|Excerpts from Testimony before the
Committee on the Judiciary of the
U.S. House of Representatives
Wednesday, March 14, 1906.
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The committee reconvened pursuant to adjournment. Hon. Charles E. Littlefield (acting chairman) in the chair.
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Mr. Gompers. . . I want to say at this time that the representatives of labor appearing for and advocating the enactment of an anti-injunction bill, and an effective one--I want it to be clearly understood--neither directly nor indirectly nor remotely aim to attack the writ of injunction as a writ. We recognize its importance and its value and efficiency and appropriateness and effectiveness within the limits of its original purpose, and that is to protect property rights when there is no other remedy at law.
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. . . I commend to the attention of the members of the committee the injunctions that are incorporated in the report already printed, and to which I have referred, and I want to say that the subsequent injunctions that have been issued by both Federal and State courts have simply gone step by step, reaching to greater lengths, and dealing with things that are the most ordinary affairs of man. Trespass, unlawful acts, criminal acts; no one can defend them and claim honest citizenship in our country.
But the doing, as I say, of the most ordinary things that men do in their everyday lives are more and more coming to be touched upon by injunctions. One injunction was issued--or, rather, many injunctions were issued--prohibiting persuasion, and not even designating what kind of persuasion. We can understand that there is such a thing as persuasion glibly used by the tongue and a club held in the hand; and no one can at all justify such persuasion as that. But even so, in such a case the injunction should not lie, because such an attempt is a threatened assault upon the person, for which there is a law to prevent, to apprehend, to try, and to convict and to punish. But there is a persuasion--that persuasion which is commonly understood in our language--which no man can deny the right to exercise by another.
And then comes the inhibition of a man or a number of men from weaning away from an employer those who are in his employ. "Weaning away!" Is there any unlawful conduct if you, in your own interest, can wean away from me a man employed by me? Weaning away from me a man who is valuable to me in my business. By what? By bribes? By payment of money? By promises of reward, by advancement, by advantage? Is not that your right? If it is your right, is it not mine?
Take a case in point. A strike occurs. Men leave the employment of a certain firm because they ask for a high wage, or protest against a cutting of their wage, and another man or men take the places made vacant by the strikers. The strikers, having had experience, have accumulated certain funds, and they approach the men who have taken their places, and say to them, "John," or "Gentlemen," or "Men, you are taking our places. You have taken our places, and you are doing yourselves as well as us an injury, for if we are defeated in our effort the wages will be reduced and stay reduced, or our effort to increase wages will not succeed, and you will have been the instruments to our defeat and to your own defeat and disadvantage.
"Come with us. Make common cause with us. We have accumulated funds, and we will pay you from what we receive from our associated efforts and our accumulated funds, either as much as you can earn, as much as we get, or we will pay you more than what you are now earning; quit the employment of that firm, and by reason of our common concert of action make that impression upon the firm that it will be required to yield and to withdraw the offer of the reduction of wages, or to concede the increase."
I hold that the workmen have the right to go to any workmen employed by anybody, whether in a strike-bound establishment or otherwise, and if such a workman has no legal contract with his employer, and it would not violate the terms of a contract, the associated workmen have the legal right to offer this man to quit his employment and go to work with them in some other establishment, or not to work at all, for the time being. They have the right to "lure away" and "wean away" from an employer a workman, and to offer him money inducements, so that he may quit that employment and work for another, or to go idle for a period, in order that a certain lawful, honorable purpose may be achieved. And yet the injunction is issued against workmen for doing that very thing; and for doing it after the injunction has been issued they have been sent to jail.
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Mr. Littlefield. Have injunctions in that special particular to which you have just referred been sustained by the court of last resort, so that it may now be well said, so far as either side of the controversy is concerned, it has been finally determined as part of our jurisprudence that an injunction such as you have mentioned would be sustained?
Mr. Gompers. The fact is that there are few of these cases of injunction that are brought to the court of last resort.
Mr. Littlefield. In this special particular?
Mr. Gompers. No, sir; there is not.
Mr. Littlefield. So that the court of last resort has not yet determined that an injunction could be lawfully sustained under circumstances such as you have just described?
Mr. Gompers. Yes sir; they have not.
