Article by the President in McClure's Magazine: "Judicial Decisions as an Issue in Politics"

Last summer at Hot Springs, after the Convention and before the electoral campaign had been actively begun, Mr. McClure asked me to furnish him two articles for his magazine, to be printed after the election. I suggested to him that if I were defeated he might not desire the articles, but he said he would run the risk. One subject which he proposed was my labor decisions, and the article that follows is a compliance with the promise I then made.

I believe it is true that I am the only successful candidate for the Presidency who ever had extended judicial experience. Mr. Van Buren had been a surrogate or probate judge early in his career, and Andrew Jackson, I believe, did serve as a judge of the Supreme Court of North Carolina, but it was a very unimportant part of his life, and his service did not bring into the issues of his campaigns any discussion of his work as a judge.

Judge Parker, so far as I know, is the only other candidate who had been for any number of years on the Bench; and while there was some reference in the campaign to his judicial opinions, they did not involve any issues made in the platform, and were not given special prominence on the stump or in political editorials.

In 1896 the judgment of the Supreme Court in the income tax case was made a subject of heated discussion, and suggestions that the court might be increased if one party was successful, so as to bring about a reversal of the decision, were not wanting. Still, I think it may be truly said that in no campaign since the beginning of the government has there been directly involved as an issue a question considered and decided by one of the Presidential candidates as a judge.

It is not the first time in my family that a judicial decision has played an important part in the political fortunes of the judge deciding it. While my father was a judge of the Superior Court of Cincinnati, the question arose whether the school board of the city had the power by resolution to change the rule under which schools were opened in the morning by the reading of the King James version of the Bible. Two of the judges of the Superior Court held that this was beyond the power of the school board, while my father, the third judge, dissented. The case proceeded to the Supreme Court, and that court, in a unanimous judgment, approved the views of my father as a dissenting judge in the court below. Notwithstanding this result, in three gubernatorial campaigns my father was defeated in Republican conventions on the ground of his decision in the Bible case; but it never fell to his lot to be nominated as a party candidate and to find it necessary to go upon the stump to explain or defend his decisions. I think I may say that my experience in this respect has been truly exceptional.

To make the controversy clear, it is necessary to refer to the efforts made by the American Federation of Labor and the railroad labor organizations to secure legislation against what they claimed to be the abuses of the power of injunction by courts of equity in labor disputes. Mr. Gompers and the American Federation of Labor were much more radical and drastic in their demands than were the railroad organizations. Mr. Gompers demanded the passage of a bill containing two sections: The first section provided that no injunction should issue from a court of equity except to protect property rights from irreparable injury where there was not adequate remedy at law, and contained the proviso, which embodied the whole intent of the section, that injury to business of a complainant in such labor disputes should not be considered an injury to property rights; and the second section contained a provision which in effect legalized the secondary boycott and rendered immune from criminal or civil prosecution or injunctive process those taking part in such a boycott. This was known as the Pearre Bill. President Roosevelt and the members of his Cabinet whom he called into consultation, of whom I was one, were quite willing to concede that the power of the issuing of injunctions in the form of temporary restraining orders, without notice to the party affected, had been abused in some cases by Federal judges, and that it might be wise to take away the power of issuing such orders without notice and restore the law to the condition in which it had been when the Federal Judiciary Act of 1789 was put in force. At that time no temporary injunction could issue without a notice to the party affected and an opportunity to be heard. A bill to effect such a change was introduced and probably would have passed if Mr. Gompers and the American Federation of Labor had been willing to accept it as a compromise.

At the head of a delegation of labor-union men, Mr. Gompers visited the President. The President told him very plainly that he would not and did not favor the bill known as the Pearre Bill, for he thought that the power of injunction ought to be exercised quite as much against lawless workingmen as against lawless capitalists.

Thus the issue was made in the Congressional campaign of 1906, and Mr. Gompers summoned assistance from his fellows of the American Federation of Labor to defeat Mr. Littlefield in Maine, Mr. Cannon in Illinois, and a great many other Congressmen who were put upon the so-called "black list" because they declined to consent to the passage of the Pearre Bill, and refused to withdraw the protecting influence of injunctive process from a man's business rights and to legalize boycotts. The electoral campaign carried on by Mr. Gompers was not successful in defeating any Congressman whom he had blacklisted, and into whose district he went for the purpose of defeating him. Of course in each district many other issues played a part, and it is difficult to tell how much influence Mr. Gompers exerted in taking away votes from the successful candidate. He renewed his efforts in the next Congress, but without avail.

