I say that because I shall ask later to put these telegrams in the record for the information of members of the committee.

Mr. GOMPERS. I am pleased to be in such good company in protesting against this legislation.

I may say this, that up to this moment, other than a conference between a number of men and women, in Washington in regard to this legislation, there has been no act of mine, or for me, or, to my knowledge, on the part of the American Federation of Labor, or of organized labor, to stimulate or suggest protests coming to this committee or to Members of Congress. I have felt, at least, so far, that the good sense, the Americanism, of the Members of Congress would come to their aid and prevent the enactment of this character of legislation.

Now, I am not going to say what I may be induced or persuaded, or may come to the conclusion that I should do in calling this legislation to the attention of the workers of our country; more than likely, I may do that; I may feel that it is necessary to do it. But I have thus far abstained from doing it.

Mr. CANTRILL. Mr. Chairman, there is one point, if Mr. Gompers will pardon me, that I would like some information on from some of the lawyers on this committee, or in this assemblage, because I am not a lawyer:

As I understand, under the present law, two or more are necessary to conspire to break down the Government, or to overthrow the Government before any penalties could be imposed on these men; in other words, "two or more," I think, is the way the law reads.

What I would like to know is this: Is there any law on the statute bocks now by which, for instance, an individual who openly advocates the overthrow of the Government by physical force, or by force of arms, can be penalized or punished?

To give an exact illustration: Suppose I went down on Pennsylvania Avenue and addressed an assemblage; suppose I made a speech, without having mentioned any other man at all-but simply made a radical speech in which I advised every man in that assemblage to arm himself, to go out and kill the officers of the law, and that wherever the opportunity presented itself he should use force to overthrow the Government.

The point I want to know is, is there any law on the statute books now which could punish me for making any such radical appeal or statement as that, although I had not gone into a conspiracy and had not mentioned it to anybody else, because those radical appeals might cause some one else to enter into a conspiracy whereby they would come under the penalty of the law, but where I would be absolutely free of all blame and not subject to any penalty under the law?

I have made inquiries among several lawyers about that; and I have been informed that there is no penalty now on the statute books which could punish me for the open advocacy of force and arms to overthrow the Government of the United States?

Mr. GOMPERS. Specifically, I should prefer that that question should be met and answered by some of those who are to follow me. Mr. CANTRILL. I was just asking for information, because I am frank to say that I do not know.

The CHAIRMAN. Were you about to conclude, Mr. Gompers?

Mr. GOMPERS. Yes, sir. I was going to say that, in my judgment, there is no reason why they could not be made amenable to the law against public nuisances.

Mr. CANTRILL. Which would carry with it a very slight penalty, I suppose. But even if that could be done

Mr. JOHNSON. Mr. Chairman, I would like to ask one more question of the witness.

Mr. RALSTON. Pardon me, but if the chairman would like to have that question answered, and Mr. Gompers will permit the interruption, I would be very glad to have Capt. Hale, who is a lawyer, answer that question.

Mr. GOMPERS. That is quite agreeable to me.

The CHAIRMAN. The committee is entirely at your command while you have the floor, Mr. Gompers. If you desire to yield to anyone else, you may do so.

Mr. GOMPERS. I yield to Capt. Hale.

Mr. HALE. I am very glad to have the opportunity to answer that question at this time, because it brings the question up very appropriately.

Section 4 of the Criminal Code is as follows:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States, or the laws thereof, or gives aid or comfort thereto, shall be imprisoned for not more than 10 years, or fined not more than $10,000, or both.

Now let me strip the verbiage from that and give you just the words that would fit the case you supposed. "Whoever incites any insurrection against the law" is guilty. That covers precisely the case that you put. Now there is only one decision on that section

Mr. VOLSTEAD (interposing). Pardon me, but would you not have to have an insurrection first?

Mr. HALE. No, sir.

Mr. VOLSTEAD. The section says, "Whoever incites an insurrec

tion."

Mr. HALE. "Whoever incites an insurrection."

Mr. VOLSTEAD. But you must have incited an insurrection; there must have been an insurrection before you can reach the person. Mr. JOHNSON. In other words, the section does not cover attempts. Mr. VOLSTEAD. No; it does not cover attempts.

Mr. HALE. It goes further than to cover attempts; it provides that whoever incites any insurrection against the laws of the United States shall be guilty.

Mr. VOLSTEAD. Yes; it provides that.

Mr. HALE. Now, if I go down Pennsylvania Avenue and I say to the people I meet, "Arm yourselves," or even if I only "Defy the law, resist the law," I will be guilty.

Mr. VOLSTEAD. No. That is why the Attorney General is asking for such a law, because the construction he places upon that-and I think it is a very natural construction-is that there has got to be an insurrection. Under that section, whoever aids in or incites an actual insurrection is liable; but until there is an actual insurrection you have not incited an insurrection.

