neither money nor physical power, it has under our constitutions the power to decide absolutely upon the constitutional limitations not only of the power of the legislature and of the executive, but upon the constitutional limitations of its own power. With no power to tax, and no power to coerce, it can, not only decide upon the constitutional extent of the power to tax and of the power to coerce, but upon the extent of its own power to decide. And it is claimed that the judges can thus, by the exercise of the equity power to issue injunctions and to punish the violation of them at their discretion by process for contempt, within constitutional limitations adjudged by themselves, create rules of conduct, adjudicate as to the violation of such rules, and punish the violation at their discretion. It cannot be doubted, I think, that this power, although discretionary and therefore in a sense arbitrary, is essential to the proper exercise of the equity power of the courts. The judiciary have had this power, and have exercised it since the foundation of the government without criticism until within a few years. At the same time the federal judiciary has step by step assumed jurisdiction to an extent of which it is safe to say the founders of the Republic never even dreamed. But such has been the character of the judges and the confidence of the people in their integrity and wisdom, that the legislature, the executive, and the people have, with the rarest exceptions, until recently yielded an almost unquestioning obedience to their deci sions. For more than a hundred years, the judiciary, state and federal, has exercised its equity powers so wisely and judiciously as to secure and retain the absolute confidence of all our people. Why is it that within a few years its conduct in the exercise of these powers has been such as to provoke widespread dissatisfaction and criticism? Has it exercised its discretionary power to issue injunctions and to punish for contempt in equity causes, contrary to the spirit of the constitution, and so as practically to deprive persons of the constitutional safeguard of jury trial? This is a matter which concerns the exercise of judicial power, and in which the Bar ought to have accurate knowledge, a wise opinion, and a controlling voice. The people have a right to expect the profession to act in such a matter. It is our duty to see to it, so far as we can, that the administration of justice is conducted in a proper manner and within the limits of constitutional power. A profession from whose members the judges are taken, and by whose aid and counsel the judiciary exercise their powers, ought not to sit silent under the circumstances which exist in respect to this matter. It is the duty of the Bar to know whether this complaint has just foundation, and if it has, to see to it that a wise and judicious remedy is applied. Certainly no locality can be more favorable for an impartial discussion of this question than a state where, so far as I am aware, no such ground of complaint has ever been alleged to exist. It may be said that this is a question which respect for the courts forbids the Bar to discuss; that it is improper for us, as officers of the court, to examine into their conduct and criticise their action if found to be wrong. On the contrary, I believe we are the persons who should criticise the action of the courts, if it ought to be criticised, and defend it if it ought to be defended. And I am confident that the courts, so far from regarding this as improper, will welcome it as an aid to them in the discharge of their difficult duties. What, then, are the facts? Is there, then, any real foundation for this widespread and persistent complaint? Have the judiciary usurped legislative or executive power, or so exercised judicial power, as to, in fact, exercise legislative or executive power? In short, what is "Government by Injunction?" and does it exist in the United States? In the first place, as, I have observed, this complaint is of very recent origin. The state and federal courts, in the administration of justice over our widely extended territory, exercised their equity powers of injunction and of punishment for contempt for violation of such injunctions more than a century before any complaint as to their action in this respect was made. It is within less than five years. that this complaint of their conduct has arisen. This of itself would seem to challenge attention and provoke inquiry as to whether they have not assumed a new power or exercised an old power in an improper manner. To ascertain this, however, a review of the decisions upon which the complaint is based is necessary. Unfortunately these decisions have nearly all been made in disputes between organized or unorganized labor and employers, and have thus appeared to be directed against workingmen for the protection of the property of capitalists. The first use of injunction to prevent unlawful conduct by organized labor was, I think, in Spinning Company v. Riley, L. R., 6 Equity 551, in 1868, where the officers of a trade union were enjoined from intimidation of workmen by the use of placards and advertisements directing them not to be employed by the Spinning Company. Upon demurrer, it was held that the acts of the defendants as alleged by the bill, although they amounted to crime, could be restrained, because they also tended to the destruction or the irreparable injury of the plaintiff's property. The vice-chancellor in this case stated the jurisdiction of a court of equity in this respect as follows: "The jurisdiction of this court is to protect property, and it will interfere by injunction to stay any proceedings, whether connected with crime or not, which go to the immediate or tend to the ultimate destruction of property, or make it less valuable or comfortable for use or occupation." The decision of the case itself was overruled in 1874, on the ground that an equity court cannot enjoin a libel (Assurance Co. v. Knott, 10 Ch. Ap. 142), but the rule as thus stated has been the precedent for subsequent decisions. This rule, it will be observed, placed the jurisdiction of the court wholly upon private grounds; that is, the protection of private property, and not in the slightest degree upon the protection or preservation of public rights. In 1888, the Supreme Court of Massachusetts, and in 1891, the United States Circuit Court in Ohio issued injunctions to restrain boycotts by solicitation, threats, parading with banners, and other devices calculated to intimidate workmen, and to injure employers for whom they desired to work. Those cases were placed entirely upon the rule stated in Spinning Company v. Riley, and provoked no special comment outside the profession. But in 1892, the courts, especially the federal courts, began to exercise the power to issue injunctions and punish violation of them to an extent which has caused the discussion and complaint to which I have alluded. The following is a statement of the reported cases in the order of time so far as I have been able to gather them in the limited time at my command: Coeur d'Alene Consolidated & Mining Company v. Miners' Union (Circuit Court, D. Idaho. July 11, 1892), 51 Fed. Rep. 260. Here, upon bill by a foreign corporation against citizens of Idaho, alleging that the defendants had organized into several miners' unions, for the purpose of controlling and dictating the wages to be paid in the plaintiff's mines, and by means of threats, intimidation, and force to prevent all persons other than themselves from working in the mines, whereby the plaintiff had been compelled to cease to work its mines, and that the defendants were insolvent and unable to respond in damages, an injunction was issued by Beatty, D. J., restraining the defendants 1 Sherry V. Perkins, 147 Mass. 212. Casey v. Typographical Union, 45 F. R., 135. "from entering upon complainant's mines, or from interfering with the working thereof, or by the use of force, threats, or intimidation, or by other means,1 from interfering with or preventing complainant's employés from working upon its mines." This injunction was ex-parte, and upon motion to vacate it the Judge found that the "defendants are organized into associations wherein submission to stringent and arbitrary rules is required; that by means approaching dictation, they have attempted to control employers in the selection of laborers and the wages to be paid them, and have discouraged, and, as far as they could, prevented, those who do not belong to their societies from procuring work; that, by force, in one instance, they took complainant's laborers from its mine to their hall, where, upon such laborers refusing to comply with their demands to join them, and abide by their laws, they actually ordered their banishment from the state, and in a manner deserving the most severe condemnation enforced their lawless decree, and against men, who, by reason of their birth, and not through the grace of the government, were entitled to all the rights of American citizenship; that in such numbers, and under such circumstances, as were menacing, they have requested non-union men to cease work, and to such have applied, in an offensive and threatening manner, most opprobrious epithets, and in other ways have annoyed and vexed laborers who refused to join their associations.” He also stated that the governor had, by proclamation, declared that it had come to his knowledge "that there now exist in the county of Shoshone, state of Idaho, 1 The italics in this and subsequent quotations are mine. |