why such a small percentage of such actions are ever prosecuted to final adjudication in the court is that it is almost universally true that there is no defense to them. If the facts stated in the bill are true, the complainants are almost without exception entitled to the relief demanded, or at least some substantial relief.

If it so happens that some person is made a party defendant to such a bill who has taken no part in the lawlessness complained of and does not intend to do so, he has no interest in the matter and is not harmed by any order or decree that may be entered except to the extent that he may be made liable for costs. Hence the fact adverted to, viz, that but a small percentage of such actions proceed to final judgment upon the merits, after a contested hearing, being accounted for upon the two grounds mentioned, first, that the subject-matter of the controversy as stated by Mr. Gompers is eliminated before necessity of such a judgment, and second, because of the fact I have just mentioned, that there is no defense, furnish, to my mind, one of the strongest reasons why the power should not be interfered with and the most conclusive evidence that it has not been abused.

I will conclude this branch of the subject with just one further observation, viz, that while the power to issue restraining orders is an inherent power, it might be contended, with some show of reason, that the power to issue either temporary or permanent injunctions is not. Therefore, acts passed by the legislature prescribing that notice of application for temporary injunction shall be given, and either fixing the time and character of such notice, or directing the court to do so, may be within the legislative province. But, in instances where that has been done it has never, to my knowledge, been construed to be an attempt to divest the courts of the power to issue restraining orders.

For instance, in my own State we have a statute which prescribes that applications for temporary injunctions shall be heard upon such notice thereof as the court may order, and yet both our nisi prius and supreme courts have to my personal knowledge for many years issued restraining orders on proper showing, without notice, pending the hearing of the applications for temporary injunctions or other proceedings, and I have never known the practice to be questioned. I think the member of your committee from my State, Judge Birdsall, will corroborate these statements with reference to the practice there, and I will add that there are cases which discuss the difference between the nature of restraining orders and temporary injunctions. and that so far as they have come under notice, they all agree that there is an essential difference. Perhaps this may be an explanation for the language of the Gilbert bill, which seeks to divest the courts of the power to make such orders as well as to issue temporary injunctions.

Having established, as I believe I have, the fact, which it seems to me that everyone with knowledge of actual conditions in labor trou bles knows without other proof that in the cases growing out of labor disputes, as in other cases, the necessity for the exercise of the inherent power to issue restraining orders exists, we must then look to some other ground which can be cited to sustain the proposed class legislation as being natural and just.

Can it be said, either from past experience or present prospects as to the future, that the power has been or will be abused more in this class of cases than in others in which the remedies may be sought?

Upon this question it might be both interesting and profitable if we had before us a list of the other cases in which the courts have exercised the same power. I have not had the opportunity for research as to these. Members of this committee will doubtless recall from their own experience instances in which the same power has been exercised in very dissimilar cases. I am unable to think of any in which it has ever been done, or to imagine any in which it is possible that the power may be exercised in the future, where it is less likely to be abused than in those cases where its exercise has given rise to the introduction of this bill.

We know from the nature of things that employees who have abandoned their employment and terminated the same have no property or other valuable rights which are at all likely to be infringed by these judicial orders. They have some peculiar economic notions, for the existence of which their leaders have assumed very great responsibility. But the rest of the public know that these eccentric ideas as to their rights are wholly inconsistent with the rights of the independent workman and the employer.

I submit that the real grounds of the grievance of the unions and leaders is that the restraining order interrupts the device of picketing as a weapon in the prosecution of their controversies with employers and nonunion workmen, and that they are unable to point to a single instance of substantial violation of even what they themselves claim to be their rights, aside from picketing and boycotting, the latter being a form of lawlessness that I believe is now generally conceded by all persons familiar with the subject to be such. Concerning picketing, Judge McPherson, of Iowa, said. in the case of Union Pacific Railroad Company v. Ruef (120 Fed. Rep., 121):

This picketing has been condemned by every court having the matter under consideration. It is a pretense for persuasion, but is intended for intimidation. And in the case of Atchison, Topeka and Santa Fe Railroad Company v. McGee (139 Fed. Rep., 582), he used this language:

There is and can be no such thing as peaceful picketing any more than there can be chaste vulgarity or peaceful mobbing or lawful lynching. When men want to converse or persuade they do not organize a picket line. When they only want to see who is at work, they go to see and then leave and disturb

no one.

