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 capital, 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 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. At the same meeting, that conservative jurist who has always stood strongly for the honor and power of the courts, Thomas M. Cooley, in his annual address as president, after a careful review of the lamentable labor disturbances of that year, said: "Courts with their injunctions, if they heed the fundamental law of the land, can no more hold men to involuntary servitude for even a single hour than can overseers with the whip."1 And as his closing admonition to the profession, asked that attention "be given to the question whether discretionary punishment of strikers as for contempt, when the acts punished were but trespasses upon the possession of a receiver, is not being pushed to an extreme that is a little startling.' In June, 1895, Mr. F. J. Stimson, a thoughtful lawyer and accurate legal student, called attention to the subject by an article entitled, "The Modern Use of Injunctions,' and declared that the federal courts had exceeded their equity powers and practically undertaken to punish riots and other criminal acts by process for contempt, based upon injunctions which ought not to have been issued. Mr. William H. Dunbar of the Boston Bar has recently written for a leading English legal periodical an able article on this subject, in which he says the action of the courts 66 presents a serious menace to the very framework of the government." 4 Judges of high character have not hesitated to criticise the action of the federal courts, and to say that it should be checked either by legislation or, as one of them suggests, by the sure remedy 1 Reports American Bar Association, Vol. 17, pp. 15–51. 2 Reports American Bar Association, Vol. 17, pp. 240, 243. 3 Political Science Quarterly, June, 1895, p. 1. 4 The Law Quarterly Review, October, 1897, p. 347. "of a constitutional amendment which shall make the United States judges elective by the people in their respective districts and circuits for a term of years.' "1 Of thirty judges, lawyers, and prominent persons in the middle Western States, whose views were asked upon this subject in 1894, fifteen of the judges replied; only two of them defended the action of the federal courts, and one of those was a federal judge who had himself issued an injunction in a labor controversy; six were noncommittal, while seven criticised the action and suggested a remedy by legislation or constitutional amendment. On the other hand, President Henry Wade Rogers of the Northwest University, declares that these injunctions do not violate the constitutional guarantee of trial by jury, but have only been issued in the exercise of the equity power to prevent irreparable injury to property, and that the interests of labor and capital alike demand that unlawful acts shall be prevented. And so prominent a person as the late United States Senator, J. M. Palmer of Illinois, and a recent candidate for President of the United States, has said that 66 "Until some satisfactory substitute is found by congress or state legislatures for the control and protection of the rights of person and property, the country will be compelled to submit to a government by injunction. Speaking for myself, I prefer a government by injunction to anarchy, the rule of a mob, or that of a musket." 2 Nor has this criticism been confined to the states where these injunctions have been issued. In October last, a leading Republican newspaper of New England approved the opposition to "the growing use of injunctions; "3 and 1 Murray F. Tuley, Chief Justice Illinois Court of Appeals; James McCabe, Chief Justice Supreme Court of Indiana; Jesse J. Phillips, Chief Justice Supreme Court of Illinois; Walter Clark, Justice Supreme Court, North Carolina; John Gibbons, Justice Circuit Court, Illinois. 2 Chicago Times-Herald. 3 Boston Journal, October 5, 1897. the Boston Herald, in an 'editorial review of the question stated that "The criticism that can be made upon recent judicial action of the kind referred to is that in the opinion of a large number · of our people it has gone beyond proper limitations, and, as a result, restraints have been imposed upon individual action which neither the national congress nor the legislatures of the various states would ever have imposed if the facts in the case had been brought to their attention." "On the other hand," it adds, "It should be insisted upon that the cure for the evil is not to be found in throttling the power of the courts, which is the safeguard of individual liberty, but in so impressing upon the thought and conscience of the nation a true conception of equity that no judge will think of misusing, or will dare to misuse his power." A prominent religious paper of New York has discussed the question in several leading articles and criticised the conduct of the federal courts in language conservative, but severe, declaring that the great danger to be feared is that the people will lose confidence in the courts.2 It was the dominant purpose of the makers of our national and state constitutions to prevent the exercise of arbitrary power by any man or any set of men. To accomplish this, they so distributed the powers of government among the executive, legislative, and judicial departments of the government, that each branch should not only be independent of the others, but that each should be a check upon the exercise of arbitrary power by the others. It was believed then that the judiciary, although necessarily having arbitrary power in some cases, was the weakest of the three branches, and, therefore, could not unduly exercise such power. But although the legislature holds the purse, the executive the sword, and the judiciary has 1 Boston Herald, October 2, 1897. "The Independent, August 26, 1897. Independent. "Government by Injunction," New York |