Mr. HALE. Well, there is only one decision on that, and that holds the other way.

The CHAIRMAN. Well, if this is going to bring up an argument, perhaps we had better proceed with the hearing.

Mr. VOLSTEAD. Well, excuse me; I will not say anything further on the point.

Mr. HALE. I can quote the decision In re Grand Jury, 62 Federal Reporter, 842, by Judge Ross, in the Southern District of California, in 1894; that is the only decision there is on the section.

Mr. VOLSTEAD. What volume?

Mr. HALE. Sixty-second Federal Reporter, 842. There was a speech in that case made by somebody. At the time there was a strike on the Southern Pacific Railroad line. Here is the way the court instructed the grand jury:

Gentlemen of the grand jury, I hereby call your attention this morning to the report of certain acts and declarations of a certain Dr. Rawl, at a public meeting held in this city last night, and in connection therewith I instruct you that it is declared by the statutes of the United States that every person who incites an insurrection against the laws of the United States is guilty.

Now, that is all the law we have on the proposition, and that means that the only judge who has ever handled it believed that it was sufficient.

Mr. VOLSTEAD. Probably he believed that an insurrection had actually taken place, and probably he in the same matter submitted the question of whether the insurrection had taken place and left that to the jury, as well as the question whether the party named had incited it.

Mr. HALE. The report does not so state.

Mr. VOLSTEAD. I do not know as to the facts in the case, of course. Mr. JOHNSON. Mr. Chairman, I suggest that the case quoted by Capt. Hale be inserted in the record at this point.

The CHAIRMAN. The case cited may be inserted in the record. (The decision referred to is as follows:)

IN RE GRAND JURY.

(District Court, Northern District of California, July 13, 1894.)

[From 62 Federal Reporter, 840.]

Charge to the grand jury by Morrow, district judge:

Gentlemen of the grand jury, you have been summoned and sworn as grand jurors of the district court of the United States for the Northern District of California. It now becomes my duty to instruct you concerning the duties you will be called upon to perform under the laws of the United States. The extraordinary occurrences in this State during the past two weeks require your immediate attention, and call for a thorough and sweeping investigation. It is a matter of public notoriety that during this time a great railroad strike has prevailed; that the most important channels of trade and commerce carried by railway service have been closed, the business operations of the State paralyzed, and the passage of the mails seriously retarded and obstructed at several points in the State. The Constitution of the United States provides that Congress shall have power to regulate commerce among the States and establish post offices and post roads. Pursuant to the first of these provisions, Congress has provided by the act of July 2, 1890, that every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and on conviction thereof shall be

punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

Trade has been defined as the exchange of commodities for other commodities or for money; the business of buying and selling; dealing by way of sale or exchange. The word commerce, as used in the statute and under the terms of the Constitution, has, however, a broader meaning than the word trade. Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. (County of Mobile v. Kimball, 102 U. S., 702; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 203, 5 Sup. Ct., 826.) The primary object of the statute was undoubtedly to prevent the destruction of legitimate and healthy competition in interstate commerce by individuals, corporations, and trusts, grasping, engrossing, and monopolizing the markets for commodities. (U. S. v. Patterson, 55 Fed., 605.) But its provisions are broad enough to reach a combination or conspiracy that would interrupt the transportation of such commodities from one State to another, and in this view the scope and purpose of the statute have been the subject of consideration in the courts, notably in the case of U. S. v. Workingmen's Amalgamated Council (54 (Fed., 995). That action was brought by the United States in the eastern district of Louisiana against the Workingmen's Amalgamated Council of New Orleans, La., and others, to restrain the defendants from interfering with interstate and foreign commerce. The facts were that a disagreement had arisen between the warehousemen and their employees and the principal draymen and their subordinates concerning the recognition that should be accorded by the employers to the demands of certain labor organizations in New Orleans, and it was threatened that unless there was an acquiescence in these demands all the labor organizations would leave work, and would allow no work in any department of business, and violence was threatened in support of the demands.

In some branches of business the effort was made to replace the union men by other workmen. This was resisted by the intimidation springing from vast throngs of the union men assembling in the street, and in some instances by violence, so that the result was that by the intended effects of the doings of the defendants not a bale of goods constituting the commerce of the country Icould be moved. It was held by the court that the facts of that case brought it within the provisions of the statute. In other words, it was determined that a combination of men who by violence and intimidation restrained trade and commerce among the several States or with foreign nations were acting in violation of this law, notwithstanding they may have had in view some other purpose in relation to their employment. You will observe that in this case the elements of intimidation and violence were present. It was not a case where the men merely quit work, putting their employers to no other inconvenience than of securing other men to fill their places, but it was a case where force and intimidation were used to prevent anyone in that locality from engaging in the lawful and necessary business of moving the commerce of the country. The order granting an injunction in that case was affirmed by the circuit court of appeals in the fifth circuit. (6 C. C. A., 258, 57 Fed., 85.) The law as thus declared by a court of recognized ability and authority was recently applied by Judge McKenna of the circuit court of this district in like manner to one feature of the state of affairs to which I am now directing your attention. This law determines that any combination or conspiracy on the part of any class of men who by violence and intimidation prevent the passage of railroad trains engaged in transporting the interstate commerce of the country is a violation of the act of July 2, 1890.

