Any change which transfers the power that belongs to a judge to a jury, or any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.

As the Supreme Court said in Calder v. Bull, decided in 1798, 3 Dall., 386, 388:

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*

The legislature * may command what is right, and prohibit what is wrong; but they can not change innocence into guilt or punish innocence as a crime, or violate the right of an antecedent lawful private contract or the rights of private property. To maintain that our Federal or State legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

In United States v. Union Pacific Railroad Company (98 U. S., 565, 569), the court had under advisement the act of Congress of March 3, 1873, which required the Attorney-General to bring a suit in equity in the name of the United States in a circuit court against the Union Pacific Railroad Company and others. The act provided a specific mode of procedure in equity, which, by removing certain restrictions on the jurisdiction, process and pleading which are in other cases imposed gave a larger scope to the action of the court and a more economical and efficient remedy than before existed.

The court was considering to what extent Congress might go in this direction and said, by Mr. Justice Miller, at p. 606:

Statutes of this character, if not so common as to be called ordinary legislation, are yet frequent enough to justify us in saying that they are well recognized acts of legislative power uniformly sustained by the courts.

It may be said, and probably with truth, that such statutes, when they have been held to be valid by the courts, do not infringe the substantial rights of property or of contract of the parties affected, but are intended to supply defects of power in the courts, or to give them improved methods of procedure in dealing with existing rights.

In the recent able work of Judge Brannon, of the supreme court of West Virginia, on the fourteenth amendment, the doctrine is thus summarized at p. 293:

But as it is settled that the State can not, by repeal or destruction of a remedy, take away all remedy existing at the date of a contract for its enforcement, so it can not, without violating the due process clause of the fourteenth amendment, take away all remedy to vindicate life, liberty, and property by repeal of existing laws of remedy or otherwise, and leave no remedy to the suitor or, rather, person.

So again, at page 297:

Under these principles, if a legislature undertakes to nullify a judgment, reopen a case by granting a new trial, or directing or authorizing a court to do so, or grants an appeal or continuance, or declares a past contract or conveyance invalid, or pass any act operative upon liberty, life or property, which is judicial in its essence, it is contrary to the due process demand of the Constitution, and void. The act simply usurps judicial authority.

If you deprive a person of remedy by injunction, in cases like those covered by the bill, then there is no remedy left. He has property without the means of protecting it. What is there that this committee, in the discharge of its power and in the investigation of the legal principles, is confronted with?

Briefly stated, not dressed in the intense fire of the prounion element or in the earnest determination of the antiunion party, but plainly disrobed, what is the proposition that is submitted in all its nakedness? That Congress shall pass a law which, where there are any disputes between

employer and employee, no matter what accompanies those disputes, no matter what destruction of property, what violence or intimidation, that Congress shall pass a law and tie the hands of the judiciary. Pass for a moment from the legal aspect of a situation that to me seems almost unthinkable, not only because of what it attempts to do, but because of what it portends in the future. Don't let us forget that the great safeguard of this country has been its judiciary-their quiet but unflinching and fearless independence, their integrity, their uprightness, their character. It is true that occasionally one will overstep the bounds of propriety, one will do acts that justify impeachment proceedings or call for investigation, but in the great maelstrom of private strife and struggle, human rights and liberty, and private as well as public property, have found their bulwark in our courts. They have been not only the ægis of protection to the capitalist, the owner of property, the employer of labor, but equally so to the laborer. Remove the shelter of the law from the former and the whole fabric tumbles-there will be no protection or security left for the other.

Now, if a distinct interest can, at the hand of Congress, bring about an obliteration, a rooting out, a destruction of an inherent, inseparable part of judicial power, where shall it end? Certain interests with which we are familiar as lawyers are quite inimical and distrustful of juries. I, for one, am not. I believe the average justice in cases of disputed facts and the measurement of damages resulting from the verdict of juries in the Federal courts is equal to the average justice done by the Federal judges. But there are many interests in this country-I will withdraw the word “many”—there are some interests in this country which are tending toward an attitude which does not see in the jury system that means of protection and guaranty of liberty which the founders of the Government and those who created the common law, back to Magna Charta, saw in this institution.

