IN THE COURT OF APPEALS OFTHE DISTRICT OF COLlilBII 
 
 The Buck’s Stove & Range Co. ^ 
 
 
 PLAINTIFF J 
 
 f 
 
 VS. f 
 
 > No. 27,305 Equity 
 
 The American Federation of Labor ( 
 
 
 ET AL. 
 
 
 DEFEND\NTS 
 
 
 ARGUMENTS IN CONTEMPT 
 
 PROCEEDING 
 
 ALTON B. PARKER 
 
 JACKSON H. RALSTON 
 
 
 Solicitors for Defendants 
 
 J. J. DARLINGTON 
 
 JAMES M. 
 
 BECK 
 
 DANIEL DAVENPORT 
 
 
 Solicitors for Plaintiff. 
 
 Published for Circulation by the 
 
 American Anti-Boycott Association 
 
 27 WILLIAM STREET - NEW YORK CITY 
 
Argument of Mr. ALTON B. PARKER 
 
 Argument of Mr. J. j. DARLINGTON 
 
 Argument of Mr. JAMES M. BECK 
 
 Argument of Mr. JACKSON H. RALSTON 
 
S'iV^T 
 
 IN THE CIRCUIT COURT OF APPEALS, DISTRICT OF 
 
 COLUMBIA. 
 
 April Term, 1909. 
 
 Washington, D. C., 
 
 April 19, 1909. 
 
 The above entitled cause came on for argument before Chief 
 Justice Shepherd, Justice Robb and Justice Van Orsdel. 
 
 APPEARANCES : 
 
 For the appellants, Mr. Alton B. Parker and Mr. Jackson H. 
 Ralston. 
 
 For the appellee, Mr. James M. Beck, Mr. Daniel Davenport 
 and Mr. J. J. Darlington. 
 
 PROCEEDINGS. 
 
 $ 
 
 A 
 
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 V 
 
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 Mr. Ralston : If the Court please, the case of Samuel Gompers, 
 John Mitchell and Frank Morrison vs. Buck Stove & Range 
 Company is for argument this morning. Before entering into 
 the discussion, I want to say that it may be very difficult for 
 us, the fact is it is impossible, subject to your Honors’ orders, 
 however, to present and finish the argument of our case within 
 the two hours customarily allowed. So far as we are concerned, 
 we would ask that the discussion might be unlimited, assuring 
 the Court that should that be allowed, the privilege extended to 
 us would not be abused. I do not know what the disposition 
 finally of our friends on the other side may be. 
 
 Mr. Beck: There is no bill of exceptions before the Court. 
 Two hours, I think, would be sufficient for counsel for appellee. 
 Of course we do not wish a case of this character to affect the 
 disposition of the Court with reference to time for counsel for 
 appellants. We are willing to be limited by the rules of the 
 Court. 
 
 The Chief Justice : We will not apply the limit fixed by the 
 rules, as this is the last case for hearing at the term. 
 
 Mr. Ralston: If your Honors please, I desire to move the 
 admission of Mr. James M. Beck, of New York, former Assistant 
 Attorney General of the United States. 
 
 3 
 
The Chief Justice: Mr. Beck will be admitted on taking the 
 oath at the Clerk’s desk. 
 
 (The oath was thereupon administered to Mr. Beck by the 
 Clerk.) 
 
 The Chief Justice: Gentlemen, you may proceed with the 
 argument. 
 
 ARGUMENT OF MR. ALTON B. PARKER, 
 
 On behalf of Appellants. 
 
 Mr. