WHAT IS

IS "GOVERNMENT BY INJUNCTION?" DOES IT EXIST IN THE UNITED STATES?

ANNUAL ADDRESS BY

J. H. BENTON, JR.

Mr. President and Brethren of the Bar:

We are living in a time of deep social unrest. A continually increasing number of people are dissatisfied with the existing order of things. The civilized world has been practically at peace for more than a generation while marvelous improvements in labor-saving machinery and in means of communication and transportation have caused a rapid and enormous increase in wealth which has necessarily been unequally distributed.

Combinations of capital for the successful conduct of great enterprises have been carried to a point which many thoughtful persons fear is likely to threaten the stability of the state. Social and economic laws which were supposed to be sound and immutable are now questioned and declared to be unadapted to existing conditions.

In the pulpit and on the platform there is a constant discussion, and the press teems with countless publications, stating new economic and political theories. From the farm and the market, the factory and the shop, there swells a note of discontent, which bodes no good to the Republic. Checked for the moment by a return of prosperity, which may be only temporary, the cause of complaints is claimed to be not removed. We are in a period not unlike the half

century which preceded the French Revolution, and which has always preceded radical revolution, marked not only for the number of reforms proposed, but still more for the universal talk about them.

This condition has come about gradually. From the close of the Civil War down to the present time there has been denunciation of our political institutions by an element in our population who seem to think that liberty consists in the absence of law. The political conduct of the people has become vacillating and unsettled. By an enormous majority they give power to one political party, and then, without apparent cause, turn about, and with an equal majority give it to the other. A large portion of the people seem to have no settled political convictions, but to be in a state of constant discontent.

From time to time this discontent takes definite forms of complaint and demand. One demand is that all combinations in business shall be suppressed; another that taxes shall be so levied that no great accumulation of wealth shall be possible; another, that private property in land shall be abolished; another, for national, state, or municipal ownership of all means of communication of intelligence and all means of transportation, and also of all means for the production and supply of water, gas, electric light, and other public conveniences.

Still another, and one which has, perhaps, been recently most definitely and widely made, is the complaint that the judiciary have usurped legislative and executive power, and by the use of their equity powers to restrain irreparable injury and punish violation of their orders by proceedings for contempt, have in reality assumed to make and enforce criminal law without trial by jury, and thus to create what is popularly termed "government by injunction."

It is claimed that persons are thus convicted of crimes without the judgment of their peers, and are punished, not under fixed laws with penalties established by the legisla

ture, but at the arbitrary discretion of single judges. In 1896, this complaint was a principal plank in the platform of one of the two great political parties in the nation, and was supported by the votes of more than six million electors. The platform of the Democratic party, adopted July 9, 1896, declared that

"We especially object to government by injunction as a new and highly dangerous form of oppression, by which federal judges in contempt of the laws of the states and rights of citizens, become at once legislators, judges, and executioners; and we approve the bill passed at the last session of the United States Senate and now pending in the House of Representatives relative to contempts in federal courts and providing for trials by jury in certain cases of contempt."

This complaint and demand for remedy by legislation has since been embodied in the platforms of the same party in many states, including the great order-loving commonwealths of Pennsylvania, Ohio, and Massachusetts. The platform of the Democratic party of Massachusetts, adopted September 28th, 1897, declared that

"The right of trial by jury is our great inheritance and shall not by our consent be impaired; but to-day great corporations demand from courts of equity, blinded by the interests of capi-· tal, injunctions that forbid workingmen from enjoying the inalienable rights and privileges of free men. The arrest of men for acts not forbidden by law and their trial and conviction without trial by jury or right of appeal to higher tribunals constitute judicial oppression and violate the safeguards of the Constitution and of the Bill of Rights. Judges who usurp the powers of the legislature and of the executive unlawfully invade personal liberty, and forget that this is a government of laws and not of men."

A leading Massachusetts lawyer, who is a prominent Republican member of the National House of Representatives, speaking in October last to a large meeting of the

1 Hon. W. H. Moody.

most influential Republicans of that state, was applauded when he said:

"I believe in recent years the courts of the United States, as
well as the courts of our own Commonwealth, have gone to
the very verge of danger in applying the process of the writ of
injunction in disputes between labor and capital; and I do
not propose to let the Democrats say that alone. But I
want you to consider for a moment what already has been
done.
You all around me, who will be members of
the General Court of Massachusetts, will deal with that sub-
ject as you please. It is a mere legislative detail. We, in
congress, must deal with it so far as it affects the courts of
the United States."

He then proceeded to state with apparent approval the passage by the United States Senate of a bill in relation to contempts in the federal courts, providing that no person shall be punished for a contempt not committed in the presence of the court, or so near thereto as to obstruct it, without a trial by jury, and the right to appeal to the Supreme Court; and continued by saying:

"This question of injunction will be dealt with in the Congress of the United States, and the question of injunction can be dealt with in the legislature of the Commonwealth of Massachusetts."

The matter has also provoked discussion by the profession. At the annual meeting of the American Bar Association, in August, 1894, an elaborate paper was read by Mr. Charles Claflin Allen of St. Louis, entitled, "Injunction and Organized Labor," in which the decisions up to that time were reviewed and the action of the federal courts sharply criticised.1

In the discussion upon this paper, a wide difference of opinion between the members of the Association was developed, but the importance of the question was recognized by all.

1 Reports American Bar Association, Vol. 17, p. 299.