Mr. DARROW. I did not catch the first part of your question.

Mr. WARNER. Is not the object of this bill to prevent the issuance of an injunction restraining an act which will result in the impairment in an unlawful manner of property and compel the parties to wait until the act is committed and the damage done and then the result will be a suit at law?

Mr. DARROW. That is not the object.

Mr. WARNER. Will not that be the effect? Mr. DARROW. No; we do not think so. Let us look at that question you put, because that is one that naturally suggests itself. Take an extreme case. Here are a body of men who are about to commit an assault on property, and the court issues an order. That does not prevent it. It simply places him in a position where he is punishable for contempt if he does. The whole police power of the State is ready at any moment to prevent the committing of an offense, and that is the only thing that can. The simple order of the court not to burn somebody's building or not to commit a criminal offense is not the slightest restraint not the slightest on anybody who would do it. It serves some kind of purpose, to be sure; it puts a cloud on a title to property, and prevents transfers; but in the end, if you are an evil doer, you must be deterred by the police power, which is the only thing that does it, and no punishment for contempt could be had until the act is really committed. Nothing else could run but an order; nothing else in the world.

Mr. OVERSTREET. You are not opposing a restraining order, but you are advocating that if that order is violated then it becomes instantly a fact to be determined by a jury before the individual can be incarcerated for contempt. Am I right?

Mr. DARROW. Either one of those conditions would be satisfactory to us.

Mr. OVERSTREET. Are you advocating, or are you not advocating, a restraining order, or the abolition of a restraining order?

Mr. DARROW. My own idea is that a restraining order in itself is mischievous; that it should not issue.

Mr. OVERSTREET. I thought you were arguing on the question of contempt; that it must be submitted through a trial by jury to ascertain the facts.

Mr. DARROW. I was arguing that these injunctions as they have been issued result in the imprisonment of men without trial by jury. Now, if you prevent either by preventing the issuing of injunctions under these conditions or by providing that in such cases as they amount to a crime there should be no conviction without trial by jury, either one of the two

Mr. OVERSTREET. Which do you advocate?

Mr. DARROW. Personally, if I were to pass upon it, I should prevent the issuing of injunctions entirely; but I do not know how you gentlemen may look at it; I do not know how Congress may look at it.

Mr. ÖVERSTREET. Is there not a distinction between a restraining order and an injunction?

Mr. DARROW. The bill is to prevent the issuing of an injunction in all these labor troubles, and it seems to me it should pass.

Mr. OVERSTREET. I do not think you quite catch my distinction. I think there is a difference between an injunction and a restraining order. The whole end of a restraining order is to give the court

opportunity to inquire into it before the injunction takes place. Do you think there ought not to be any restraining order allowed?

Mr. DARROW. I think no restraining should ever be allowed in one of these cases.

Mr. OVERSTREET. In no case?

Mr. DARROW. No; I could not say in no case. I think there are cases where a restraining order might be issued, but not in any of these disputes involving purely criminal matters, as these cases do. Mr. CLAYTON. That is, any disputes between employers and employees; that is the language of the bill.

Mr. DARROW. That is what we are asking now.

The CHAIRMAN. Let me call attention to what the court decided: Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crime. This, as a general proposition, is unquestionable. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature, but when such interferences appear the jurisdiction of a court of equity arises, and it is not destroyed by the fact that they are accompanied by or are themselves a violation of the criminal law.

Mr. LITTLEFIELD. That is precisely my point.

The CHAIRMAN (reading).

The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property rights, and the party aggrieved has no other remedy for the prevention of the irreparable injury which will result from the failure or the inability of a court of law to redress such rights. Mr. DARROW. Is there any criminal case where there is no property interest involved?

The CHAIRMAN. Does not the court hold clearly that there is no jurisdiction in any court to restrain the commission of a crime as such but the power of the court to restrain an unlawful act, the destruction of property or interference with property rights, can not be divested because the act involves also an offense against the criminal laws of the land?

Mr. DARROW. That is what they say. What we claim is, that they are doing it every day.

Mr. LITTLEFIELD. Have you got cases where they are now pending where these orders have been issued?

Mr. DARROW. This Debs case is one.

Mr. LITTLEFIELD. That is ancient history.

Mr. DARROW. There is the American Steel and Wire Company.

Mr. LITTLEFIELD. Where is that pending?

Mr. DARROW. That has been decided by the United States circuit court. I do not know whether it is pending now or not.

Mr. LITTLEFIELD. What district did that arise in?

Mr. DARROW. It arose in Cleveland, Ohio.

Mr. LITTLEFIELD. I just wanted to get it if you had it in your mind. Mr. DARROW. Then, there are the coal cases, when we had the coal strike.

Mr. LITTLEFIELD. Are they pending now?

not.

Mr. DARROW. I will not be sure whether they are pending now or I think the most of those injunctions were made permanent. In Chicago we are having them all the time in the State courts now, following in the line of the Federal courts.

Mr. LITTLEFIELD. What harm would come if we all concede that the men have the right to strike just as much as the employers have the right to combine

Mr. DARROW. Yes.

Mr. LITTLEFIELD. I mean, now, a strike unaccompanied by assaults or overt acts. How can they be injured in any way?

Mr. DARROW. Because the judge decided that they committed overt acts when Mr. Debs was as innocent of the charge as any man in this room. There was not one word, or one act, or one utterance of any sort proven against Mr. Debs or one of his associates.

Mr. CLAYTON. You think the only remedy to prevent this abuse by Federal judges is to deprive them of the power to issue injunctions in such cases?

Mr. DARROW. Or to punish contempt with trial by jury.

Mr. LITTLEFIELD. That would emasculate the whole thing, of

course.

Mr. DARROW. It would prevent this.

Mr. LITTLEFIELD. Of course you can see the power to punish for contempt if it is limited to conviction by jury of an offense would simply, of course, emasculate the whole power.

Mr. DARROW. No. The jury would pass upon the question of whether the offense had been committed.

Now, let me call attention to a few matters before we get strayed off on some of these questions, which I am glad to discuss in this way, because there are difficulties in all of these questions. Suppose a man threatens to burn my house, and I go to the judge and say, "John Smith is about to burn my house," and he says, "I will take care of John Smith," and he will issue an order restraining him from doing it. There is a crime which involves property rights the destruction of my house. To-morrow I go to the judge and say, "John Smith has burned my house," and he hauls him up and sends him to the penitentiary for twenty years for contempt of court. There is a matter which is more clear and direct than any of these cases could possibly be, and the same which is true of arson is true of any crime involving property—burglary, larceny, or anything; but the trouble with it is the experience of all of us has shown that no individual rights are safe with courts, not that courts are different from the rest, but because they are like the rest.

Mr. LITTLEFIELD. We have a statute in my State which allows the court to issue an injunction against a man selling rum

Mr. DARROw. That must be Vermont.

Mr. LITTLEFIELD. No; Maine. What would you say about that? Mr. DARROW. I suppose it is on the theory that it is a nuisance? Mr. LITTLEFIELD. Yes.

Mr. DARROW. I do not believe in it, but the people can do anything they want to if they wish it badly enough, of course.

Mr. LITTLEFIELD. Of course, that is statutory; that is not common law.

Mr. DARROW. Of course, I do not believe in any of it. I know there was a man sent to the penitentiary for sixty or seventy years up in Vermont by cumulative sentences, but it will not do to say that wherever property interests are involved a judge may try the case. is not the province of a judge, and when you do it it absolutely takes away the trial by jury; and all over the United States there are work

men, perfectly honest, who have been sent to jail by a court that could be sent to penitentiary by court just the same, and in every single instance because they committed an offense, a crime, and have generally been indicted as well as an injunction asked, and in almost every instance they have not been convicted. Of course, they have sometimes been.

Mr. LITTLEFIELD. How many were jailed in the Debs case, by the way?

Mr. DARROW. Six; sent for three and six months. Gentlemen, you may think it is a strange statement to make that there was not a word of evidence in that case. Of course you can look it up, if you care. Mr. CLAYTON. And they were sent not because they violated any specific criminal law, but simply because the court adjudged them guilty of contempt in violating its order?