Then came the presidential conventions of the two parties. Mr. Gompers appeared before the Committee on Resolutions of the Republican Convention, and demanded the approval of the Pearre Bill or its equivalent. The President and I favored the following resolution:

INJUNCTIONS

"We declare for such an amendment of the statutes of procedure in the Federal courts with respect to the use of the writ of injunction as will, on the one hand, prevent the summary issue of such orders without proper consideration, and, on the other, will preserve undiminished the power of the courts to enforce their process, to the end that justice may be done at all times and to all parties."

A great many of the delegates were opposed to any resolution on the subject, regarding it as an attack upon the courts; but finally, as a compromise, the following resolution was adopted in the platform:

COURT PROCEDURE

"The Republican party will uphold at all times the authority and integrity of the courts, State and Federal, and will ever insist that their powers to enforce their process and to protect life, liberty, and property shall be preserved inviolate. We believe, however, that the rules of procedure in the Federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute, and that no injunction or temporary restraining order should be issued without notice, except where irreparable injury would result from delay, in which case a speedy hearing thereafter should be granted."

It will be observed that the Republican Convention declined to take away the power to issue temporary restraining orders without notice, but preferred to hedge the power about with a statutory declaration of the instances in which they might issue, and offered an opportunity for limiting their life or duration by statute to such a short time as would necessitate a hearing within a few days. In this respect the convention did not go as far as Mr. Roosevelt and I were willing to go. Mr. Gompers and his associates expressed dissatisfaction with the action of the Republican Convention, and then went to Denver, where, after the fullest discussion, the resolution which was adopted read as follows:

LABOR AND INJUNCTIONS

"The courts of justice are the bulwark of our liberties, and we yield to none in our purpose to maintain their dignity. Our party has given to the Bench a long line of distinguished judges, who have added to the respect and confidence in which this department must be jealously maintained. We resent the attempt of the Republican party to raise a false issue respecting the judiciary. It is an unjust reflection upon a great body of our citizens to assume that they lack respect for the courts.

"It is the function of the courts to interpret the laws which the people create, and if the laws appear to work economic, social, or political injustice, it is our duty to change them. The only basis upon which the integrity of our courts can stand is that of unswerving justice and protection of life, personal liberty, and property. If judicial processes may be abused, we should guard them against abuse.

"Experience has proved the necessity of a modification of the present law relating to injunctions, and we reiterate the pledge of our National platforms of 1896 and 1904 in favor of the measure which passed the United States Senate in 1896, but which a Republican Congress has ever since refused to enact, relating to contempts [sic] in Federal courts and providing for trial by jury in cases of indirect contempt.

"Questions of judicial practice have arisen especially in connection with industrial disputes. We deem that the parties to all judicial proceedings should be treated with rigid impartiality, and that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved."

I have been informed that the resolution was drafted by Mr. Gompers and was passed exactly as drafted.

In one of Mr. Roosevelt's letters written during the campaign, he invited attention to an article published by Mr. Gompers in the American Federationist in defense of what he had done in supporting the Democratic candidate, and pointed out that in that article Mr. Gompers said, or plainly intimated, that Mr. Bryan was in complete accord with the attitude taken by the American Federation of Labor before the last two Congresses, and that this necessarily involved not only the abolition of the use of the injunction in labor disputes where only the business of the plaintiff was to be injured, but also the legalizing of the secondary boycott.

Neither Mr. Gompers nor Mr. Bryan ever attempted to answer the query put by Mr. Roosevelt as to whether this statement was true. Read in the light of this explanation, we can see what the resolution of the Denver Convention was intended to mean. The key necessary to understand the resolution was the principle of equity procedure advanced by Mr. Gompers and his legal counsel, that the right of a man to pursue a lawful business is not a property or pecuniary right which a court of equity would ever, according to proper rules of its procedure, issue an injunction to protect. The question has been distinctly passed upon by dozens of courts, and Mr. Gompers's proposition has not received the slightest support except in one dissenting opinion.