The appellate court of Illinois, in a case which I am not now able to cite, paraphrases and amplifies this language, as follows:

The picket system once established, intimidation, assault, slugging, and bloodshed follow as naturally and inevitably as night follows day. There can be no such thing as peaceful, polite, and gentlemanly picketing any more than there can be chaste, polite, and gentlemanly vulgarity or peaceful mobbing or lawful lynching. It is idle to talk of picketing for lawful and persuasive purposes. Men do not form picket lines for the purpose of conversation and lawful persuasion. Such picketing as is established by the evidence in the case at bar is intended to annoy and intimidate, whether physical violence is resorted to or not, and is not lawful in either case. Courts should be practical. When they form an opinion from evidence it must be a practical one. They should touch earth at every step. They have no license for stargazing or for indulging in poetic fancy. In imagination and in theory a peaceful picket line may be possible, but in fact a picket line is never peaceful. It is always a form of mutual warfare and quite inconsistent with everything not relating to force and violence; it is a form of unlawful coercion.

What reason can the gentleman assign; what can members of Congress who vote for such a bill bring forward to the judiciary to justify denying to them the power, upon the presentation of a bill properly verified and supported by affidavits, showing the existence of this form of unlawful coercion," to issue a restraining order that it shall cease and be restrained pending the hearing upon application for a temporary injunction or the final trying of the bill? How can it be contended upon the one hand that such order will not protect substantial and fundamental rights or, upon the other, that it is at all likely to violate any such rights?

The circumstance has been adverted to here that disappointment was expressed by Senator Hoar and others that the provisions of the Sherman antitrust act should ever have been construed to apply to combinations of labor organizations. These persons are credited with the statement that no one connected with the passage of that act ever thought of such a result of its operation.

Who is there here to promise that history will not again repeat itself if the anti-injunction bills should become the law?

I am able to bear witness from personal knowledge, gentlemen, that employers' organizations, like those of their employees, have their radicals. I have heard them earnestly urge the necessity of making their organzations the exact counterpart of the unions, and vehemently contend, with perfect sincerity, that a condition of necessity exists creating the right above the law to protect themselves. their property, and their servants by precisely the same tactics which the unions resort to to enforce their so-called rights. In its last analysis this is, of course, the argument always resorted to by those who attempt to justify lynch law, or the so-called taking of the law into their own hands. Employers are few in numbers compared to the total number of their workmen. Combination and concert of action is much more practicable and liable to become much more effective among them.

They can easily congregate on short notice from all sections of the country to mature plans for mutual support or common warfare. They can have the benefit of the experience of labor organizations, and can readily adapt their methods and machinery to their own uses. Indeed it is fair to presume they can and will improve upon their ingenuity. If such a condition shall ever arise, it will be due mainly to the loss of faith in the efficiency of the Government. And in that event, their position will have this advantage of that over workmen, that whereas the rebellion of the latter against the law is due to their refusal to accept its edict as to what are their rights, that of the former will be due to the failure of Government to protect them in the enjoyment of what it declares to be their rights.

But in such conflict both parties would be in the wrong, and I humbly submit that intelligent and efficient government can do nothing less than remain in position to restrain both. And it would be less strange than many things that have happened to find within the next decade that its power and duty to do so will be oftener involved by those who now seek to destroy the power than by any other class of persons.

I have concluded, gentlemen, what I have had in mind to say upon the demurrer to the complainant's bill. Assuming that you will take

the demurrer under advisement and proceed to consider the evidence subject to the ruling on the demurrer, I invite attention briefly to that subject.

Mr. Goinpers, at the hearing before this committee at the preceding Congress, produced a considerable number of injunction writs and orders which had been issued by the courts. It is possible that some of them are too broad to be defended upon strictly legal grounds. I think one instance was cited in which the appellate court struck out a clause which prohibited some act which that court held to be the exercise of a legal right and could not be prohibited. But what a poor and pitiable showing this all makes compared with that which is made by the history of the conduct of the interests supporting this bill, either in violation of such orders or before such orders were actually issued. And this suggests a contrast of the records of the alleged wrongs inflicted by the judiciary of this country in abusing the power under consideration and the record of wrongs inflicted by those who are now arraigning these tribunals.

