right of Federal courts or is merely a matter of procedure. If the former, Congress has no right to prescribe the issuance of notice; if the latter, Congress has the right. Independent of this question, however, under either condition, the passage of the proposed measure would involve the establishment of a policy radically unjust. Mr. FULLER. I only wanted your opinion.

Mr. MONAGHAN. I have given it.

STATEMENT OF MR. O. M. BROCKETT, OF DES MOINES, IOWA, BEFORE THE HOUSE JUDICIARY COMMITTEE.

Mr. BROCKETT. Mr. Chairman and gentlemen of the committee, I am here to protest against the favorable report of this committee upon what are known as the "anti-injunction bills" at the instance of the Business Men's Association of Des Moines, Iowa, and of the Manufacturer's Association of the State of Iowa. The nature of these associations has already been sufficiently explained. As yet they have no methods, and it is not their purpose to resort to any means to coerce the employers of the country to unite with them or to in any wise cooperate with them in the execution of their purposes. Whether in the evolution of the labor problem they shall be driven to imitate the methods of labor organizations in so far as they may be identified with the side of the employer or of the public in such controversies perhaps depends much upon the future practices of the unions, but I am disposed to believe that it depends even more upon the attitude and policies of the Government respecting the questions involved.

Before proceeding to what I have had in mind to say to you on the general subject under consideration I desire to refer to a subject touched upon by Mr. Tenney, of Chicago, in concluding his argument and in answer to a question by Mr. Gillette, and that is the subject of the power of the courts to do what is inaccurately expressed as enjoining crime. The question is asked whether or not the punishment of crime is not an adequate remedy, and it was suggested that a negative answer involved confession that such inadequacy must result from failure to enforce the penal laws and not from the fact that such laws do not afford adequate remedy. This is a fundamental misapprehension. The punishment of an offense against the public must not be confused with a redress of a private grievance. They have no relation to each other whatever.

The civil courts in proceeding to award redress take no note of the question as to whether or not the acts complained of constitute a crime against the public, and this irrespective of the question as to whether or not the remedy sought may be an action at law for damages or an appeal to the chancery court for equity relief or protection. Take the case cited by Mr. Gillette, a conspiracy to commit arson. If the purpose of the conspiracy were executed, no one would ever think of the fact that the perpetrators had been or might be punished for the crime as a reason why the owner of the property destroyed should not have compensation. In like manner, if before the conspiracy is executed the courts were applied to to prevent it, no thought should be taken of the fact that the crime, if committed, may be punished. The fact that such crimes are committed notwith

standing the laws providing for their punishment demonstrates that they are not an adequate remedy.

Suppose that when some of the Territories now seeking admission into the Union as States shall be admitted and organized as such and shall, as many, if not, indeed, most of the States have done, enact a criminal code and repeal all common-law crimes, and suppose that in doing so by an oversight no statute is provided for the punishment of such a conspiracy as Mr. Gillette assumed in his hypothetical question. In that case, of course, there would be no remedy whatever without injunction except the common-law right to recover for damages after being inflicted. This idea might be followed out as to all torts which result in or threaten damages. The argument of the other side of the proposition would lead to the ridiculous result that just as fast as the legislative policy of the State might find it expedient to denounce these torts as offenses against the public, remedy for the private wrong would be lost to the person injured. The discussion reminds me of that question which was rife and spirited some years ago with reference to the allowance of punitive damages in actions for tort, which were also subject to punishment as crimes. It was very strenuously contended, as you, being lawyers, will all remember, that the allowance of punitive damages subjected the defendant to double punishment. There was much plausibility in this argument, and there are no doubt many lawyers and courts now who think that it was sound in principle. But all of us know that the rule has been finally generally settled beyond the possibility of a general revival of the dispute, that, notwithstanding a fine or punishment that may be imposed for the same act, exemplary damages may also be allowed in the civil action for the same wrong. This illustrates how thoroughly the courts have committed themselves to the doctrine that in actions for a redress of private wrongs no notice whatever will be taken of any wrong against the public which may be involved in the same controversy.