Suppose at the next hearing of this committee an effort is made to change the jury system. You answer that the seventh amendment to the Constitution says that trial by jury shall be preserved. I answer that trial in equity shall also be preserved; that the equity power, the maintenance of the equity courts, should be preserved equally inviolate; and that attempts to emasculate it should be repressed with the same stern and rugged vigor as would efforts to violate the institution of trial by jury.

I have spoken much longer than I anticipated that I would, and I can conclude in no better way than by quoting to this committee some words from the opinion of Mr. Justice Bradley in Boyd v. The United States (116 U. S., 659), which, by the way, was one of the few instances of the court declaring certain Congressional legislation unconstitutional. This is a sentence which is not infrequently heard in argument. I regard it as a most appropriate and apt warning. Judge Bradley said

this:

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* * But illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. close literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

I urge that it is the duty of Congress to be watchful for the constitutional rights of the citizen, and to stand firmly against any "stealthy encroachments" that interests that have real or imaginary grievances seek to incorporate into law.

Mr. GILLETT, of California. Before you take your seat, here are a couple of questions submitted. The first one by Mr. Furuseth: Do you hold that the police powers of the State are ineffectual? Mr. MAYER. In many instances, yes. In all instances affecting interstate commerce, because of the decisions of the United States Supreme Court that unless the act is a peculiar wrong under the common law of the State the State courts have no jurisdiction.

Mr. GILLETT, of California. Another question, which is submitted by Mr. Fuller:

What evidence have you that a labor union sent men out with guns to shoot the men who took their places?

Mr. MAYER. The strike at the Chicago Stock-Yards vididly furnishes the proof; and "evidence" is also perpetually preserved in the 158th U. S. Reports, in re Debs. It is likewise contained in other reported cases, to some of which I have already made specific reference. (Thereupon at 12.30 the committee took a recess until 2 o'clock p. m.)

COMMITTEE ON THE JUDICIARY, March 23, 1904. The committee met at 10.30 a. m., Hon. John J. Jenkins, chairman, presiding.

STATEMENT OF HON. FREDERICK E. MATSON, OF INDIANAPOLIS, IND.

MR. MATSON. Mr. Chairman and gentlemen of the committee, I am indebted to your committee and the people whom I represent are indebted to the committee very greatly for the convenience of these continued hearings, which have enabled me to be present. I endevored to be present at the hearings in February, as you perhaps may know, but was confined by illness at the hotel and was unable to appear. I understand something of what it means to have hearings like these in the closing hours of a busy session, and I shall undertake to be as brief as I can. In fact it seems to me that almost every phase of this question has been fully touched upon and I doubt if any man can say anything at this time that is really new.

I have the honor to represent here, first, the Employers' Association of Indianapolis, of which I am secretary and attorney, and I was also designated at the convention of the Citizens' Industrial Association of America, held February 22-23 in Indianapolis, as one of three persons to appear for that association. And at this point I think I may properly say, Mr. Chairman, that in coming here to oppose this bill I represent the sentiments of the people of Indiana as well as of the particular associations I have named. And the reason I say this is that at the last session of the general assembly of Indiana in 1903, there was introduced in the senate a counterpart of this proposed legislation, a bill which provided that prosecutions for indirect contempts of court should be triable by jury, which, of course, was

intended to arrive at the same objects as those aimed at by the measure now before you. That bill was referred to the judiciary committee of the senate, of which I have the honor to be a member, and we had no difficulty whatever in dealing with it in a summary manner.

There were two reports-the majority report for an indefinite postponement and a minority report favoring the passage of the bill. When the reports came into the chamber, the minority report was tabled at once without argument, and the majority report to indefinitely postpone was adopted also without debate under the operation of the previous question. There was no politics in it at all. The members there of both parties understood perfectly well that the people of Indiana would not tolerate any legislation that would unsettle established conditions, as that would. And so I think I am entirely safe in saying here that I represent, in opposing this bill, the mature sentiment of a large majority of the people of Indiana.

Now, I shall take but little time upon the anticonspiracy feature of this bill. The fact is I do not believe that even the advocates of the bill are very much interested in its anticonspiracy side, although that occupies nine-tenths of the phraseology of the bill. It looks to me very much as if it were thrown in to obscure the vast importance of the anti-injunction feature.