It is fair, legitimate, aye, it is necessary argument in the consideration of this question to determine whether or not greater wrongs will result from the retention of this power in the courts or whether more injury will result from paralyzing their power to the extent sought by these bills. Suppose that the record were exactly the reverse of what it is. These gentlemen could point to the catalogue of crimes as well as lesser violations of human rights which are now charged to those who have violated such writs or orders, or committed them before they could be served, as the record of wrongs committed by the judiciary of our country in the exercise of their inherent powers, and, on the other hand, the judiciary could cite nothing in extenuation except such wrongs committed by organized labor as these leaders have been able to point out as having been committed by the judiciary, how very different the case would be.

What a contrast such transposition of parties and records makes. And when we think of the wrongs that have been righted, the faithful and patriotic service that has been rendered by our upright judiciary, on the one hand, and the damage and wrongs that have been inflicted by rioting or lawless workmen and their sympathizers on the other, what a spectacle would be presented by the national Congress of the country joining them in their condemnation of the

courts.

We are now considering a question of fact: Does the evidence sustain the averments of the complaint that the courts have abused their inherent powers and oppressed complainants in the matter of these orders?

I have pointed out that this is controverted by the defendants, the courts. Not only is issue joined upon that question, but such is the testimony of every court which ever issued a restraining order, for the very issuance thereof is the solemn testimony of the court under demurrer that such being true their evidence is conclusive upon the courts in the fulfillment of its oath of office to issue the same, and I meant to have suggested in support of the second ground of the demurrer that such being true their evidence is conclusive upon this tribunal, and that therefore the complaint does not state a cause of action. But assuming the law may be found against the defendants as applied to the demurrer, I am now respectfully submitting to

you to find as a fact whether or not it is true that the courts have abused their powers and have been and will continue to be guilty of oppressing the complainants.

And here it is proper for you to consider the credibility of the parties as witnesses. We have been wont to speak of the defendants as honorable-the honorable courts. Is it true that these tribunals have been recreant to their trust and unworthy of this appellation? Is it true that they have forfeited the respect in which they have been held in the past history of the country, and that this tribunal will now solemnly find and record such fact? It is proper to suggest that the evidence of the complainants is discredited. In view of the crimes that may have attended the assertion by them of their so-called rights and their responsibility for conditions provoking the alleged oppres sion by the courts, that they are here now demanding a law to prevent their punishment, and in view of the fact that charges made upon this hearing that they have generally supplied funds to provide for the expense of the defense of the criminals, that they have not expelled them from membership in their organization, or in anywise sought to forego any advantage that might result from such crimes to their side of their controversy, have passed unchallenged, it would seem a just observation that these things are all inconsistent with the possession of good reputation for general moral character and truth and veracity among people to whom they are known.

In the hearing before this committee on anti-injunction bills under consideration at the last Congress it was suggested by some member of the committee somewhere in the report, as I remember, that bills upon the same subject have been introduced regularly at several preceding Congresses, and that up to that time no protest had been made to the committee against their adoption. This subject was commented upon, and, as I remember, General Grosvenor appeared at that session and addressed the committee in support of his bill, which I understand to be substantially identical with one now before your committee.

In that address he commented upon the appearance of numerous persons to protest against the bills. He characterized such persons as lobbyists and their protests against the bill as hysterical. I think this circumstance is worthy of the very serious consideration of this committee. It signifies something. I have my opinion as to its significance, and I desire to say that the circumstance, as I view it, does not imply any threat such as I understood Mr. Gompers to make in concluding his statement, but it does imply an aroused public sentiment upon the question of labor disturbances and the disposition which seems to manifest itself in some official quarters to play a game of politics with this question.

The people who are responsible for the presence of men who have appeared here in opposition to these bills are honestly and patriotically seeking to contribute to the solution of the labor problem and to the promotion of peaceful and prosperous industrial conditions. They do not believe that temporizing with crime or the withdrawal of any of the means for its prevention will contribute to these ends. On the contrary, they believe that additional remedies should be provided, and the present positions strengthened if possible. There is no excuse for the ignorance of any person as to the rights of labor, organized or unorganized, in this country, and, hence, no danger that writs violating such rights will be issued. Any man with ordi