Turning now to the general subject, I wish to observe that familiarity of surroundings is conducive to clearness of reasoning, and, as I must confess, what, indeed, must be already apparent, that I find myself in exceedingly unfamiliar environment, I am sure, Mr. Chairman, that your committee will allow me to resort to a little device which may aid me in part to forget that I am away from home. I shall make believe that I am appearing in a cause in court. The matter in hand is a bill in equity presented at the bar of the House by certain persons claiming to represent a certain class of our citizens seeking to enjoin the courts from enjoining the complainants in the execution of their pleasure in labor disputes. The averment stated as a cause of action is that the defendants to the bill-the courts-in issuing injunctions and restraining orders have, and will continue to, abuse their powers and oppress the complainants. My associates and I appear for the defendants.

Speaking for myself personally and begging leave to make a personal reference, I wish to say that in my twenty-five years of general practice at the bar I have had no specialty, such as sometimes is supposed to develop a bias in the mind when considering the justice of such controversies as the instant case. I have never been counsel for a railroad company or for any great corporation. My clients, friends, and associates, both in and out of my practice, have, A-I-088

in general, been what is meant by the term "common people," and the feeling and interest that I have in the present case is, if I am able to understand myself, more that of a citizen of the country than that which might be supposed to move the representative of a special interest. I believe, gentlemen, that I am without prejudice and that I have as much real sympathy for the struggling poor everywhere as those who make it the business or profession of their lives to go about expressing such sympathy.

Turning now to the complaint under consideration, we observe that the bar of the House has referred to this committee as a referee to report findings of fact and conclusions of law. The defendants demur to the bill, gentlemen, on the grounds, first, that the court is without jurisdiction to grant the relief sought, and, second, because the facts stated do not entitle the complainants to the relief sought.

But this first proposition we subdivide as follows: First, that Congress is without power to grant the relief, because to attempt to do so would be the invasion of the province of one coordinate branch of the Government by another, and an attempt to interfere with the inherent powers of the courts. The other is that it would be class legislation of the sort which is inhibited by the Constitution and contrary to the genius and principles of our Government.

Before proceeding to examine these propositions, permit me to indulge in a general observation of your duty to consider the first of them. How much influence should the questionable constitutionality of the proposed act exert upon the consideration of the policy of its passage by a legislative body? The great care exercised by the framers of our Constitution to divide the legislative, executive, and judicial functions of the Government into three departments and to make each paramount within its own province, together with the history of abuses resulting from the exercise of two or more of such functions by the same branch of other and former governments, has led in our country to very great concern on the part of those clothed with the duty of discharging these several functions not to encroach upon the other. Hence we often find, in the opinions of the courts, language showing profound deference for the authority and power of the legislative and executive departments, and uniformly expressed reluctance to challenge their acts as transcending the bounds erected by the Constitution, except in instances which so clearly appear as to leave them no choice in the discharge of their duty.

It is equally the duty of the executive and legislative departments to maintain the same deferential respect toward the judicial department, and to constantly exercise the same concern not to invade its province or to unjustly provoke controversy as to whether or not they have done so. I have no doubt that your committee and the department of the Government with which you are connected, now, as in our past history, will always hesitate to take a step which necessitates serious consideration by the judiciary as to whether or not it exceeds your just limitations. If the legislative department should at every possible opportunity go just as far as the judicial department would tolerate, it would seem to require no great prescience of statesmanship to see that the barriers erected by the Constitution. would soon become a mere fiction, instead of a restraining and vital force. It has often been pointed out that the danger to our institutions lies in the fact that encroachments are insidious, and that

their destruction, if not guarded against, is a growth and evolution, rather than any direct and open assault.

One of the old constitutional lawyers, whose name has escaped me and whose exact language I can not assume to quote, once expressed a thought something like this: That in troublous times, when the great sea of human life dashes itself against the barriers which have been erected to restrain it, we need the full strength of an unbroken Constitution. And I scarcely need to say that the cases to which the proposed bill will apply, almost without exception, will arise during troublous times.

