To which Mr. Brennan received the following reply:

Mr. REDMOND S. BRENNAN,

THE UNITED STATES COAL Co.,
Cleveland, Ohio, May 25, 1915.

United States Commission on Industrial Relations,

Chicago, Ill.

DEAR SIR: In reply to yours of May 13, inclosing a transcript of testimony given by Joseph Kobylak, I have carefully read the testimony of Mr. Kobylak as given to the commission. I am unable to certify the statements of Mr. Kobylak, except the one that he has been arrested many times by the authorities of the State of Ohio. In the last few years Mr. Kobylak has been known to us as an agitator of the most vicious character, and was sometime past in the employ of our company. During the term of his employment our company was unable, most of the time, to operate its business where he was located. Mr. Kobylak became such a nuisance in the community that the authorities, in response to public sentiment, have had Mr. Kobylak in jail many times. As to his being arrested for treason, that was an act of the State of Ohio against Mr. Kobylak, and I know of no coal operator who had anything to do with it, or were called upon by the State to make any affidavits against him.

As a miner, Mr. Kobylak, to my mind, has not worked inside the mines or produced a pound of coal for some years, and has been able to support himself entirely by agitation, and gets his support by contributions from the men who did work.

I do not think that Mr. Kobylak represents the miners of the district in which our mines are located nor of the State of Ohio.

I am inclosing a copy of an editorial in the Steubenville (Ohio) Gazette, with reference to Kobylak being before your commission. Under separate cover I am returning to you the transcript sent me.

Yours, very truly,

The following is the editorial:

H. E. HILLARD.

"Kobylak, the Dillonvale I. W. W. anarchist who spent some time in Steubenville jail has been ventilating himself before the Industrial Relations Committee. If this pestiferous individual had his just rights' he would now be serving time in the Ohio Penitentiary for inciting to riot, or in a national penitentiary for treason. Meanwhile, according to the action of the mine workers on Wednesday, he will have to either get out of their union or cease to be an I. W. W., and maybe that will stop his power for disturbance in this part of the country.-Steubenville. Gazette, Wednesday, May 12, 1915."

STATEMENT OF JUDGE R. M. WANAMAKER.

Chairman WALSH. I now read into the record, by request, a letter from R. M. Wanamaker, justice of the Supreme Court of Ohio, as follows:

"To my mind the most serious blow that the working world has sustained for many a year is the recent decision of the Supreme Court of the United States in the case of Coppage v. The State of Kansas. We had the same question up in Ohio under an identical statute. The majority, of course, followed the Supreme Court, but I prepared a dissenting opinion, a copy of which I am forwarding you under separate cover. Along legal lines, you may also be interested in knowing that I prepared two articles for the Saturday Evening Post, published September 19 and 26, entitled 'The man on the bench.' It was my chief purpose in these articles to hold the 'man on the bench' entirely responsible for the kind of law administered and the manner in which it was administered, with all its delay, technicality, and expense.

"Permit me to call your especial attention to Article III, section 2, of the Constitution of the United States, defining the jurisdiction of the Federal Supreme Court:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. IN ALL THE OTHER CASES BEFORE MENTIONED THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS TO LAW AND FACT, WITH SUCH EXCEPTIONS AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE.'

"The capitalized portion of this quotation suggests the question as to whether or not in passing upon the constitutionality or unconstitutionality of State and Federal statutes there should not be certain regulations imposed

upon the Federal Supreme Court whereby a mere majority should not be allowed to declare State and Federal acts contrary to the Federal Constitution, as in the Coppage case. Courts universally hold that before any such statute may be declared unconstitutional it shall be clearly so, and the Supreme Court of the United States has again and again held that it must be unconstitutional beyond all reasonable doubt. Now, how can a statute be held to be clearly in conflict with the Federal Constitution when five or six judges hold that it is unconstitutional, and four or three, respectively, hold that it is not unconstitutional? We have a provision in our Ohio Constitution which, in certain cases, requires the concurrence of all the judges save one (we have seven judges) to hold an act unconstitutional.

"It seems to me that in this enlightened age, when, in the exertion of wholesome and progressive police power, State legislatures and Federal Congress are endeavoring to elevate the condition of men, provide additional safeguards for their health, their life and limb, etc., such legislation should be further protected by preventing supreme courts from nullifying the same with the reckless abandon heretofore indulged.

"The above section of the Federal Constitution unquestionably provides ample power for the Congress of the United States to place such limitation upon the Supreme Court, for all these questions arise under their appellate jurisdiction."

And I also read in evidence in connection with that letter the dissenting opinion of Judge R. M. Wanamaker and read this portion thereof:

"Too many judges know as men what they refuse to know as judges. It is a matter of common knowledge, of which all courts should take judicial notice, that there is constant conflict in some sections of the industrial world between capital and labor; no matter what the cause, whether it be bad leadership and advice on the part of labor, or bad leadership and advice on the part of capital, or both. Those conflicts are of such frequent occurrence and at times so serious in their nature as to shake the very foundations of popular government. We can not forget the Homestead strike of 1892, the Chicago railroad strike of 1894, the great anthracite coal strike of 1902, the Colorado fuel and iron strike of 1914, and many others might be named, as showing how the stability and security of the very foundations of government are seriously menaced. "Can it be said that a State legislature having these industrial conditions in mind might not legislate in a manner to reduce or minimize the conflict between capital organized on the one side and labor organized on the other by denying to either the right to destroy the other? Indeed, what can be more important than domestic peace and safety?

"The Fathers so recognized it in the preamble of the Federal Constitution, in which they announced that one of the great purposes of government was 'to insure domestic tranquillity' and evidently the Legislature of Kansas, as well as Ohio, whose motives can not be questioned in the enactment of this legislation, may have their acts fairly reconciled with this high purpose of preserving domestic tranquillity by preventing the exercise of coercion by the employer upon the employee.

"Suppose the Legislature of Kansas, or of Ohio, had passed an act providing that no employer by himself or his agent shall coerce any of his employees into voting any ticket, or for any officer that he desires to vote for' or 'that no employer by himself or his agent shall coerce any employee into joining or attending any church or lodge' or providing that no employer by himself or his agent shall coerce any employee into buying at the company's store,' would it be seriously contended that such statutes were in violation of the liberty of contract, even as construed by those courts that have seemed more eager to protect property rights than personal rights?

"Again the opinion says:

"Can it be doubted that a labor organization-a voluntary association of workingmen-has the inherent and constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with nonunion men? Or that a union man has the constitutional right to decline proffered employment unless the employer will agree not to employ any nonunion men? (In all cases we refer, of course, to agreements made voluntarily, and without coercion or duress, as between the parties.)'

"Again we see the insidious and strained effort to get away from the 'coercion' of the statute.

"The illustration is not apropos or analogous. In order to be so you must add the element of coercion. You would then have an instance of where an employee was using coercion to induce a nonunion man to join the labor union or to quit the employment. You would then have the same coercion by employee as is prohibited by the statute to the employer. Coercion upon the part of one should be as unlawful as coercion upon the part of the other.

"This coercion is in the nature of a secondary boycott. Employers for years have sought, and finally obtained, the support of courts in enjoining what is known as the secondary boycott' upon business. In effect, this is a 'secondary boycott' upon labor for it is directed not against the individual employee but against the labor union.

"This opinion goes much further, and is much more drastic, than anything heretofore pronounced by a court, or even demanded by the National Association of Manufacturers, of which John Kirby, jr., is president, as appears from their fundamental principles touching labor unions. These planks are as follows: "1. Fair dealing is the fundamental and basic principle upon which relations between employees and employers should rest.

"2. The National Association of Manufacturers is not opposed to organizations of labor as such, but it is unalterably opposed to boycotts, blacklists, and other illegal acts of interference with the personal liberty of employer or employee.

3. No person should be refused employment or in any way discriminated against on account of membership or nonmembership in any labor organization,' etc.

"There is a substantial and well-grounded public opinion that courts of last resort, and particularly the Federal courts, are too eager to nullify remedial and regulatory legislation enacted by State legislatures under their police power in the interest of the public peace, safety, life, limb, health, and morals. The law is not a mummy nor a straightjacket. It is presumably a live, elastic thing, adjusting itself to the changed and changing conditions of our social, political, industrial, and commercial life. It must of necessity, therefore, be a growth, an evolution, keeping pace with the advancement of our twentieth century civilization.

"This attitude of our courts toward the legislative exercise of police power by the States, in matters that are purely State affairs, has caused a substantial loss of public confidence in courts that is too patent to be denied. While courts are unanimous in holding that such statutes should not be declared unconstitutional unless there is an obvious repugnance' between the statute and the Constitution, or unless the statute is unconstitutional beyond all reasonable doubt; yet an analysis of too many decisions of our courts would seem to indicate that the statute was declared unconstitutional, not upon such clear conflict, but upon some whim, caprice, or predilection of the court rather than by sound reason or the laws of logic.

"The decision in the Coppage case is peculiarly unfortunate, not only because it nullifies the Kansas statute and the Ohio statute, but in a large number of other States similar statutes that have been in force for years are also nullified.

"Millions of workingmen and working women, and even working children, not only those who are now members of some labor organization, local, State, or national, but those who may hereafter desire to become such, are all most intimately, seriously, and prejudicially affected by this decision.

"In the hope that the law made by the Supreme Court of the United States in this case may not become the fixed and settled policy of our courts, but that the same may in due course be reversed and labor be given its equal rights with capital, this dissenting opinion is respectfully submitted.

"It would be impossible to indorse too favorably the very able dissenting opinions of Justices Day, Holmes, and Hughes."

This case was the case of William H. Jackson, chief of police of Cincinnati, against Saul Berger; dissenting opinion by Judge R. M. Wanamaker.

ADDITIONAL STATEMENT OF MR. THEODORE SCHROEDER.

My name is Theodore Schroeder. I reside in New York City, and I am a lawyer without paying clients. For the greater part of the past 13 years I have devoted my time to the constitutional, legal, and social aspects of the problem of freedom of speech and of the press.

The purposes of the Free Speech League, as stated in its articles of incorporation, are:

"The principal object for which said corporation is formed is as follows, namely, by all lawful means to promote such judicial construction of the Constitution of the United States and of the several States and of the statutes passed in conformity therewith as will secure to every person the greatest liberty consistent with the equal liberty of all others and especially to preclude the punishment of any mere psychological offense, and to that end, by all lawful means to oppose every form of governmental censorship of any methods for the expression, communication, or transmission of ideas either by use of previous inhibition or subsequent punishment; and to promote such legislative enactments and constitutional amendments, State and national, as will secure these ends."

In addition to this I have had a great opportunity of knowing the sentiments of various classes of radical agitators with whom I have come in contact because of my work for freedom of speech, and also by frequent attendance as a lecturer and in the audience of radical clubs composed of Socialists, Anarchists, Single Taxers, settlement workers, and other social uplifters.

I assume that, primarily, I am to speak upon the problem of freedom of speech and assembly as these may relate to the agitator who concerns himself with economic and industrial problems. My immediate purpose will be to furnish illustrations of the various means by which the agitator is being suppressed and to give such information as I can as to the attitude of the agitator and workinginan toward the courts, and to indicate how far judicial lawlessness, and under the forms of law, may contribute to the popular unrest and distrust of courts.

A CONSERVATIVE COMPLAINT AGAINST COURTts.

It may be worth while at the outset to quote some characteristic attitudes toward the courts. The first opinion which I will offer is a very brief one from James C. Carter, for many years the recognized leader of the New York bar. These words were uttered in a lecture delivered at the Harvard Law School and subsequently published in book form. Mr. Carter says:

"The written law is victorious on paper and powerless elsewhere. The Attorney General is sensible of the feebleness of the command resting upon him to enforce a law the enforcement of which would send a hundred of the most eminent citizens to jail and throw the country into confusion." Origin and Functions, p. 213.)

(Law, Its

Next, I am going to offer some opinions from agitators. Those opinions are not so remarkable in themselves, but are important because of the circumstances under which they were uttered and because of the fact that they have been many times republished since and seem to respond to a popular demand.

The first of these opinions is one expressed by Jack Whyte before the court in San Diego, Cal., when he was called up for sentence resulting from his activities in the free-speech war which occurred in that city. Jack Whyte said:

"TO HELL WITH YOUR COURTS!

"There are only a few words that I care to say, and this court will not mistake them for a legal argument, for I am not acquainted with the phraseology of the bar nor the language common to the court room.

