As time went on the system became crystallized. His chancellor became a judge, who sat in a court of equity, as it was called, heard cases as the law judges did, but without a jury, and in the name of the King granted decrees which recited the facts, pointed out that there was no adequate remedy at law, and commanded the defendant what he should do or leave undone. It will easily be seen that if a chancellor were to be guided by nothing but caprice his court would become a terrible engine for tyranny. It used often to be sneeringly said that equity decisions depended on the length of the chancellor's foot. So there came into existence certain set rules under which equity was administered. Those rules were admirably adapted to the end of keeping the chancellor within 66 proper bounds. Equity follows the law;" Equality is equity;" "He who asks equity must do equity;" "He who comes into a court of equity must come with clean hands," and the like. The general rule was that wherever money damages for a wrong would be adequate compensation a court of equity would not interfere. There grew up this stereotyped phrase, that the plaintiff had no adequate remedy at law. If he could show that the defendant was doing or threatened to do him a continuing injury, irreparable in its nature, and for which money would not be compensation, he could obtain in an otherwise proper case a decree enjoining the defendant from continuing to do the act or from carrying out his threat. In order that the complainant might not be injured while the court was examining into the case, it would, on affidavits showing the necessity, grant a preliminary writ, called a temporary injunction, commanding the defendant to abstain from doing the thing during the pendency of the action. In our country the system of separate courts, one to give money judgments after a trial by a jury, the other to issue decrees after hearing before a judge, has been changed in most States so that one court does both. This is the fact also as to the Federal courts. We have still, however, in theory kept up the rule that a party asking for a command rather than money must satisfy the court that compensation in dollars will not meet his case and that precedents warrant the command. Right here is where the danger point is touched. The power of command has in all ages been a dangerous one. Its subjective results are often lost sight of in the presence of the oppression and wrong it has worked objectively. Kings and presidents, generals and judges, capitalists and walking delegates, if they search their own hearts, must know the evil effects upon themselves of the power of command. All persons know its pernicious consequences upon others when exercised unjustly. So long as our courts of equity wield the power of command under well-settled rules and within carefully marked bounds of precedent there is nothing to fear. It is open to question whether in every case where an employer has asked for an injunction against striking employees the court has inquired whether he acted justly in the beginning of the quarrel. Yet the time-honored rules say, "He who asks equity must do equity," and "He who comes into equity must come with clean hands." No wrongful act of a defendant should ever be allowed by a court of equity to affect its mind to the point of ignoring a contributing act of injustice by the plaintiff. Of late years the failure of judges to satisfy themselves on such points when granting preliminary injunctions has resulted in making the preliminary injunction, instead of the final judgment, the chief objective point of the suit. And so our courts of equity are being gradually turned into criminal courts for the enforcement of law and order through the medium of the power of command. Such an evolution of judicial jurisdiction from kingly prerogative was hardly expectable under a republican form of govern ment. The value of an organization like the Social Reform Club is that, composed as it is of men from all walks of life-professional men, capitalists, workingmen-such subjects are discussed impersonally and from different points of view. This report presents the question from the point of view of lawyers. The members of the legal profession are by their training necessarily conservative, yet their duty to their clients requires them to be watchful of their courts. They are the champions of liberty in civil life. So long as they are neither too blind nor too cowardly to rebuke courts for illegal exercise of the power of command we need have no fear for the rights of our citizens at the hands of our judges. This report constitutes no reflection upon any just judge. The rightminded judge exercises the power of command in fear and trembling; fear for the results upon his own character, trembling less the results to his neighbors may not be consonant with equal and exact justice to all. THE MODERN USE OF INJUNCTIONS. THE RALEIGH, Washington, D. C., February 6, 1902. EDITOR POLITICAL SCIENCE QUARTERLY, Columbia College, New York City. DEAR SIR: I inclose herewith a copy of an antiinjunction bill (S. 1118) which was introduced and reported from the Senate Committee on the Judiciary by Hon. George F. Hoar, of Massachusetts. This bill was introduced at the instance of the labor organizations, representing a large majority of the workingmen of the United States, with the hope that if it is enacted into law it will serve to at least check to some degree the unwarranted use of the writ of injunction by some of our Federal judges. This measure is now on the Senate Calendar, and we expect it will be called up for consideration soon, and in order to strengthen our side we are collecting several articles on the injunction question, written by eminent authorities, which we intend to ask the Senate to print as a public document, and we would like very much to include in this the article which appears in the Political Science Quarterly for June, 1895, written by F. J. Stimson, and entitled "The Modern Use of Injunctions." As I understand, this article is protected by copyright. On behalf of the railroad brotherhoods, I write to kindly ask you if you would please grant us permission to have this article printed in the manner above described. If you can consistently do this, I assure you it will be appreciated very much. Very truly, yours, H. R. FULLER. H. R. FULLER, ESQ., POLITICAL SCIENCE QUARTERLY, Washington, D. C. New York City, February 10, 1902. DEAR SIR: You are hereby authorized to have reprinted as a public document by the Senate the article on "The Modern Use of Injunctions," by F. J. Stimson, which appeared in this Quarterly for June, 1895. Very truly, yours, S. Doc. 190-8 WM. A. DUNNING, 113 [From Political Science Quarterly, June, 1895.] THE MODERN USE OF INJUNCTIONS.a We have all felt that there is in the public mind much doubt and uneasiness concerning the novel attitude taken by the Federal courts, of active interference in the labor troubles of the past two years. This doubt, though shared