light of the moon." My friend from Philadelphia turns this beautiful eulogy into a suggestion that his decisions were pure moonshine. I do not like that exactly.

Hampton L. Carson, of Pennsylvania :

Mr. President: I certainly think that the gentleman from Maryland (Mr. Hinkley), if he understood me as saying that any of the decisions of Chief Justice Taney were mere moonshine, entirely misunderstood what I said, and it may be that, owing to the unfortunate echo in this hall, the word "moonlight" was misunderstood by Mr. Hinkley as moonshine. glad to find that a Maryland man comes to the rescue of a really great judge. I have the highest respect for Chief Justice Taney's memory, but I think Mr. Hinkley is in error in assuming that Mr. Wirt used that phrase with regard to Judge Taney's judicial qualities. It is absolutely impossible for Mr. Wirt to have been discussing Judge Taney as a Judge, because Mr. Wirt happened to die exactly eight years before Judge Taney went on the bench. Now, in regard to the accuracy of my quotation, I quoted the whole of it. I took it from Mr. John P. Kennedy's "Life of William Wirt," a book written of a Maryland man by a Maryland man, and I quoted the exact phrase. It was "a man of moonlight mind "—I appeal to your recollection of my quotation last evening

the moonlight of the Arctics with all the light of day without its glare;" and I used it as an illustration, not to the disparagement of Chief Justice Taney or his decisions, but for the purpose of pointing what seemed to me to be a substantial difference in the intellectual structure of the two greatest Chief Justices of the Supreme Court of the United States when I said that the vigor and the power of John Marshall communicated warmth and life and sunlight to our national jurisprudence, and that I thought that a review of the twentyeight years of the judicial career of Chief Justice Taney showed that his mind was critical rather than constructive, that it was the moonlight of the Arctics that shone upon our legislation, but that there was not the warmth or the life-giving

power of the sun which is discernible in John Marshall's judgOn that, gentlemen, I submit my case.

ments.

The President:

Gentlemen, is there any further discussion on Mr. Carson's paper? If not, the Association will proceed to consider the paper read by Mr. Allen, which was entitled "Injunction and Organized Labor."

Judson Starr, of Illinois :

Mr. President: The intense interest I have in the subject under discussion, so fitly presented here, not only in the immediate paper, but also in the paper of the president of this association, Judge Cooley, is the more lively because the interstate commerce law was largely the work of Senator Cullom, of Illinois; late events calling for relief have had special prominence in Illinois, and President Cleveland's recent appointment of a commission to inquire into those events includes an able fellow-townsman, Judge Worthington, of Peoria, Illinois, to whose favors in this matter, and those of Judge Anthony, president of the Illinois State Bar Association, I am much indebted. Mr. Debs was before this commission last Monday.

Differing from the sentiment of Mr. Allen's able paper, he there said it was the injunctions of the Federal Courts that had suppressed and ended the strike. The burden of his song now makes the greatest dissenting opinion recorded. It is that of organized labor to the courts, strongly asserted against proceedings involving injunctions. "There are errors, says Coleridge, "which no wise man will treat with rudeness, while there is a possibility that they may be the refraction of some great truth still below the horizon." In this spirit I hope to speak, excluding from the term organized labor those who live only to breathe, to burn and to steal. My contention is that legal procedure has made marked advance favorable to organized labor, and that injunction suits are effective, and themselves fairly show it.

I. The period of penal actions: From the trial of the Cordwainers of New York in 1810, spoken of by Mr. Allen

(the first fully reported case in this country), to the decision of Chief Justice Shaw of the Massachusetts Supreme Court in 1840 (reported in 4 Metc., 111), there is clear expression that the union of working men to raise wages was not wrong in itself. For half a century the latter decision has stood as the bulwark of organized labor. The court seemed to have studied the matter until he knew from Homer more than Homer knew." It is interesting, if not relevant, to note that the attorney for the union men in that case was Robert Rantoul, "whose name," said Wendell Phillips, deserves to rank with McIntosh and Romilly, with Bentham, Beccaria and Livingston" (New York's great gift to Louisiana), " and whose statue deserves a place in the Pantheon of the great jurists of the

world."

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De Tocqueville observes: "The great danger of a democracy is that unless guarded it merges into despotism." If any such infection came into the ranks of organized labor during this period, it did not come from the air of the court.

