tain conduct by providing punishment therefor it shall be permitted, were adopted, i.e., that until the voice of the people, through the Legislature, was heard saying what conduct might be forbidden and restrained, the courts could not restrain it, the courts would soon be cleared of all criticism to which they are now subjected. It would become manifest to those who now criticise and to those who feel that the courts are inimical to their interests and partial against them, that the courts were but carrying out the will of the majority as expressed in the acts of the Great and General Court, which is the voice of the people. Much good might be accomplished by the adoption of this as the principle governing the issuing of injunctions. It all amounts to saying that no injunction shall issue restraining any acts except those which the people have elected by criminal statute to declare unlawful. This seems reasonable and confidence that the people, through its Legislature, would soon put this stamp of disapproval upon all misconduct, brings conviction that such a course would restore universal confidence in our courts without permitting wrong to be done. This is a result much to be desired. It is well, then, to compare that method of controlling men's actions and protecting men's rights, and the use of injunctions in the furtherance of that control and that protection, with the present method. Such comparison may do much to clear up the much-misunderstood subject of the granting of injunctions by the court, and much to convince all persons that injunctions by the courts have only been used in our Commonwealth to insist upon the "voice of the people" as expressed in our laws being obeyed, and never to prevent the will of the people being carried out. As has been said in this report, "The whole body of our laws is one thing," and that whole body of our laws is the "voice of the people," and obedience to nothing else than this "voice of the people" has been insisted upon by our courts by the use of injunctions. When the people adopted their Constitution, securing to each and all the most precious rights of men, they solemnly agreed that those rights should not be violated; that they should not be violated either by the act of one as against the many nor by the acts of many as against the one; that the strong and the weak should alike respect them. More than this, they pro

vided that those rights should not be lessened or changed even by a majority of or by the whole people, through legislation or otherwise, save by the careful method pointed out in that Constitution. That method secures deliberation, and assures against any change which does not meet with the approval both of the people's representatives and the direct approval of the people themselves. What rights are secured to the whole people, or to each, by the Constitution, which right-minded men would take away? None. Time has demonstrated the wisdom of the provisions of our Constitution. The Constitution needs no defence. No man or class of men would deliberately vote, while that Constitution remains our solemn compact, that it might be violated by any one, however mighty or however lowly, by individuals or by combinations, however powerful. Nor that there should be no tribunal representing the people with full powers in behalf of the people, to insist upon obedience thereto. Combinations of the lowly may be strong, but if there is any class of people who can afford less than another to make less protected their constitutionally secured rights, it is the lowly. Property may be left to take care of itself, but the more sacred rights of the individual cannot be too securely guarded.

Therefore, the argument sometimes used, viz., "that the use of injunction to prevent acts not declared by statute to be criminal or unlawful, or to compel conduct not insisted upon by any statute of the Commonwealth, shows that our courts act without warrant from the people or without their direction," falls to the ground.

The whole body of our laws, consisting of the constitutional provisions, the equity power of the courts given them by the people, the statutes of the Commonwealth, and that great body of our laws known as the common law, is the law of the land. It is all and in each part alike the voice of the people, and from a study of nothing less than it all can it be ascertained what is the voice of the people. The courts have not acted in this without warrant or without direction nor otherwise than in obedience to the voice of the people who created them, as the wish of the people has by them been found to be expressed in the people's law.

The only difference between this proposed method of de

termining when injunctions restraining conduct which the people say should be prevented and the present is the selection of the place where we shall consider as the proper place to find recorded the people's will. The proposed method ignores the Constitution, the rules of equity and the common law, and selects the statutes alone as that place; and this is its error. The present method ignores no part, but selects the whole law of the land as the record of the people's will, and this is the justice of it. It is for the people of a State to determine what acts they may lawfully do and what shall be considered unlawful; and the courts should not restrain acts which the people have declared lawful, — they have not been empowered to do so, nor have they restrained them. The proposed legislation is based upon the mistaken notion that in the statutes alone is recorded the voice of the people, declaring what is lawful and what may be done. The practice under the proposed method of determining what the people's will is would be made identical with the present practice by the passage of an act which would provide that "Whoever injures the rights of another shall be punished by a fine of one dollar." The only difference between the methods will be found in the answer of the people to the question, How far ought some of our citizens be at liberty to injure the rights of others? Confidence in the people's sense of justice compels the belief that were such a law needed to protect the rights of all it would be speedily enacted. We have refrained from discussing the constitutional questions involved in the passage of any of the proposed legislation, as it tends to confuse, and may well be postponed until the Legislature is considering the passage of some certain bill.