Another agency of the Government is involved in the transportation of the mails, and to protect and secure the efficiency of that branch of the service it has been enacted that all railroads or parts of railroads which are now or hereafter may be in operation are established as post roads (Rev. Stat., 3964); that the Postmaster General shall in all cases decide upon what trains and in what manner the mails shall be conveyed (sec. 3, act Mar. 3, 1879; 20 Stat.. 358); and every railway company conveying the mails shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same (Rev. Stat., 4000). It is further provided in section 3995 of the Revised Statutes that any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier carrying the

same, shall for every such offense be punished by a fine of not more than $100. This statute has also been before the courts in cases where bodies of men operating as labor organizations have prevented the passage of trains carrying the mails. In the case of U. S. v. Clark, in the district court of the United States for the eastern district of Pennsylvania (23 Int. Rev. Rec., 306, Fed. Cas. No. 14, 805), the defendant was one of a number of persons who assembled at the depot of the Lehigh Valley Railroad at South Easton, Pa. On the arrival of the mail train at the depot, the defendant, who had no connection with the train, said to persons having charge of it that the mail car could go on, but not the rest of the train. The defendant afterwards got on the train and, with others, placed it on a siding, where it remained for several days. Judge Cadwallader, in charging the jury upon these facts, said:

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"The defendant is charged with retarding the transportation of the mail. The mail, in point of fact, was retarded, as the postmaster testifies, two or three days. The occurrence which retarded it, according to the tendency of the proofs, was that several persons were assembled at the depot at Easton for no lawful purpose, and that one or more of them declared that the mail might go on, but the passenger train should not. They uncoupled the mail, and afterwards coupled it for the purpose of carrying it, as they did, to a siding. If that was the fact, and their purpose was to retard the train which transported the mail, it matters not, in point of law, whether they were or were not willing that the mail car or baggage car or the particular vehicle carrying the mail should go on."

The learned judge then quotes with approval the opinion of Judge Drummond, of Chicago, upon the subject, as follows:

"In relation to the transportation of the mails by means of railroads it is true that it appears by the evidence in this case that these defendants were willing that the mail car should go, but it must be borne in mind that the mail car can only go in such a way as to enable the railroad to transport the mail where there are other cars accompanying it. It is not practicable, as a general thing, for a railroad to transport a mail car by itself, because that would be attended by serious loss; so that while nominally they permit the mail car to go, they really, by preventing the transit of other passenger cars, interfere with the transportation of the mails. You will observe that the law is applicable to the case of an obstruction interposed for a purpose other than that of retarding the mails. This was decided to be the law by the Supreme Court of the United States as long ago as 1868 in the case of United States v. Kirby, where it was said:

"When the acts which create the obstruction are in themselves unlawful the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. (7 Wall., 486.)"

In the case of United States v. Thomas (55 Fed., 381) the transportation of the mails had been obstructed by some persons acting under the influence of a strike. Judge Jackson, in addressing the jury, submitted observations intended for the strikers. He said:

You have no right to go into a strike and undertake to stop the transportation of the mails of the United States, undertake to stop the running of the cars of the country, or undertake to stop the business which is carried on the great highways of the country and which is the mainspring to the success of a country like ours. If all this is done, then you step upon a right which you have no right to interfere with. I make these general remarks on this occasion with a hope that I may reach the ear of the intelligent masses that they may see at once the error they have fallen into. Rely not upon combination and strikes to protect your interests. They are disastrous, stopping your mills, and stopping the enterprises and business of the community which furnish the wage earner the means to support his home. Do not resort to such measures to stop our manufactures, our mills, or the transportation of the mails of the United States, which is so great and important an element of our country for the comfort and welfare of society. If you take this thing up and look at it and ponder over it and see the result that must necessarily accompany it, you would refuse to enter into these combination and strikes.

That the passage of the mails over certain lines of railroad in this State has been retarded and obstructed there is no question. The regular receipt and dispatch of mails over the roads of the Southern Pacific Co. have in fact been suspended at the San Francisco post office for a period of about two weeks. Who is responsible for this state of affairs? The strikers, the railroad company, or both? The railway is a great public highway, and the duty of the railroad