Mr. Littlefield. Your proposition, as I understand it, is that in the inferior courts--the Federal and circuit courts--these injunctions have to a greater or less extent been issued including the proposition that you have just referred to?
Mr. Gompers. Yes, sir; and it has become quite general.
Mr. Littlefield. Yes.
Mr. Gompers. And it brings to my mind the statement made before this committee this morning that there are but a few of these cases in which a judge has gone too far. I think there are more than a few when even our opponents agree that some of the courts have gone too far.
Mr. Littlefield. I suppose that would be true of any kind of a question that courts undertake to decide. They are open to error.
Mr. Gompers. Yes, sir. And our contention is that there has not been one injunction that was issued that is not in contravention of fundamental rights.
Mr. Littlefield. Then you take the ground that they have not any power to issue injunctions anyway?
Mr. Gompers. Yes, sir.
Mr. Littlefield. That goes to the root of the whole matter.
Mr. Gompers. That is what we are trying to aim at.
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. . . We hold that the issuance of an injunction is an extraordinary remedy which is to be resorted to only when the end to be reached can be obtained by no other legal process.
That there is a legal remedy for the things which an injunction can enjoin goes without saying, but it is the purpose of the opponents of our legislation on this subject to get rid of the trial by jury in the regular process of the law. Their purpose is to make the judge who issues the injunction both the judge, the jury, and the executioner, and, indeed, to take away from the workman enjoined the constitutional right of being tried before a jury of his peers for any crime or unlawful offense with which he may be charged.
Mr. Littlefield. Do you go so far as to contend that the courts have not any fundamental power or rightful power to issue an injunction to restrain an unlawful act, distinguished from a criminal act?
Mr. Gompers. I say --
Mr. Littlefield. I suppose that you recognize that there is a distinction and there may be many acts which may be unlawful without being criminal. Does your proposition go as far as that?
Mr. Gompers. So long as it involves personal liberty; yes, sir.
Mr. Littlefield. Of course, as the result of an action of tort a man's personal liberty may be restrained. A man might be arrested.
Mr. Gompers. Where it is affecting property I am in entire accord with the best conception of the writ of injunction; but when it involves personal liberty, the freedom and the exercise of lawful rights guaranteed to the citizen, then we hold that under no circumstances should the writ of injunction apply; and, further, it does not apply except to workmen when engaged in a dispute with employers.
Mr. Littlefield. I do not know as I quite get your distinction. As I understand the writ of injunction anybody who violates that order of court is guilty of contempt, and his personal liberty is quite likely to be restrained. I think that applies to all injunctions.
Under what circumstances do you conceive it is proper for a court to issue an injunction in the case of an unlawful act in any instance? Or do you hold that wherever the act is unlawful it should not be used? If you concede that the writ of injunction is a proper writ, under what circumstances, according to your conception, can it be properly used? Any issuing of the writ, if it is violated, is bound to be followed by the same consequences as follow its issuing in the case of a labor controversy; that is, as to the results of it. The reason of its issue may be different.
Mr. Gompers. But the fact is that in all other instances the personal constitutional liberty, the personal liberty of the person enjoined, is not involved in the issuance of those injunctions outside of a labor dispute.
Mr. Littlefield. You mean in its origin, I take it?
Mr. Gompers. And practice.
Mr. Littlefield. Let me illustrate. I want to get your idea of the legal proposition. Suppose an injunction is issued to restrain a plaintiff from prosecuting an action at law; that is, from initiating a proceeding, as is often done. Now, if he brings his action, he is in contempt, and exactly the same kind of contempt that a labor organization or a laboring man would be in if he or they saw fit to go on and violate a writ of injunction. He gets the same consequences exactly.
He may be imprisoned or fined exactly as the wage-earner may be. The origin of the injunction, of course, is different. It is not a crime to prosecute an action at law. But the wage-earner may be enjoined because he may be about to commit a crime. The consequence is the same if he violates it. Your proposition, as I understand it, is this--I do not want to disturb you in your argument, but I do want to get a clear comprehension of your idea--you say that the origin may be different; but the circumstances under which the punishment is inflicted is where you make your distinction, is it not?
Mr. Gompers. I think your question is a very long one, and I can not be circumscribed by a definite answer--yes or no.