Many may not be restrained from doing what One may law

fully do.

The proposition that it is lawful for any number of persons to do a thing which if done by one is lawful has been frequently urged as the statement of a legal principle in resisting injunctions against persons alleged to be seeking to injure some persons or firm by combination and unity of ac

tion. It is much urged as a basic principle upon which to form legislation in reference to the same subjects, and it has been discussed in the public prints. The proposition that it shall be lawful for a number of persons to do any act which if done by one would be lawful is very alluring, and indeed sounds as if based upon and containing a truism. It at least puts an idea very adroitly, so much so that eminent judges have found it difficult to formulate the legal basis upon which is upheld the contention that it is not always true. In the case of Curren v. Galen, 152 N. Y. 33, is found the following:

It is earnestly contended by defendants' counsel, however, that, as each one of the defendants has the right to refuse to patronize the customers of plaintiff unless such customers will discontinue handling plaintiff's stoves, therefore they may combine in their refusal; in other words, that there cannot be an unlawful combination where each member thereof might do, individually, the thing contemplated, without responsibility to the law therefor. This contention has much of plausibility. It is undoubtedly difficult to formulate the legal basis of the proposition that what is lawful for one to do becomes unlawful when done in combination. It seems to evade accurate analysis.

Justice Holmes, in Vegelahn v. Guntner, in a similar manner reasons about the proposition, and adds:

It would be rash to say that some as yet un formulated truth may not be hidden under this proposition.

And again in the same opinion this learned son of Massachusetts says:

But, however unsatisfactory may be the statement of the as yet unformulated truth hidden under the proposition, the proposition itself is too firmly engrafted upon both the civil and criminal law to be ignored.

Of course the proposition spoken of by Mr. Justice Holmes is that "what is lawful for one to do becomes unlawful when done in combination."

In many cases is found similar reasoning upon this proposition. Reasoning as to what would be the effect of the

passage of a law providing that "it shall be lawful for any number of persons to do that which if done by one person is lawful" and a study of this proposition itself leads to the suggestion that there has been left out of all the reasoning in the books and decisions on this subject an essential element, the supplying of which will do much to clear up this vexed question.

A thousand times any given thing is not the same as the thing itself. The thing produced by multiplying the given thing by a thousand is the thing which the combination of persons are restrained from doing, and not the original given thing which the one may do lawfully. The given thing is that which the one may do lawfully, and not the thing produced by the multiplication. Neither the many nor the one are restrained from doing the given thing which the one may do lawfully. The many may do that given thing which the one may lawfully do. The single person is not restrained from doing that which the many are restrained from doing, not because it would be lawful for him to do it, but because there is no fear that he will, it being quite impossible. Injunctions are never properly granted unless there is a likelihood that the acts restrained will be committed if not enjoined. They are not properly granted to prevent trivial injuries. It is this which leads to the granting of injunctions restraining the many in their unlawful combinations and common purpose to injure, while the single individual is not restrained, though he might wish to do that serious harm which the many threaten. In the case of the many the greater injury, the thing produced by multiplying the given thing by a thousand, is imminent, for they are powerful enough to do it. In the case of the individual the greater injury is not imminent; he has not the power to inflict it. The court would not issue an injunction restraining A, who, without any purpose to injure, occasionally when sprinkling his own lawn let some of the water pass over his line onto the land of B. It may be an actual benefit to B's land, and by enhancing the good appearance of B's lawn be a benefit to the community. Then why, it may be asked, should any number of persons be restrained from doing that which A