Mr. GOMPERS. I was under the impression that it also lay in the power of Congress to rectify any evils existing in the law, or to provide against the abuse of the existing law.

Mr. MooN. By changing the law?

Mr. GOMPERS. By changing the law.

The CHAIRMAN. Now, Mr. Moon, we have that right. Congress has that right.

Mr. GOMPERS. However, what I desire to call attention to is this, I have tried to lay the basis for this statement, that if the things which I have stated are not facts, but if they are simply hypothetical, then the present bill would not rectify that awful wrong.

Mr. DAVIS. You say the present bill. What bill do you mean, Mr.

GOMPERS?

Mr. GOMPERS. All of the bills dealing with contempt now before the committee.

Mr. NORRIS. Do you mean to say that the Clayton bill would not rectify the thing that you hold is wrong?

Mr. NYE. I understand that the whole force of your argument is that a contempt is supplemental and dependent upon the right of the court?

Mr. GOMPERS. Yes; if the court has jurisdiction then an effort to rectify contempts arising under it is undoubtedly the proper course to pursue. What we are contending is that the court now exercises jurisdiction in cases of this character.

Mr. HIGGINS. What bill in your judgment does meet with the situation that you have just related?

Mr. GOMPERS. A bill which has in one form or another, but containing the essential features, been before a number of Congresses. The CHAIRMAN. It is entitled now H. R. 11032.

Mr. GOMPERS. Yes; introduced by Mr. Wilson of Pennsylvania, on June 2, 1911, and a copy of which, if I may be permitted, I should like to have made a part of the record here.

The CHAIRMAN. The reporter will incorporate the Wilson bill referred to in the proceedings.

H. R. 11032, Sixty-second Congress, first session.]

IN THE HOUSE OF REPRESENTATIVES.

JUNE 2, 1911.

Mr. Wilson of Pennsylvania introduced the following bill; which was referred to the Committee on the Judiciary and ordered to be printed.

A BILL, To regulate the issuance of restraining orders and procedure thereon, and to limit the meaning of "conspiracy" in certain cases.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employee, or between employers and employees, or between employees, or between persons employed and persons seeking employment, or involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property and property right must be particularly described in the application, which must be in writing and sworn to by the applicant, or by his, her, or its agent or attorney. And for the purposes of this act no right to continue the relation of employer and employee, or to assume or create such relation with any particular person or persons, or at all, or patronage or good will in business, or buying or selling commodities of any particular

kind or at any particular place, or at all, shall be construed, held, considered, or treated as property or as constituting a property right.

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, 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 civil or criminal offense, or be punished or prosecuted, or damages recovered upon 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 definitions contained in the first section of this act.

SEC. 3. That all acts and parts of acts in conflict with the provisions of this act are hereby repealed.

Mr. HOWLAND. Is it your purpose, Mr. Gompers, to speak upon that bill which you ask be inserted in the record?

Mr. GOMPERS. I had made some memoranda upon that subject but I should like to say that the Wilson bill contains the essential features for which we are contending, and it is cast upon the lines as near as they can be made conformable to the American conditions, and cast upon the lines of the British trades dispute act of 1906.

Mr. NORRIS. Before you leave the Clayton bill, Mr. Gompers, may I ask you a question?

Mr. GOMPERS. May I incorporate the British trades dispute act of 1906 in the record?

The CHAIRMAN. That will be incorporated in the record.

BRITISH TRADES DISPUTE ACT, 1906.

An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.

It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peaceful persuading any person to work or abstain from working.

An act done by a person in contemplation of furtherance or a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.

Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the trades-union act, 1871, section 9, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherence of a trade dispute.

Mr. NORRIS. Are you disposed to the British trades dispute act?

Mr. GOMPERS. I should prefer that the committee deal with the British trades dispute act in connection with the Wilson bill, as relating to injunctions, and to more clearly define conspiracies as now interpreted.

I should like to discuss the fundamental principles involved in the entire contention.

Mr. NORRIS. But the passage of the Wilson bill would not necessarily mean that the Clayton bill ought to be enacted or ought not to be enacted.

Mr. GOMPERS. It does, sir; inasmuch as it limits the power of the courts in the issuance of just this species of injunctions in which no property or property rights are involved.

Mr. NORRIS. Yes; I understand that, but if that were enacted still the question of property rights might be very important and subject to construction.

Mr. GOMPERS. So, might I address myself to it for a few remarks? The CHAIRMAN. Mr. Gompers, I will ask you a question directly. The whole object of this proposition relating to contempts is to give some right of trial by jury. Do I understand you to commit yourself to the proposition that you do not want the right of trial by jury?

Mr. GOMPERS. We want the writ of injunction to be confined to its original purpose, and then there will not be any question of direct or indirect contempt when the court is brought back to its original jurisdiction and prohibited by law from assuming jurisdiction which it does not rightfully possess.

The CHAIRMAN. Mr. Gompers I want you to understand exactly what I have said, and to make myself fully understood by you I want to repeat that question. Now it does not make any difference whether we divide contempts into direct or indirect or whether we divide them into civil and criminal contempts, or divide them in any other way, by those committed in the face of the courts or within the hearing or sight of the courts and those committed out of the view of the courts. The question I desire to ask you is in no case of contempt is it true that in no case of contempt you desire a jury trial? You would prefer to have the judge try every case of contempt without the intervention of jury trial in every case?