The instances in which courts of equity, both in England and in this country, have issued injunctions to protect business rights are so many as to be overwhelming. But assuming Mr. Gompers's proposition of law to be correct, namely, that no injunction could ever issue merely to protect the rights of business, as distinguished from property rights, then the meaning of the resolution of the Democratic platform becomes clear. It resolves that injunctions ought not to issue in labor disputes under any circumstances except those in which they would issue in other disputes, and as, according to Mr. Gompers, they would never issue in other disputes to protect business rights, they ought to be prohibited from being issued to protect a man's business in labor disputes.

A boycott is ordinarily not directed toward anything but a man's business. It is intended to injure his business and is well adapted to do so. If, therefore, by the resolution as interpreted above, all injuries to business and confined to business alone, and not reaching to rights in material property, were excluded, it would have the effect of limiting the recourse of one injured by a boycott to the inadequate remedy of a suit for damages, and thus in an indirect way the object of the American Federation of Labor in the Pearre Bill would be accomplished.

There was another and a very important issue in respect to which the Democratic platform by its expressed declaration and the Republican platform by its silence left no doubt, and that was the question whether in punishments for contempt in all classes of cases, except those committed in the presence of the court, punishment should not be inflicted by the court until after a conviction in a trial by jury.

I have thus defined certain so-called labour issues of the campaign, in order that the relevancy of my decisions may become apparent. At the risk of being tedious, I shall attempt to state shortly what those decisions were.

The first one was rendered by me when I was a judge of the Superior Court of Cincinnati, a State court of general jurisdiction, where I sat under appointment and subsequent election for three years. The case was a suit for damages by Moores & Company, lime-dealers, against the Bricklayers' Union of Cincinnati.

The undisputed facts shown were these: Parker Brothers were a firm of boss bricklayers. They had quarreled with a Bricklayers' Union. The Bricklayers' Union had withdrawn its members from the employ of Parker Brothers and had declared a strike against the firm, and had threatened all material-men that it would boycott any one of them who furnished material to Parker Brothers. Moores & Company were lime-dealers and sold Parker Brothers lime for cash. This was discovered by a walking delegate of the Union, and a boycott was declared against Moores & Company, who were thereby prevented from enjoying the profit of a number of valuable contracts, and whose business suffered severely in other ways.

I sat as the trial judge, and charged the jury that upon this state of fact Moores & Company were entitled to recover as damages the loss that had been inflicted by the boycott of the Bricklayers' Union. The jury immediately returned a verdict for $2,500. A motion for a new trial was made, and I reserved the motion, as I had the power to do, to the general term of the Superior Court for the consideration of three judges, including myself, and there I delivered the opinion of the court, and in this opinion, which was an elaborate one, I attempted to explain what was the illegality of a boycott. If I were writing the opinion again, I should hope to make it shorter. As between two persons, when one refuses to deal with the other and thus injures the other, no unlawful injury is committed if he is not under special contract to do the thing that he refuses to do. It is what in law is called damnum absque injuria.

A body of workmen are dissatisfied with the terms of their employment. They seek to compel their employer to come to their terms by striking. They may legally do so. The loss and inconvenience he suffers he can not complain of. But when they seek to compel third persons, who have no quarrel with their employer, to withdraw from all association with him by threats that unless such third persons do so the workmen will inflict similar injury on such third persons, the combination is oppressive, involves duress, and if injury results, it is actionable. It is true that the result of the rule is that an act is actionable or not as the intent with which it is done varies. This is not frequent in civil injuries, but it is not unknown.

This I understand to be the view of the Anthracite Coal Commission, of which Judge Gray of the Third Circuit was certainly the most conspicuous lawyer member, and I think that it is a safe rule of distinction in all labor controversies. Such a view does not render illegal the union of all members of a trades union, whether employees of the particular employer or not, to withdraw from association with him. It permits them thus to express their sympathy with their fellows. But it docs forbid them, by threatening men who otherwise would be entirely willing to associate with their former employer, to compel that third person to join them in the fight.