Mr. Littlefield. Certainly; you are at perfect liberty to answer as you choose. I desire to have you go right along and put your proposition in your own way, but I wanted to get in my mind what your legal proposition was. But if I disturb you, I will not put the question.
Mr. Gompers. You do not disturb me, sir; but the question is a very long one. I will try to answer it. I tried to keep up with you in my mind and to understand the proposition that you submit.
Mr. Littlefield. Yes.
Mr. Gompers. If a man undertakes or proposes to undertake to complain against another or to institute a suit against another, it is to obtain financial redress and restoration of property or to secure a mulcting of him in damages. The principle involved is a matter of property rights and does not involve his personal liberty. Even when the man who anticipates becoming a complainant in a case is enjoined by a court, the party at whose instance the injunction is obtained must put up a sufficient bond to indemnify the party enjoined that he will be fully insured against any injury resulting by reason of his being enjoined from proceeding as he desires. Now, I am not a lawyer, and I may not be able to contend with a distinguished lawyer, and I yield most humbly and as gracefully as I know how to the superior legal knowledge of the chairman. But there are certain things that have been ground both the right way and the wrong way in my make-up, and against them no legal training can shunt me off my track.
Mr. Littlefield. There is no desire to do that, and I do not think that you have the slightest trouble in explaining yourself and expressing yourself. I just wanted to get at the legal proposition--that is, from your point of view.
Mr. Gompers. This is a question involving property and property rights and not personal liberty, and it is the personal-liberty feature to which I am addressing myself.
Writs of injunction, in so far as they enjoin acts forbidden by law, are superfluous, erroneous, and unnecessary, and they have no function to perform. In so far as writs forbid acts which the law does not forbid, they are erroneous, and their future issuance should be prohibited by the enactment of our bill, H.R. 4445.
I want to say a word in regard to the Constitution. I am not a believer in that sort of politics to which the phrase has become associated, "What is the Constitution among friends?" because I think that while there has been too much of that sort of thing, yet I do believe, as I tried to indicate at a former hearing, that the Constitution of our country will become enlarged or narrowed in the same ratio that the people of our country show their earnestness and willingness and determination that their rights and their welfare be protected.
But it is not difficult to imagine that the Constitution is usually interpreted and enforced as the expression of the will of those who for the time being are in power. The opponents of our bill are not only opposed to it because it would accord to us equal rights with every other citizen of the country. They know that in opposing this bill they are standing for the inequality before the law of the wage-workers when engaged in any labor dispute. They are opposed even to the organizations of labor. They are opposed to the workingmen organizing. Why, in the hearings before the committee composed of your predecessors, upon the public platform, in their business meetings, in their official journals, in their speeches everywhere and anywhere it is the same thing.
They are opposed to everything for which the labor movement and the labor organizations stand. They are opposed to the collective bargaining; they are opposed to conciliation; they are opposed to the policy of arbitration. If you will examine the arguments made by the opponents of this bill, H.R. 4445, you will find the statement made that they are opposed to these things, and ask the American workman to stand as an individual and assert his rights and stand for what he can get, as if an individual workman can secure any recognition, any redress in a modern industrial plant, when the great industries of the country are concentrated, when wonderful plants, great machinery costing immense sums of money are required to operate the plants, and the workmen have lost their individuality as soon as they enter the plant and secure their employment, and can secure economic and social recognition only by the association of themselves with their fellows.
They say, "Yes; make your workmen in your unions better men. Make them benevolent societies." Yes; make them benevolent societies. And some of our friends would have no objection to make contributions toward them, and with every contribution made cut wages and increase the hours of labor.
Mr. Littlefield. A sort of a Standard Oil proposition?
Mr. Gompers. And not only that, but these railroad and other corporations and street railroads and these beneficent philanthropic employers, who introduce all this sort of things for the purpose of weaning away the workmen from the unions, with the knowledge that their isolation from their fellow-workmen who would otherwise consider the difficulties that affect them as workmen, and their interests, would fritter away their time in saying nice things of each other and patting the other employers upon the back and sounding in laudatory terms their philanthropy and good wishes to their workmen, while they, the employers, would be still cutting their wages further. They want a union of workmen to be patterned after the fashion that the Sultan of Turkey hires a man to take care of his harem.
The idea of an opponent of this bill declaring that the organizations of labor are destroying all liberty of contract between the employer and the employed! Imagine a man walking into one of the plants of the United States Steel Corporation and offering to make a contract with the company for his labor. Imagine a switchman or a maintenance-of-way man, a track man, going up to the superintendent of the Pennsylvania Railroad Company and asking him to enter into a contract between himself and the company regarding his labor, wages, and conditions of employment.
It is an insult to intelligent men to ask them to seriously consider such an argument against the organizations of labor and the purposes for which they stand. Higher wages? Yes; higher wages, surely. Who are more entitled to get a larger share out of the products of labor than the workingman--a larger share than they are now getting?
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We ask, Mr. Chairman, for nothing extraneous, nothing that is unjust or improper. We want no immunity from the law for any crimes or unlawful conduct of which any man in the labor movement may be guilty. I grant you that here and there some man may be gathered into the fold of a union of labor who, either from a perverted mind or for wrongs which he has suffered elsewhere or here, may do a thing which no man can defend, and which no union man will defend. But you must bear in mind that the organized workingmen of America have not always the choice of material. They have not always the choice of material.
The employers of labor, and particularly those who are usually hostile to the efforts of the workingmen to improve their condition, send their agents to any part of Europe, and scour the cities and the towns and the slums of these places, and bring over these people and bring them into the factories and mills and shops and roads and quarries and mines, and then employ them. We try to keep our unions of labor as nearly, as fully, within the bounds of reason and of law and of decency as it is possible, and we are doing effective work on those lines.
But we say to you, gentlemen, that if these men are good enough to be brought over into this country to live, if they are good enough to help the employer as against the effort of the American workmen to improve their condition, if they are good enough to be employed for the profit of the unscrupulous employer, they are good enough for us to try to organize them and make better men of them. No man can truthfully charge that a man because he becomes a member of a labor organization thereby becomes a lawless citizen, that he thereby becomes a lawless man.
I could show you, Mr. Chairman and gentlemen, and demonstrate it beyond question, that the unions of our country, including the unions represented by my good friend, Brother Fuller,1 publish either weekly or monthly official journals--magazines--many of which will compare favorably with and far surpass in excellence of real genuine human interest and knowledge many of the pretentious and popular magazines. They contain information of the highest character, of the most intense interest to men as both workmen and mechanics to improve their mechanical ability, to devote their time and thought to the study and solution of problems affecting their work and their employment, and pages upon pages of diagrams and problems and questions and answers in the common school teachings, of reading, writing, and arithmetic, of the higher studies, of history, of economics, sociology, trade, power, science, learning, literature, poetry, art--everything. And when men undertake to address this committee and say that the organizations of labor do not do these things, they say that either which they do not know, or, knowing, say that which is positively untrue.
Incidental to this movement of labor there is occasionally a conflict. No one will excuse it; no one will attempt to palliate it; but this movement of the working people of our time is the struggle of the discontented masses of labor with the conditions as they exist, and it is their protest against it, and they will find the lawful means to bring about the improvement in their condition to-day upon the economic field, upon the political field.
We ask you gentlemen to give us an effective anti-injunction bill before this Congress adjourns. The workingmen of the United States are impatient with this long and vain pleading, asking and petitioning for substantial relief from the grievances which exist, and which they know and feel, and they are determined to have it. We have been disappointed often. The Judiciary Committee of the House of Representatives has recommended the passage of the bill which I advocate--H.R. 4445. The House passed it once. The Senate rejected it. It has been insinuated that it is all very good; pass it in one House, and defeat it, kill it, in the other; smother it.
But whether that be so or not, I repeat, the American workingmen have grown impatient, and they are not less sensible to their own rights and power than are the workingmen of other countries. On the strength of their American citizenship and their devotion to the institutions of our country they demand recognition; they demand from Congress the heeding of their too long vain requests. If we shall be disappointed in this Congress, well, there will be other Congresses, and perhaps then we may have others who are more fairly inclined to the earnest requests of the workingmen of our country.
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U.S. Congress, House Committee on the Judiciary, Hearing . . . in Relation to Anti-Injunction and Restraining Orders, 59th Cong., 1st sess., 1906, pp. 6, 38, 41-50.