Mr. GOMPERS. I did not intend to say so. I do not want to be misunderstood. What I wanted to convey, what I had in mind is this: Proceedings instituted as for indirect contempt are founded upon the refusal to obey a summons or a subpoena of the court. Now in the proceedings for indirect contempt in injunctions of which we particularly complain and in which we are involved we hold that the issuance of injunctions does not lie. In these injunctions the question of property and property rights is not involved. They are personal rights, personal relations, and the beneficent writ of injunction should not be perverted from the protection of property rights to extend and be applied to personal rights and the regulation of personal relations. I firmly believe that in direct contempt it would be an excellent thing if the case were tried before a jury, but not in cases of dispute and matters arising out of disputes between employers and employees, or matters of personal relations and personal rights with which equity proceedings have no concern.

Mr. Moon. That is, your position is, if you just take labor out and say that it is not within the pale of the injunctive process, therefore there can be no proceedings against labor, then you would go no further against the bill.

Mr. GOMPERS. I would not care to allow that question to go with the categorical answer of "yea" or "nay." You see the question implies that "labor" wants to be taken out of the bill, that we want some special privilege for labor, when as a matter of fact we ask

nothing but equality before the law. We hold that injunctions as they are issued in disputes between employers and employees are never issued as between any other two citizens or groups of citizens— that there is therefore a discrimination against the workmen and that it is a denial of equality before the law. Indeed, the question of Mr. Moon indicates a misconception-held by so many-as to our position upon this subject.

Mr. MOON. The cases arising out of disputes?

Mr. GOMPERS. The cases arising out of disputes between employers and employes are personal matters with which the courts have nothing to do.

Mr. Moon. I know, but when you take those out of the bill then you do not have any objections?

Mr. GOMPERS. Now, if I may be permitted to say further with regard to the bill which I have, Mr. Clayton's bill, I have already referred to the question of the written accusation setting forth clearly the facts alleged, etc. Now, the hypothetical facts which I mentioned before-regard them not as facts, but as simply hypothetical-the injunction prohibited the writing or printing or orally speaking of this company as having had a dispute with labor, with workingmen, and I did continue to discuss the case editorially and upon the platform, and I did say editorially, with all due respect to the court, that it was impossible to comply with "all the terms of the injunction." These were the terms to which I referred; the right to discuss in an editorial, the right to discuss it orally, either in private conversation or in public speeches upon the platform. I did not see how it were possible to comply with all the terms of the injunction, and because I said this editorially, that, too, was cited as evidence of my contempt of court.

Mr. MOON. You want to know what effect the passage of this act would have upon that?

Mr. GOMPERS. If this bill were enacted into law, and a court would issue an injunction containing the precise terms as used by Judge Gould and the accusation were made against the same parties in contempt proceedings and they did the things which the injunction forbade, they could not deny it, for it would be the truth, and they would be offered no relief by the bill, even if it were a law.

Mr. FLOYD. Then, Mr. Gompers, I understand as far as the provision is concerned, some provision for trial by jury would not help any in that kind of a case?

Mr. GOMPERS. It would not affect us, because if this bill were enacted into law without the legislation to which I have called attention the bill would not be any relief.

The CHAIRMAN. You mean the legislation with regard to the injunction?

Mr. GOMPERS. Yes, sir; because that has alleged indirect contempt. Now, may I address myself for a few moments to a few of the provisions of this bill which I think

The CHAIRMAN. The Wilson bill?

Mr. GOMPERS. No; I am referring to the Clayton bill.

them from the standpoint of an American citizen in addition to that as the representative of labor. Here on page 3 of the bill there is a provision that the court shall fix the time for such answer and shall

also fix the time and place for the trial of the case. That places it arbitrarily in the power of the court to fix the time for such answer and makes no provision for a reasonable time. The next sentence in the same section of the bill, page 3, beginning with line 4, the following

occurs:

The court may, on a proper showing, extend the time so as to afford the accused reasonable opportunity to purge himself of such contempt.

There the provision is made that the accused may have a reasonable time to purge himself from contempt; but there is no provision compelling the court to give a reasonable time for the defense or setting the time for trying the case, and in that regard I believe that the language should be supplied so that it will read:

In contempt proceedings the court shall grant time for a reasonable defense and to fix the trial of the case.

Then in the last sentence this occurs:

If the accused shall be found guilty, judgment shall be entered accordingly, prescribing the punishment.

There is no limitation provided for the punishment the court may impose and I submit that the judgment of Congress ought to have some weight in determining even the worst form of indirect contempt. The Supreme Court of the United States in, I believe, the only contempt case that ever came before it, the contempt of the order of that court in the case known as the Shepp case, where the sheriff of a city in Tennessee and some of his subordinates had been enjoined, or commanded to do or not to do a certain act, imposed sentences of 30, 60, and 90 days' imprisonment, notwithstanding that the disobedience resulted in the illegal taking of a human life.

The CHAIRMAN. Mr. Gompers, there is, however, this limitation: The court can not impose both a fine and imprisonment if a person is convicted. It must confine itself to one or the other, and then of course the courts have held that unusual punishment could not be inflicted. Now I am not undertaking in this suggestion to answer your criticism of the bill at all, I am quite glad to have your criticism of the bill, as I have been glad to have the criticism of those who opposed the bill.

Mr. GOMPERS. The time has gone by when any one can be subject to imprisonment at the pleasure of the king. In the injunction issued by Justice Gould and which I have read to the committee, the judge sat as a court of equity-acting as the chancellor, as the representative of kingly authority. The judge who presided in the contempt proceedings which grew out of this injunction held my associates and me as guilty of contempt of court for alleged violation of the injunction, and imposed sentences of six, nine, and twelve months, upon the alleged contemnors. The sentences were cruel and unusual punishment and in that particular were in contravention of the Constitution of the United States. The issuance of the injunction itself was in excess of the power of the court. The injunction forbade free speech and free press. It was an assumption of power not vested in the court and its exercise forbidden by the first amendment to the Constitution of the United States. In the decision accompanying the sentence of the court in the contempt proceedings growing out