The decision in Moores & Company against the Bricklayers' Union sustained the verdict and gave judgment against the Union. The Union took the case to the Supreme Court of Ohio, where it was affirmed without opinion. The decision was won in a local court and did not attract any immediate attention. Subsequently the fact that the reasoning was quite elaborate and the citation and consideration of authorities extended, elicited considerable reference to it in other decisions, and in the discussions of a naturally interesting subject in legal periodicals, and at bar association meetings; but it did not arouse labor-unions to resolutions of protest, so far as I can recollect.

The next case was one that attracted far greater attention because of the prominence of one of the parties, and the very large body of men more or less indirectly interested in the issues. I had then become United States Circuit Judge for the Sixth Judicial Circuit. The Toledo & Ann Arbor Railroad was a railroad running from Michigan to Toledo, Ohio, where it made connections with six different railroads. It had had a controversy with its locomotive engineers as to their wages, and through Mr. Arthur, who was the Grand Chief of the Brotherhood of Locomotive Engineers, a strike had been declared against that railroad.

The Brotherhood had a secret rule (No. 12) which provided that it was a violation of obligation for any member of the Brotherhood engaged with a connecting line to haul the cars of a railroad company against which a strike had been approved by the Grand Chief. The six railroads who were made parties defendant to this action had been notified by their engineers that they probably must refuse to haul the cars of the Toledo & Ann Arbor road. This had come to the knowledge of the Toledo & Ann Arbor Railroad Company, and it accordingly filed a bill in equity in the United States Court at Toledo, asking that the six railroads be compelled to haul the cars of the Toledo & Ann Arbor Railroad, on the ground that this was their specific duty under the Interstate Commerce Law, which imposed a fine and penalty upon all officers, employees, and servants of any road engaged in interstate commerce who should refuse to perform it.

Judge Ricks accordingly issued a temporary restraining order against all the defendant railroad companies, their officers and employees, and had the injunctive process served on all the locomotive engineers. After this injunction was issued, Mr. Arthur, the Grand Chief, sent a telegram to the engineers of the Lake Shore, advising them that he had approved the strike against the Toledo & Ann Arbor Railroad, and inviting their attention to the laws of the order, including secret Rule No. 12, and directing them to act accordingly. A supplemental petition was then filed in the same cause, and I was applied to, as circuit judge, to enjoin Mr. Arthur by mandatory injunction to withdraw his order to the engineers of the Lake Shore road. I issued without notice a temporary mandatory restraining order, requiring Mr. Arthur to withdraw his telegram until the case could be heard. Mr. Arthur obeyed the order. The case was promptly heard in the course of a day or two at Toledo.

Meantime one of the engineers who had received notice of the injunction on the Lake Shore road, an engineer named Lennon, had refused to haul the cars of the Toledo & Ann Arbor road. He was brought before Judge Ricks on an attachment for contempt of the order. The two causes were heard the same day in Toledo. My recollection is that I did not sit in the Lennon case, and that Judge Ricks did not sit in the Arthur case.

The result of the Lennon case was that Judge Ricks sentenced Lennon to confinement for thirty days for contempt. After a release by writ of habeas corpus to test the legality of Lennon's confinement was denied by Judge Ricks, an appeal was taken to the Court of Appeals at Cincinnati, and thence to the Supreme Court of the United States, and the confinement of Lennon was held to be legal.

In the Arthur case I made the temporary order of injunction permanent and wrote an opinion giving my reasons. No appeal was taken from this ruling in the Arthur case, although a direct appeal on the merits lay to the Court of Appeals and thence by certiorari to the Supreme Court of the United States. What I decided in the Arthur case was this: That the Toledo & Ann Arbor road had a right under the Interstate Commerce Law to have its cars hauled by the Lake Shore road, and that a conspiracy by the servants of the Lake Shore company to compel it to decline to perform that duty in order that they might injure the Toledo & Ann Arbor road, thus involving the Lake Shore company in a controversy in which it had no interest and in which it was an unwilling participant, was a secondary boycott at common law. I also held that this was unlawful under the statutes of the United States, and injuries arising therefrom were of such a recurrent character and the loss was so difficult to estimate, that a suit at law offered no adequate remedy, and therefore a court of equity would prevent the injury by injunction.