II. The advance from criminal to civil procedure: It is a great stride when the effective remedy for any wrong progresses from the vulture of criminal procedure to a safe refuge in civil procedure. In 1888, in the notable case of Patrick Sherry vs. Perkins, 147 Mass., 212, reported in the Legal News, at the instance of an individual plaintiff, an injunction is sustained against a boycotting union. Judge Beach, of N. Y. Supreme Court, this week, sustained the same principle. The brief of counsel in the Massachusetts case was exhaustive, plaintiff's name suggestive. Patrick feels that off its native heath the methods which so emphatically sent Captain Boycott to coventry need restraint. It is one of Col. Ingersoll's bright sayings that the world would be happier if health were catching instead of disease. The plaintiff here doubtless thought that laboi unions might be better if work were made as contagious as wages. In its general results, too, the granting of injunctions against unlawful acts is gain for the unions themselves. It would seem to follow from the principle on which the decision rests,

that if one union makes itself a nuisance to another, the offender may be enjoined. The mere thought that McBride's union might restrain Arthur's, Gompers both, Debs all three, and Sovereign's all, under such likely circumstances, is not without a suggestion of favor. Chicago, northwest, the storm center; Boston, northeast, the reform center. I think I may say this on the authority of Mr. Storey's splendid paper just read. Adopting the principle of this Boston case, one labor union in Chicago recently enjoined another.

III. The interstate commerce law: Cases arising under this law have educated the public as nothing else can. So much gained. Had their result been no more than the decision. rendered by Judge Taft, referred to by Mr. Allen in the Ann Arbor R. R. case against Arthur, that would mark an epoch. If Mr. Allen means what he says of that decision, it effectively answers his doubts as to the effectiveness and propriety of injunctions. Again, organized labor could fairly ask nothing more favorable than this language from Judge Taft's decision.

"Labor can lawfully combine to get as high a price as possible for its product, and on the best terms. The probable loss and inconvenience to the company (the employer), by withholding labor, would, under ordinary circumstances, be a legitimate means, availing to them for inducing a compliance with their demands." Who shall henceforth say that courts never began anything, that they are mere creatures, not creators? This decision fathered an insurrection of thought. Indeed, some charitable commentator on this Interstate Commerce Law and the present state of decisions under it may, a hundred years hence, indulge the thought that if the moving principle of courts of equity in these matters was the restraining of nuisances, it was strange that the law was not itself restrained.

IV. The denial of injunction to employers when first in fault: In 1893, one of the leading legal publications of what is latest and best, the Albany Law Journal, noting a recent decision, said: "Judge Barrett's recent action in summarily

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The

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refusing an injunction asked by the Clothing Manufacturers' Association to restrain the issue of a certain circular by the cutters, seems eminently judicious and wise. combined employers had resorted to probably unnecessary aggression against the combined garment workers, which condition of affairs should certainly have a material bearing where the peculiarly equitable relief of injunction is sought. The chances are that such relief will be frequently demanded in the future labor controversies, and it is well to have the principle emphasized in the beginning that the plaintiff must come into court with clean hands and without an affirmative suggestion from the circumstances involved, that he himself does not propose to do equity." I submit that this decision ought to greatly relieve ex-Senator Ingalls' late violent attack of court dyspepsia. The weak imitators of Carlyle usually have the worst pains after the best dinners. I respectfully commend to the New York Sun as being in direct line with this decision, the following from the Legal News' careful and interesting report of the Debs cases in Chicago.

Said Mr. Erwin, attorney for Debs, whom the Sun delights to lampoon, and the union men call "The Defender of Liberty:1 "I will show the remarkable fact that all the railroads named in this bill first entered into a conspiracy," etc. To this Judge Woods replied: "This is irrelevant, but if the facts are as stated, the public ought to know it. If there has been any such conspiracy the public prosecutor ought to start against every one of these railroad companies to forfeit their charters. * * * I will not impose any obstacle to its fair presentation, and if it is in my power to put the machinery of the court to work to develop it, you shall have it carried out." Judge Tourgee pertinently suggests, in an able article, that the best way to prevent strikes is to remove the inducement.

The legitimate results of such a line of action as here indicated by Judge Barrett and Judge Woods might go far toward it. V. Conclusion: Utterances by those in high judicial station, such as those of Justice Brown, of the United States Supreme