IV

FORECAST OF THE FUTURE

We may now come to consider the future of the labor relation, the remedies and resources of both sides, but particularly of labor, in what has been called the warfare between labor and capital, or in bettering its condition without warfare. The latter is the more congenial view of the subject, for, as one of the objects of all civilized government is to prevent warfare and violence, so we may. hope that the object of a higher civilization will be to prevent even that kind of warfare which consists in opposition and animosity as well as physical violence.

Labor Injunctions.

The side adverse to labor we may consider very briefly. The most notable development of recent years is the tendency, both on the part of the public and employers, to resort to the peculiar process of courts of equity to enforce what they deem proper conduct on the part of the employees. I wish I had time to go into this matter here at

length. The subject may be summarized in the following statements: Our courts of equity today represent the old power of the king in compelling the peace of the realm, and in ordering his subjects to do what the chancellor deemed the right thing among themselves. Law, as distinguished from equity, will never interfere among individuals or even on behalf of the State, to enforce a contract, to make a man, or set of men, do anything, and the peculiar power of proceeding in equity rests largely on the fact that the chancellor could order people not only to keep the peace and abstain from violence, but to perform any contract or any obligation which the laws of the realm imposed either as toward other subjects or toward the sovereign. This power of enforcing action, what we call specific performance in the law, is a very great one. It is made effectual by what is called process of contempt; that is, any person failing to perform the order of the court of chancery could be summarily imprisoned by order of the judge without jury trial, and without indictment in ordinary form, until such time as he actually did what the court required him to do. Recent Extension of Court Interference.

Now, this special subject of the courts of equity has received a great extension in this country in 1 See Political Science Quarterly, June, 1895: Modern Use of Injunctions," by F. J. Stimson.

"The

the last few years, and that in a very peculiar way; and it is another example of the danger of passing extraordinary laws which interfere in an unusual way with the bills of rights; for, in old times, the English chancellor, who was the king's right-hand executive officer (and courts of equity and courts of chancery are, as you understand, the same thing), in the time of great disorder which ensued upon the early civil wars in England, would interfere to protect private citizens against oppression, to protect the weaker side against violence, and to compel all subjects to preserve the peace of the kingdom. He would, for instance, order people, against whom the writ was claimed, not to commit riots or destruction of property, nor to commit personal injuries, or even crimes, and this summary jurisdiction, say the old writers, was in those days necessary to the peace of the realm. But in so far as the jurisdiction went to prohibit criminal offences and punish offenders summarily by the order of the chancellor, it was always extraordinary; shared also by the notorious court of Star Chamber, it led to great abuses, as by it obnoxious persons, or persons out of favor with the ruling party, could be arrested, tried, and punished, without any of the ordinary safe-guards of warrant, arrest, indictment, jury trial, obtaining evidence, and fixed rules of punishment which the English Constitution required. There

fore, this criminal jurisdiction of the court of chancery fell into disfavor, and, finally, into disuse. It was entirely gone by the time of the Revolution, if not by the time of Queen Elizabeth, and has never, in England, been revived since. The only part of the old equity jurisdiction which was left was that concerning, specifically, property rights; that is, where an injury to property was apprehended, for which a suit at law for damages would be no remedy, or where a man refused to perform a property contract for breach of which the other party had no equity remedy by damages; in these cases only could this extraordinary power of chancery still be invoked. Constantly from that time until now, the English court of chancery has refused to issue an injunction solely against committing a crime; and during the same period grew up the doctrine that it would not enforce contracts for personal labor. This is the important matter I referred to in the last lecture—that you may obtain the actual performance of a contract by bringing into chancery the party refusing to perform it in all cases of property right, in all cases except where the contract is merely for personal service. These two principles, that chancery will not enjoin against criminal offences, and will not enforce contracts for labor and personal services, are of the very greatest importance.

We started our courts of chancery in this coun

try, giving them the same jurisdiction they had in England. In fact the Federal law expressly states that they shall have such jurisdiction as the English courts of chancery had in Lord Eldon's time, about the beginning of this century. Therefore, as I hold, our courts of equity too may not interfere actively to prevent or punish a criminal offence as such, and may not enforce a contract of labor or personal service. But the property right remained; that is, you could go into chancery to prevent a man, or set of men, from committing a definite injury to property, and particularly when the injury was of such sort, or consisted in such an indefinite series of injurious acts by an indefinite number of people, that the common-law remedy for damages was not adequate. Now, this is a valuable jurisdiction, and, so far, it is well enough. But in 1887 was passed the United States law regulating interstate commerce, and in 1890 the United States law against trusts. These extraordinary statutes were meant to be in the interest of the people. They attempted both to prevent combinations in restraint of trade, to raise prices, etc., and combinations to interfere with interstate commerce. But the extraordinary feature of them was certain sections which gave, as it were, a certain property right to the United States in subjects of interstate commerce, and expressly authorized the United States to go into a