Mr. DARROW. Of course that was the theory, the same as in the arson case I put. I come into court and I say, I have got to have a trial by jury as to whether I burned this building," and the judge says, "Of course that is true, but I am not trying you for that, I am trying you to see whether you violated my order not to burn." And it comes in every case, and it is nothing else. Now, why should there be this power; what is the object of it? Why can not I get protection just as I can against a man cutting my throat? The police power of the State and the police power of the nation, why is that not good enough in any of these cases between employer and employee? It is never invoked on the part of the men against the employer.

It is impracticable and impossible to do so, but there is no case arising to-day where there is difficulty between employers and employees but what the first thing done is for the employer to rush off to court and the court order an injunction. Now, in the Frazier and Chalmer's case in Chicago, Mr. Chalmer went into the court and got an injunction and went before the grand jury and got an indictment, and within six weeks his attorney was in my office to get these men to sign that they would not prosecute civilly for having indicted them, and they dismissed every single case.

Now you gen

Mr. LITTLEFIELD. For malicious prosecution? Mr. DARROW. Yes; they dismissed every single case. tlemen know how it is, especially you who are lawyers. I am not making any charges against the courts, they are just like the rest of us. They go upon the bench with exactly surroundings in which they have lived. Very few of the Federal judges go upon the bench except as corporation lawyers accustomed to view a property right as the greatest right, disregarding individual rights and considering property rights as everything. Very few of them have made a careful study of the interests of the working people or thought anything about it. There is no doubt they are as good men as anybody else, but that side of the case has never been presented to them, and they go upon the bench with the prejudice of the class from which they come almost invariably; and in these Federal courts men who are experienced in trying cases in both courts invariably know that in the Federal courts property rights are much more protected and in the State courts personal rights are much more protected.

Take Chicago, where I practice, and in every case against the Chicago, Milwaukee and St. Paul Railroad Company, against the Grand Trunk-in every case a change of venue is taken by the company from

the State to the Federal court, not because the judges are not as good, but simply because they come from that atmosphere hostile to the interests of the common people, and we insist that their hands should be tied to some extent. I remember in reading in one of Jerry Black's celebrated arguments in the Milligan case, where he contended in regard to the right of the trial by jury, he stated that King Alfred was obliged to hang 60 judges in order to maintain trial by jury in England. The tendency is to enlarge. If you give men arbitrary powers the tendency is to enlarge from year to year and from day to day; the tendency of the courts is to reach out and take more and more power. Thomas May, in his constitutional history of England, stated the judges of England had never been defenders of liberty, but its opponents.

Mr. LITTLEFIELD. But lawyers were.

Mr. DARROW. But lawyers were believed to be for it. But in the latter days we are so anxious after these big corporation fees that we seem sometimes to forget it; but lawyers have always been called upon for it, but I suppose the tendencies of the judges of courts and the prosecutor have been very close together, and that is the reason we did not have trial by jury. Now we believe that their right of trial by jury is being constantly undermined by the courts; that workmen all over the United States are being sent to jail purely on the charge that they have committed a crime.

Mr. FLEMING. In this particular bill you ask us now to pass, this bill that is especially before us, do we understand this bill to be drawn for the simple purpose of giving the right of trial by jury to men charged with violating a contempt order not in the presence of the court?

Mr. DARROW. No; this does not; this prevents the issuing of an injunction

Mr. FLEMING. At all?

Mr. DARROW. At all. I think that bill ought to pass as it is. But the other would serve the purpose just as well. It would accomplish the same thing undoubtedly.

Mr. FLEMING. It would be much more easily passed.

Mr. DARROW. I think it will serve the purpose, and I think our people would believe that it was what they were entitled to and their petition had been fairly heard.

Mr. LITTLEFIELD. Do you think it is wise legislation to discriminate between any cases where a trial by jury should be had?

Mr. DARROW. No; or between any classes of men.

Mr. LITTLEFIELD. Of course this does.

Mr. JENKINS. Two cases arose in Wisconsin in which this particular question was involved. One was in regard to a street-car matter and the other was a lumber matter. Now, you speak about the influences surrounding the judges. Now, the judge that tried that case was a Democrat in politics, a Catholic in religion, and never tried a corporation case in his life, and yet he held that the mayor and city council were guilty of contempt, and enjoined him from proceeding, on the ground that he did not have any jurisdiction at all. They insisted that if they could be tried by jury a jury would have acquitted them; and the same question was involved in the lumber case. There they were restrained by restraining order of the court from crossing the