by many lawyers, is not confined to them; it exists more strongly, if less definitely, in the minds of the thoughtful public as well as of the laborers themselves. I believe it is never wise to ignore a general sentiment of this magnitude; for I believe that our race has inherited a general sense of liberty which, in a thousand years of transmission, has grown almost to an instinct that warns the people of a threatened invasion of their liberties even before it becomes the subject of cognizance by courts and legislators. And I believe that in the particular case at hand this disquiet or doubt is reasonable; that it may be formulated and based upon important principles, and that it may be justified by a reference to the facts which gave it rise. What are the facts? Briefly these: We have seen, in private lawsuits between individuals or corporations, courts of equity-civil, not criminal, courts-invoked to restrain, not alone parties to the suit, but anybody, the whole world, with or without actual notice of a court order or injunction, not merely from interfering with property which is the subject of the suits, but also from committing or conspiring to commit, or aiding or advising others to commit, acts which are criminal; and sometimes only on the ground that they are criminal acts-criminal at common law, or made so by the recent statutes known as the antitrust law and the interstate-com merce law. We have seen more: We have seen persons committing, or about to commit, or said to be about to commit, such acts, arrested by these civil courts, deprived of their liberty and punished by imprisonment; and this, as in the Debs case and others, after the emergency which furnished the excuse for invoking the protective jurisdiction of the equity court has long gone by. And we have seen persons so punished without the usual safeguards of liberty afforded by the criminal law-without indictment, without right to counsel, without being confronted with witnesses, without trial by jury—and sentenced without uniform statute, at the discretion of the judge. We have seen more: We have seen courts, not content with ordering all the world what not to do, order at a word the ten or twenty thousand employees of a railroad system to carry out each and every the definite or indefinite duties of their employment as directed by any of their superior officers, or by receivers of the courts themselves, so that for any failure or omission or merely negative act on the part of one of these employees he may be summarily brought into court and punished, either at that time or later, as the court may find leisure to sentence or its attorneys to file complaints. Take one example of many. Judge Ross, in the case of the Southern California Railroad v. Rutherford, where the bill alleged that the defendants continued in the employment of the complainant company, and yet refused to perform their regular and accustomed duties as such employees, said: It is manifest that for this state of affairs the law-neither civil nor criminal-affords an adequate remedy. But the proud boast of equity is: Ubi jus, ibi remedium. It Address delivered March 15, 1895, to the Young Men's Democratic Club of Massachusetts. is the maxim which forms the root of all equitable decisions. Why should not men who remain it the employment of another perform the duties they contract and engage to perform? It is certainly just and right that they should do so, or else quit the employment. [And in conclusion.] I shall award an injunction requiring the defendants to perform all of their regular and accustomed duties so long as they remain in the employment of the complainant company, which injunction, it may be as well to state, will be strictly and rigidly enforced." We have seen yet more. By the act of 1890, commonly known as the antitrust law, it is declared that "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States," is illegal; and by the fourth section, the Attorney-General, or any district attorney, upon the information of any individual, is authorized to institute proceedings in equity, in the name of the United States, to prevent and restrain violations of the act. Furthermore, by the interstate-commerce act of 1887 it is made a criminal offense for railroads, their officers or employees, to refuse to perform their duties as common carriers, and to refuse to receive the cars and passengers of other railroads or companies; as a result of this a strike of such employees becomes in effect also a conspiracy against interstate commerce. The first attempt to enforce the antitrust law was made in a case here in Boston, before Judge Putnam, of the Federal court. Judge Putnam wisely refused to extend the meaning of this act beyond its expressed words, and said: "It is not to be presumed that Congress intended to extend the jurisdiction of the courts of the United States to repressing strikes and boycotts, without very clear language. If the courts had stopped there, there would be little need for this address. But since then what changes have happened. The Attorney-General of the United States, or his district attorneys, acting for the United States in the exercise of its sovereignty as a nation, has sued out injunctions in nearly every large city west of the Allegheny Mountains. Injunction writs have covered the sides of cars; deputy marshals and Federal soldiers have patrolled railway yards; chancery process has been executed by bullets and bayonets. Equity jurisdiction has passed from the theory of public rights to the domain of political prerogative. In 1888 the basis of jurisdiction was the protection of the private right of civil property; in 1893 it was the preservation of public rights; in 1894 it has become the enforcement of political powers. From being applied to parties to a suit, the process of contempt has come to be applied to large bodies of men who may never have heard of the suit which gave it rise. For instance, the Chicago “omnibus bill" of last summer was filed to prevent interference with twentythree great railroad systems, and the injunction issued not only against several members of the American Railway Union by name, but against as many thousands unnamed; and, to prevent a possible confusion of identity in the defendants, it was further directed to "all other presons whomsover." The history of jurisprudence surely furnishes no precedent in which the chancery has called out the military in aid of an injunction writ. The antitrust law has not yet, it is true, reached its final interpretation in the Supreme Court; but it is fairly a subject of public discussion. The judges themselves who issued these injunctions and sentenced offenders to imprisonment for contempt of their orders, did so avowedly on the ground that the common law had failed-that the peace of the country demanded extraordinary remedies. Judge Woods, at a S. C. R. R. Co. v. Rutherford, 62 Cal., 796. bU. S. v. Patterson, 55 Fed. Rep., 641. C. C. Allen, address before the American Bar Association, 1894. |