It will be observed that Judge Ricks in his decision had held that Lennon as an engineer of the Lake Shore road had violated the injunction requiring him to haul the cars of the Toledo & Ann Arbor road, and that I had by mandatory injunction directed Arthur to withdraw his telegram directing all engineers of the Lake Shore road to do that which Lennon had done; the point being, not that Lennon and the engineers of the Lake Shore road could not leave the employ of the Lake Shore road freely and without restraint by injunction, but only that as long as they remained in the employ of the Lake Shore company they were pro tanto the company itself and burdened with the duties of the company and must obey the injunctions that would lie against the company itself. In no decision was it affirmed that an injunction could compel a man to remain in the service against his will, or that in any labor dispute could a man in the employ of another be enjoined from striking.

Though this distinction was made clear in both decisions, it was generally reported, and believed by many who did not look into it, that we had enjoined men from striking and had punished them in contempt proceedings for exercising the right to strike. It is easy to see, therefore, how it was possible for members of the Brotherhood of Engineers and of labor organizations generally to believe that a blow had been struck at organized labor from which it could never recover, and that the instrumentality of the strike, which in the last resort is the chief weapon that the laboring man has to secure better wages and better terms of employment, had been taken away. Judge Ricks and I were denounced from one end of this country to the other, in resolutions of labor organizations and kindred associations, as enemies of labor who had sought by judicial process to subject the workingman as a slave to the complete control of his employer. As a matter of fact, I had laid down, not only in the Moores case but in the Arthur case, the principles upon which the success of labor organizations must always depend, and upon which in the last ten years they have grown to their very great proportions and increased in their very great usefulness.

These principles were stated in a somewhat more specific way in the Phelan case, to which I shall presently refer, and from which I shall quote.

I was attacked further, and this attack was heard in the late campaign, on the ground that I had denounced the Brotherhood of Locomotive Engineers as a criminal conspiracy against the laws of the United States. What I did in the opinion was to point out the fact that secret Rule No. 12, if enforced, would involve all those engaged in its enforcement, both those who actually took part in it and those who ordered it, in a criminal conspiracy against the laws of the United States. I did so in these words:

"We have thus considered with some care the criminal character of Rule 12 and its enforcement, not only because, as will presently be seen, it assists in determining the civil liabilities that grow out of them, but also because we wish to make plain, if we can, to the intelligent and generally law-abiding men who compose the Brotherhood of Locomotive Engineers, as well as to their usually conservative chief officer, what we can not believe they appreciate, that, notwithstanding their perfect organization, and their charitable, temperance, and other elevating and most useful purposes, the existence and enforcement of Rule 12, under their organic law, make the whole Brotherhood a criminal conspiracy against the laws of their country."

The effect of that admonition, which was intended to be kindly, and it seems to me was couched in a perfectly friendly tone, was to lead the Brotherhood to repeal Rule No. 12; and I understand now that all the railroad labor organizations, which are among the best conducted of trades unions in the country, deprecate the use of the boycott as a weapon in labor controversies.

The third reported decision for which I was attacked in the late campaign was what was known as the Phelan case. It was presented as a phase of the Debs insurrection.

Debs was the president of the American Railway Union, a labor association organized as a rival of the older railway brotherhoods. Soon after the organization was complete, Debs, as president of the directors of the association, became interested in the question whether the Pullman Company, manufacturing Pullman cars near Chicago, paid their employees sufficient wages. It was decided that the wages were not sufficient. The employees were induced to strike, and then it was sought by the American Railway Union to compel the Pullman Company to pay higher wages by threatening a universal boycott against all the railroads of the country that had contracts with the Pullman Company for the use of the Pullman cars, and to compel them to withdraw from or break these contracts and to discontinue the use of the Pullman cars.

Although this was the original purpose, it degenerated into an attempt to tie up every railroad in the country by withdrawing all the railway employees from railroad work without regard to whether the railroads had business for the Pullman Company or not. In other words, it became a boycott against the public in an attempt to make the public compel the Pullman Company to raise the wages it paid its employees, although the public had no relation to the Pullman Company, which was a private corporation doing a private business, so far as its manufacturing of cars was concerned, and had no power over the question of the amount of wages to be paid by it to those whom it employed.

