, brought face to face as you are with legislative problems growing out of one of the greatest phenomena ever presented to a free people, a danger that will engulf the institutions of this country unless it is restrained and put an end to.

Mr. McCoy. Mr. Davenport, I would like to ask you this question. In the course of an experience which has been more extensive than that of any other man I know, has it come to your observation that the writ of injunction in its issuance is abused in any way at all? Mr. DAVENPORT. Never. They are really very hard to get.

Mr. McCoy. Is there any suggestion that occurs to you to make for a change in the administration of the law?

Mr. DAVENPORT. No; not even the one contained in the proposition of Mr Moon in the last Congress. Let me say further that there is nothing harder in this world now than to obtain a conviction of a man for contempt of court for disobeying an injunction. As Mr. Walker well said here yesterday, a court of equity is nothing unless its orders are obeyed. But since the decision by the Supreme Court in the Gompers case there is nothing in the world so hard to obtain as sufficient evidence to convict a party of violating an injunction, especially in labor cases. Under that decision you can not call the accused and require him to testify against himself. You must seek your evidence from other sources, and you are relegated to a most difficult if not impossible situation in proving your case, even though you know that a great injury has been done by him in its violation. We brought the proceedings in that case upon the supposition that we could rely upon former precedents. We had precedents in the Supreme Court itself, where parties were brought before it charged with the violation of its own injunction; it had required interrogatories to be filed, and it had compelled the accused to answer those interrogatories under oath, and upon the testimony thus obtained from him it had convicted him and sentenced him for a criminal contempt.

In re Chiles (22 Wall.) was that identical case. But when we did this in the Gompers case, following that precedent, the Supreme Court said that it was error to do so; that he could not be required to testify against himself in such a proceeding. You will appreciate how this makes more difficult what was already difficult before. I think that the great utility of injunctions in labor cases lies in the fact that the workingmen in the unions are not solicitous and anxious to do the things that are forbidden by law, and when a court issues an injunction against them they are disposed like all good citizens to respect and obey it. It is only those who seem to be able to direct and control them who make trouble. And I think some of their lawyers have a good deal to do with it.

In addition to what I have said let me add that Mr. Emery has made a very diligent search of all the injunctions that have been granted by the Federal courts since 1789, and of all the injunctions that have been issued in labor cases, the number and disposition of them the number is astonishingly small

Mr. McCoy. Will he have that compilation?

Mr. DAVENPORT. Yes; he will place it before you; and I want to solicit for him when he returns to town, on next Tuesday or before these hearings are concluded, the privilege of presenting that matter to you and otherwise enlightening you on all these subjects. Mr. WALKER. I would like to speak one or two minutes.

The CHAIRMAN. With the consent of the committee, you may proceed.

Mr. WALKER. Mr. Davenport, my friend, has mentioned me rather freely during the course of his argument. I have no occasion to dispute with him on any of those points, but I shall say to the committee I am in thorough sympathy with his results, but I do not reach those results in all instances by precisely the same track that he takes, but in respect to his practical recommendations to the com

mittee and the whole spirit of his discussion I indorse it entirely. But in respect to some of the details by which he has reached those conclusions I should be obliged to dissent and maintain my own views.

Now, he commented upon a personal friend of mine in very severe language, and that is Col. Theodore Roosevelt. Col. Roosevelt is not here, and if the committee will permit me I will not use very harsh language myself to point out what I think was a misapprehension on the part of Mr. Davenport, and say to the committee that the colonel is not chargeable with the libelous conduct that he ascribes to him. I have examined the letter upon which he based his charge and I have read it elaborately, too, and understand all about it, and he did not read it, and when he was asked to state the purport of it his statement was rather naked and brief. Now, this is the situation. Mr. Gompers stated after the general convention that the Democratic Party was committed to his particular measures.

Col. Roosevelt quoted exactly what Mr. Gompers said and then called upon Mr. Bryan, or some other representative of the Democratic Party, to state whether or not Mr. Gompers was justified in making that allegation or not. Col. Roosevelt did not indorse Mr. Gompers's statement that the Democratic Party was committed to his measures, but Col. Roosevelt did say in that letter that Mr. Bryan had never yet said anything upon the subject and he thought it quite suitable that Mr. Bryan should either avow or disavow Mr. Gompers's allegations that the party had promised to support the measures which Mr. Davenport has criticized so severely. Now, it is perfectly true that the writing of that letter by Col. Roosevelt operated also effectively in the campaign of Mr. Taft, because Col. Bryan did not take up the challenge, so that considerable effect was made upon the public mind to the effect that Mr. Gompers might not be so far wrong in offering to support the Democratic Party. The measure Mr. Gompers was advocating was what is now known as the Wilson bill, but if he did indorse that bill Col. Roosevelt knows that what Mr. Gompers said on the subject was not justified by anything the Democratic Party had ever said.

Mr. DAVENPORT. But didn't he attempt in that letter to make the people of this country believe that the Democratic Party if it was successful in that campaign would enact such measures as this bill? And didn't that suggestion, which was really false so far as the party was concerned, result in its defeat?

Mr. WALKER. No. I read it; and all he did say was to call upon Mr. Bryan, the candidate of the Democratic Party, to either indorse or repudiate Mr. Gompers's statement, and he did not say anything which constituted an approval for Col. Bryan or anybody else that Mr. Gompers had agreed to support his measures. He put Mr. Bryan upon the witness stand and demanded that he should declare himself upon that point. That was, as I think, a shrewd and able transaction and it did have a very large effect, because inasmuch as Mr. Bryan did not reply at all during the campaign, it did have a very beneficial effect in behalf of the Republican candidate.

Mr. DAVENPORT. Be that as it may, and however Mr. Walker may think misrepresentation of a great party by his idol, the Colonel, "a shrewd and able transaction," and therefore justifiable, that fateful letter will be before you and will speak for itself. Mr. Walker, by the way, yesterday also attempted to demonstrate and perhaps