"There are two points which I want to touch upon-the indictment itself and the misstatement of the prosecuting attorney. The indictment reads: The People of the State of California v. J. W. Whyte and others.' It's a hideous lie. The people in this court room know that it is a lie; the court itself knows that it is a lie. If the people of the State are to blame for this persecution, then the people are to blame for the murder of Michael Hoey and the assassination of Joseph Mikolasek. They are to blame and responsible for every bruise, every insult and injury inflicted upon the members of the working class by the vigilantes of this city. The people deny it, and have so emphatically denied it that Gov. Johnson sent Harris Weinstock down here to make an investigation and clear the reputation of the people of the State of California from the odor that you would attach to it. You cowards throw the blame upon the people, but I know who is to blame, and I name them; it is Spreckles and his partners in business, and this court is the lackey and lickspittle of that class, defending the property of that class against the advancing horde of starving American workers.

38819°-S. Doc. 415, 64-1-vol 11- -51

"The prosecuting attorney in his plea to the jury accused me of saying on a public platform at a public meeting, 'To hell with the courts; we know what justice is.' He told a great truth when he lied, for if he had searched the innermost recesses of my mind he could have found that thought, never expressed by me before, but which I express now. To hell with your courts; I know what justice is,' for I have sat in your court room day after day and have seen members of my class pass before this, the so-called bar of justice. I have seen you, Judge Sloan, and others of your kind, send them to prison because they dared to infringe upon the sacred rights of property. You have become blind and deaf to the rights of man to pursue life and happiness, and you have crushed those rights so that the sacred rights of property should be preserved. Then you tell me to respect the law. I don't. I did violate the law, and I will violate every one of your laws and still come before you and say, 'To hell with the courts,' because I believe that my right to live is far more sacred than the sacred right of property that you and your kind so ably defend.

"I don't tell you this with the expectation of getting justice, but to show my contempt for the whole machinery of law and justice as represented by this and every other court. The prosecutor lied, but I will accept it as a truth and say again, so that you, Judge Sloan, may not be mistaken as to my attitude, To hell with your courts; I know what justice is.'"

The second opinion I wish to present is a speech made by Frank Tanenbaum before a court in the city of New York, where he was about to be sentenced for a constructive disorderly conduct arising out of his connection with the disemployment agitation in New York City, which took place a little over a year ago.

This speech was published from the court record in several radical periodicals. The following is the report which appeared in The Masses for May, 1914:

"FRANK TANENBAUM'S SPEECH.

"The CLERK. Frank Tanenbaum, what have you now to say why judgment should not be pronounced against you according to law?

"The DEFENDANT. I would like to make a statement, I think.

"The COURT. You are at liberty to make any statement you desire.

"The DEFENDANT. I suppose if I make a statement that the press to-morrow will say I wanted to make myself out a hero or a martyr. I don't know who it was who said-some well-known preacher-that society would forgive a man for murder, theft, rape, or almost any crime except that of preaching a new gospel. That is my crime. There are in reality three distinct things I am accused of.

"One is unlawful assembly. I don't know of any circumstance in the world's history where the struggles of the slave class have appeared either legal or respectable or religious in the eyes of the master class. I am a member of the slave class. I am a member of the working class, and I know that our struggles to overcome our present condition are illegal in the eyes of the master class and its representatives. Of course, it was unlawful. I don't doubt that.

"Another very serious objection against me was that I answered 'Yes' to the statement about bloodshed. Why make all this nonsense about bloodshed? Capital sheds more blood in one year than we would in five. We are being killed every day. We are being killed in the mines, in the buildings, killed everywhere killed in the battlefield fighting the wars of the capital class. No wars in recent times have been fought in the interests of the workers, and yet everywhere it was the workers who died. We don't fear bloodshed. We have nothing to lose except our miserable lives.

"That district attorney hasn't got heart enough to be a dog catcher. He said I took graft, $25. That isn't true. I did not take $25. It wasn't turned over to me. I didn't want it. It was given to Mr. Martin, the sexton of the old Presbyterian Church, Eleventh Street and Fifth Avenue. He came along with us. It was a very miserable, windy night, the snow blowing and sleet, and we took the men-83 in number-homeless, shelterless, naked, and starving men-took them to a restaurant on the Bowery and fed them.

"How about religion and praying to God? Why, there is no more religious thing I have ever witnessed than that lot of homeless, half-fed, half-dressed, illy cled men sitting over a long table enjoying a clean, warm meal, laughing and talking. That is the most religious thing I ever saw. And this man, Mr. Martin, paid for that out of his own pocket, out of the $25 which he, and not I, held. Then we took these men to a Bowery hotel on Third Avenue and put