In pursuance of this plan, Debs sent Phelan to Cincinnati to tie up all the railroads in that city, and among others was the Cincinnati, New Orleans & Texas Pacific Railway Company, which operated as a lessee the Cincinnati Southern Railroad, and which for the time being was in the hands of the court in charge of Mr. Felton, receiver. I was the circuit judge, resident in Cincinnati, who had appointed the receiver, and was conducting the affairs so far as the court had to interfere in that receivership.

The receiver filed a petition in the proceeding, asking an attachment of Phelan for contempt of court. The petition charged that Phelan was attempting to prevent the receiver from carrying out the order of the court directing him to run the road and was advising all those who had left the employ of the receiver, and others, to use violence in compelling the receiver's employees to leave his employment; that in consequence the receiver was obliged to hire constables to protect his men.

Phelan was brought in on a warrant, and was served with an injunction to prevent his continuing in that which he was already charged to have done, and the cause was set for a trial at his convenience. It was promptly heard, and a week was consumed in the trial. At the end of that time I found Phelan guilty of contempt of court, and sentenced him to six months in the Lebanon jail. His actions after the injunction was served on him were exactly what they had been before, and he conducted himself avowedly and flagrantly in violation of the court's orders. In this case, as in the others, I pointed out, with all the clearness of which I was capable, the distinction between the strike and the boycott, and perhaps more fully than in previous cases explained what were the rights and responsibilities of the trades unions engaged in a controversy with an employer. In this case I said:

"Now, it may be conceded in the outset that the employees of the receiver had the right to organize into or join a labor union which should take joint action as to their terms of employment. It is of benefit to them and to the public that laborers should unite in their common interest and for lawful purposes. They have labor to sell. If they stand together, they are often able, all of them, to command better prices for their labor than when dealing singly with rich employers, because the necessities of the single employee may compel him to accept any terms offered him. The accumulation of a fund for the support of those who feel that the wages offered are below market prices is one of the legitimate objects of such an organization. They have the right to appoint officers who shall advise them as to the course to be taken by them in their relations with their employer. They may unite with other unions. The officers they appoint, or any other person to whom they choose to listen, may advise them as to the proper course to be taken by them in regard to their employment, or, if they choose to repose such authority in any one, may order them, on pain of expulsion from their union, peaceably to leave the employ of their employer because any of the terms of their employment are unsatisfactory."

In the Arthur case it was brought out quite distinctly that while employees who struck for an unlawful purpose could not be enjoined from doing so, because to enjoin them would be to compel the specific performance of a contract of service, in violation of the Thirteenth Amendment against involuntary servitude, it was left open as an undecided question whether men who were inciting employees to quit their employer in violation of some legal duty might not be restrained from doing so; and in the Phelan case, the effect of the decision was to hold that where one was inciting employees to quit in pursuance of an unlawful boycott, he could be enjoined, although the employees could not be.

There was one other case — indeed, there may have been more, though I do not recollect them — in which I issued an injunction growing out of a labor dispute and in which I punished men for a violation of the order of the injunction. A number of miners on the Ohio side of the Ohio River combined together in a conspiracy to prevent the importation into Ohio of West Virginia coal, and every time that a train of one of the West Virginia railroads was delivered to the Ohio railroad, the miners jumped upon the train and by physical force prevented the further transportation of the coal.

The Baltimore & Ohio road, which was the West Virginia road, brought suit against the Cleveland, Lorain & Wheeling to compel the Cleveland, Lorain & Wheeling to take its cars and transport them, and then it was made to appear by the Baltimore & Ohio that certain defendants, who were named, had conspired to prevent the Baltimore & Ohio from securing transportation over the Cleveland, Lorain & Wheeling.

I issued a mandatory injunction against the Cleveland, Lorain & Wheeling compelling it to receive and transport the cars, and named as defendants to the action a number of the Ohio miners engaged in the conspiracy. They were duly served, and, after a full notice, were brought into court. They did not deny their guilt, and I sentenced them to six months in jail. It was a case of blockade of interstate commerce by force, and it was only by the decree of an equity court that the passage of coal from one State to another was made free and uninterrupted. There was no report of the opinion in this case, which presented questions similar to those in the Arthur case. When I reached Wheeling in the campaign, I was confronted by the exploitation of this case in the local paper, and explained it as I have explained it here.