I do not know of any instance, or at least of very few instances, in which the anticonspiracy feature, that is to say, the criminal feature, of the Sherman antitrust act, has been obstructive of the purposes of the leaders of organized labor; nor do I know of any instances, or at least of very few instances, in which there have been punishments under that act. And the same is true as to anticonspiracy laws in general, and in discussing this subject this morning I shall discuss it generally as if it were the expectation that this bill should not only become a Federal law, but should become a law in every State as well, because I assume that if it would be good law for the Federal courts it would be good law for the State courts, and that if passed by Congress it will be followed up and urged upon the legislatures of the States.

Now, the gist of a conspiracy, whether it be criminal or merely unlawful, is injury to some one or some one's property. That is the very essence of any conspiracy, no matter by whom it is planned or to what particular purpose it is directed. If the plan does not involve injury it is not under the law conspiracy. So, when we find people here asking that you abolish a portion of the law relating to conspiracy, that necessarily means that they have a desire to combine and agree together to injure something or somebody. Otherwise the present law of conspiracy would in no wise stand in their way. It seems to me that is the logical conclusion of their position. Now, what will the anticonspiracy feature of this bill do if it should become a law? It would simply wipe off the slate of crimes certain acts that have been unlawful from time immemorial, because as far as there is any law relating to conspiracy it is either the common law or statutory law declarative of the common law, and therefore has been in existence time out of mind, for any rule must be in existence from time out of mind before it becomes a part of the established common law of the land.

So we find here a proposition, Mr. Chairman, in plain terms, to make conduct which from time immemorial has been unlawful or

criminal lawful and innocent. There is no other conclusion to be reached. Now, if we are going to enter upon legislation to render acts which have always been considered unlawful or criminal innocent for the future, why do we confine it, or why should we confine it, merely to a certain class of acts and for the benefit of a certain class of persons? A conspiracy by a labor union-that is to say, an agreement or combination by which it is intended to stop a man's business or obstruct a man in his right to work, unless he submit to a demand made upon him, can have no other purpose than to compel him or coerce him into doing something that he does not want to do; and in such a case you have him confronted with the alternative either of acceding to the demand to do something he does not want to do, or of being injured as a result of the conspiracy against him.

Now, why may we not just as well and with just as much fairness and justice abolish the law of conspiracy relating to agreements to commit a fraud, or agreements to commit burglary, or agreements to commit a trespass, or agreements to commit waste, or agreements to commit a nuisance, all of which are intended to injure something or somebody? I really see no reason whatever in logic or in justice. for selecting out of the category of things which the common law has from time immemorial made unlawful or criminal, certain acts, certain courses of conduct, and saying that in the future those things shall no longer be unlawful or no longer be criminal, but shall be innocent henceforth, and that the particular class of people who are asking for this legislation may in future, without any liability whatever, either civil or criminal, proceed to hatch conspiracies and agreements which are necessarily intended to injure others; for, as I said before, if these agreements in furtherance of labor disputes are not intended to injure others or others' property, then they are not and can not be conspiracies, and hence there would be no need of changing the law upon the subject.

Now, the antiinjunction feature of this bill contains, I think, the real "milk in the cocoanut." It is the injunction that has stood as a protection when rights of property have been assailed by means of unlawful conspiracies. In reading the arguments by the advocates of this bill, both as made before this committee at this and previous sessions, and as published in the leading newspapers and journals of organized labor, I have tried to reduce their objections to the present order of things into some kind of classification. I have tried to find out if possible what is the real meat of their objection to the present equitable jurisdiction of the courts. It seems to me that their criticisms of the present order of things may be divided into what might be called minor objections and principal objections. The minor objections, as I find them in Mr. Gompers's argument and also in the editorials in some of their leading journals, are, first, that the courts often do not read the petitions for injunction when they are presented; second, that the time set for the hearings is too far away, too remote; and third, that the courts have made mistakes, have gone too far.

Now, with reference to the reading of the petition by the court, of course that may be important. No court ought to pass upon any subject without giving it due consideration. But when you remember that under the rules of equitable procedure if certain material allegations are found in the bill, which must of course be verified, then there is nothing for the court to do but to issue the temporary