At the hearing before your committee on the bill introduced at the last Congress Hon. James A. Beck, of New York City, and Hon. Levy Mayer, of Chicago, submitted most able discussions of the constitutionality of that bill, which might be examined with profit in connection with the one under discussion. Some of the points made and authorized cited by Mr. Mayer would appear especially apt. He makes the point that while the Federal courts issuing injunctions in the cases referred to have been created by act of Congress, that, notwithstanding, Congress did not create the judicial department of the Government. The language of the Constitution is that "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." Again, that "judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, * between citizens of different States," etc. Thus it is seen that, while Congress was given power to create the courts, the power which such courts should have and exercise when thus brought into existence is defined and bestowed by the Constitution.

versies

* *

* * *

contro

I shall not here take the time to quote the authorities cited by Mr. Mayer, but would refer the committee to his discussion and the authority cited by him, beginning on page 403 and continuing to the end of his statement, as published in the complete hearings before this committee at the last Congress. His proposition that the powers of the courts to grant relief by injunction is an inherent power with which the other departments of the Government can not interfere, I submit, is eminently sound and amply sustained by the authorities cited by him.

But if this were not so, there can be no question but that the power to issue restraining orders in all cases in which the power exists upon final hearings to grant a permanent injunction, and in all cases in which the exercise of the power is necessary to preserve the rights of the parties until they can have their day in court and an adjudication upon the merits of the controversy, is an inherent power. There are no courts of original general jurisdiction which do not. assume to exercise such power, and I recall no instance in which its nature has been discussed by the courts or its exercise defended where it is not put upon the ground of necessity and declared to be an inherent power. A familiar instance is that class of cases in which appeals are taken where the determination of the appeal can not possibly afford a remedy for an erroneous judgment by the trial court unless the appellate court issues its restraining order to preserve the existing status until the determination of the appeal.

The power thus exercised is precisely of the same nature as that exercised by courts in contempt proceedings. They say, and say truly, that when the Constitution created their department of government it must have intended that it should be efficient, that it should do all of the incidental things which may be found to be necessary to discharge the judicial function. This power, precisely the same in its nature, is exercised by legislative bodies. They punish for contempt. They administer discipline to disorderly members and officers of their body, not because of any expressed authority, but because of necessity. The very power which brought them into effect must have intended that they should possess the energy and vitality to discharge their expressed functions.

I desire to say at this point that if I had had no other preparation for the discussion of the constitutional questions to which I address myself than that which could be made after being commissioned to appear here by the organizations I represent, I should certainly have desisted from the presumptuousness involved in doing so before a committee of lawyers, for I took the train for my journey here from my home in Des Moines within about an hour after receiving the notice. But within the past two years it so happened that causes were placed in my charge which were presented to the supreme court of Iowa which involved the question of the inherent powers of the courts as exercised in contempt proceedings, in proceedings to admit and disbar attorneys, as also the question of class legislation, and while I can recall the examination of many authorities at the time the research was made for these cases, which involved the application of the doctrine of the inherent powers of courts and their freedom from legislative interference, I am only able to give the references to a few of those which were cited in the briefs in the cases referred to.

One of the most exhaustive discussions on the subject of the inherent powers of courts as exercised in the admission to and the expulsion of attorneys from the bar I found in the case of In re Day (181 Ill., 73), and in an article referred to in that case, written by the leading attorney who prepared the brief in support of the inherent power of the court in such proceedings, published, as I now remember, in the Seventeenth Harvard Law Review. The case of In re Branch (57 Atlantic, 431) is also upon the same subject. An examination of these will show that it is clearly and strongly contended that the courts have the inherent power to control such matters, and that because the power is necessarily inherent the legislature can not meddle with it.

In the case of Drady against the District Court, an Iowa case published in 102 N. W. Rep., 156, this language is used:

Now, the district court is a constitutional court, and primarily it derives its authority to act from the provisions of the fundamental law of the State. That such courts have from time immemorial possessed the inherent power to punish for contempt is conceded.

In ex rel Crow, Attorney-General v. Shepherd (Mo.) (76 S. W. Rep., 79), the court said:

It is in the determination of what acts constitute such offenses (contempt) and the extent to which courts find it necessary to ascertain its existence and determine its necessary punishment that the courts exercise their inherent power. Any attempt, therefore, to declare what are such offenses or what the