With this record of decisions in labor cases, in which I have had each time to decide against the labor organizations, or the cause with which they sympathized, I had always been of opinion that it would be utterly impossible for me to run for office before the people even if I desired to do so. My ambition was not political. I desired if possible to resume my work on the Bench, and the disqualification which these decisions seemed to me to make clear and certain did not really involve in my judgment any sacrifice on my part. I think it fell to my lot to take part in more cases of this kind than most judges, and had I had political ambition. it might have been regarded as a misfortune.

The attacks made upon me in labor circles and by labor journals did not particularly trouble me, because I thought that in the course of time it would appear that what I had decided was clearly the law. and that the principles that I had laid down were those upon which trades unions properly conducted would thrive and attain their greatest usefulness.

The decision of the Supreme Court in the Debs case, in an opinion by Mr. Justice Brewer, removed all doubt, if any had before existed, as to the right of a court of equity to issue an injunction in such cases, and I don't think that in any respectable court it is now disputed. But the effect of Mr. Gompers's action and that of the Democratic party in its platform was to appeal, so to speak, from the decision of the court to the decision of the electorate. They had done this once before in appealing against the decision of the Supreme Court in the Debs case, which was characterized in the platforms of 1896 and of 1900 as government by injunction, but the appeals apparently had not met with great success.

They were now able, however, to appeal in a more concrete way to the people, by asking them to vote against the candidate who was as much responsible for the enunciation of the principles that they contended against as any judge on the Bench. I was characterized as the "father of injunctions." This attributed to me something that I did not deserve, for injunctions had already been issued in labor disputes by Vice-Chancellor Malins in England; by the Supreme Judicial Court of Massachusetts in the case of Sherry vs. Perkins; by Judge Sage in the case of Casey vs. Typographical Union; by Judge Beatty in the Coeur d'Alene strike troubles, and by other judges.

It had fallen to my lot, because of the number of cases that I had subsequently to consider, to write rather more elaborate opinions on the subject and perhaps state the principles more at length than other judges, but I was not entitled to either the credit or discredit of having introduced a new equity jurisdiction in labor troubles. There was no new jurisdiction. It was merely an application of plain equity principles to novel situations. The character of the injury in cases of boycott when business is injured is such that it is impossible to estimate what the injury is. This is palpable. Moreover, the injury is a result of a series of acts combined together, each one of which would not justify a suit for damages, but all of which taken together with their recurrent effect bring about the injury which can only be remedied adequately by an injunction to prevent the carrying out of the combination. This has always justified the issuing of an injunction in equity, and its use is not an enlargement of equity jurisdiction but a mere application of the oldest and most well-known principles.

Viewing as I did the effect on my political attitude of these decisions, it may well be supposed that I was surprised when I discovered the strength that I had developed in the Republican Convention, and found that the opposition to me on the ground of my labor decisions, although sufficiently elaborated, did not lose for me a great many votes among the delegates; but while this was the result in the Convention, there was very great reason to believe that the objection to me as a candidate was much more formidable. Mr. Gompers, through the American Federation of Labor, used all the machinery that that association afforded to secure votes for Mr. Bryan against me, and I constantly received most discouraging reports of the defection in the ranks of labor because of my injunction decisions. This was particularly noticeable among the railway employees who remembered the fact that I had enjoined Arthur, and carried in their memories, though indistinctly, the attacks that had been made upon me at the time of that decision as a judge determined to strike down labor organizations. As the injunction had been directed toward the chief of the most conservative, useful, and powerful brotherhood, that of the locomotive engineers, it was not unnatural that it should have been remembered and cherished.

I was very reluctant to go on the stump and discuss my own decisions. I knew no precedent for it, and I felt that if the decisions themselves did not support the conclusions reached, there was little use in my attempting to supply additional explanation or defense. I found, however, that Mr. Bryan was constantly referring to me as the father of injunctions, and that the Democratic managers were making as much of this part of the issues of the campaign as possible, and I concluded, therefore, that the only thing for me to do was to seek an opportunity to tell what I had decided to audiences composed as largely of labor men as possible, and then leave it to their sense of justice whether the attacks upon me as an enemy of labor were justified.

The first speech I made upon it was rather unpremeditated; it was given at Athens, Ohio, before a lot of miners who were trades unionists. I don't know how the speech impressed the audience other than by the way in which it was received. My friends who heard it commended its presentation and urged that I seek other opportunities to deal with the same subject. A large meeting of railway employees was organized in Chicago by a friendly club, at Orchestra Hall. There for the first time I went over in full my labor decisions. I shook hands afterward with every one of the audience, and I am quite certain that my treatment of the subject met with the approval of those who were present and induced them to believe what I contended was the fact, and believe now to be the fact, that of all judges who had had occasion to consider the question, I had laid down the law as favorably as possible for the lawful and useful organization of trades unions. I was careful to state that I did not apologize in any way for the decisions that I had rendered, and I only sought the opportunity to state what the decisions were and their effect, in order to enable my hearers to judge whether I was the man against whom they should cast their ballots.

I had similar meetings in Minneapolis, South Omaha, Lorain, East St. Louis, Kansas City, East Cleveland, and at Cooper Union in New York. I was able to point out that although the brotherhoods had attacked my decision against Arthur, later on, in a labor controversy which got into court in St. Louis between the brotherhoods and the Missouri Pacific road, my decisions in the Arthur case and in the Phelan case had been successfully cited as authorities upon which Judge Adams modified the injunction already issued in such a way as to enable the brotherhoods to win the strike and secure a betterment of the conditions of employment with that company. I was also able to point out to the brotherhoods that in the Phelan case in sentencing Phelan, I was merely sentencing a man who had done everything that he possibly could to incite his followers to violence against the members of the old brotherhoods who had declined to follow Debs and who stuck to the cabs of their engines in faithful service of the receiver.

It is impossible, of course, to tell which of the many reasons that enter into the decision of an electorate is most influential. It is very certain that Mr. Gompers was not able to carry with him his followers in the American Federation of Labor; the two million votes that he claimed were controlled by that organization. It is very clear that in the large cities the labor vote did not go in unusual numbers to Mr. Bryan as against me. In Greater New York, in Boston, in Philadelphia, in Baltimore, in Cleveland, in Cincinnati, in Chicago, in St. Louis, and in San Francisco I received certainly a full party vote and in many of them a very much larger vote than the party vote, and in those States the Federation of Labor is stronger than in any other parts of the country.

I am, of course, not blind to the fact that one of the chief arguments in my favor with the wage-earner in this campaign was the fear that the election of Mr. Bryan would make the hard times permanent, and the hope that the continuance of the Republican party in power would insure a return of good times. This argument doubtless neutralized the one directed against me as a man unfair to labor; and there were probably a number of men who voted for me without approving me, because while they liked Mr. Bryan's attitude in the injunction matter, they preferred to give victory to that side which was likely to insure steadier work and better wages. Still, I think, in spite of all this, it must be conceded that the showing made by Mr. Gompers upon the issue against me as an enemy of labor was considerably less than he expected it to be, and that this was due in part at least to the fact that no one can control the vote of the intelligent laboring man; that he does not yield to mere sentiment or the calling of names, but that he himself investigates the reasons and makes up an independent mind.

I did not hesitate to meet the issue on the question of a trial by jury in contempt cases. I attempted to point out the dreadful weakening of the power of the court that would ensue if every order to be performed outside of the presence of the court might be violated and no punishment ensue except after a trial by jury. I think I showed that the result of such a change in the law would be to put the means of evading decrees of the court of equity into the hands of the wealthy and unscrupulous, and that it would work but little benefit to the poor and needy wage-earner. The appeal made to the farmer, merchant, business man, and the public at large, including the intelligent wage-earner, against the weakening of the power of the court, in the interest of a particular class, was, if one can judge from the attitude of the audiences addressed, as strong a vote-getting argument as the Republican party had in the late campaign. Certainly it was next in force and persuasiveness to that based on a prospective restoration of good times in a Republican victory.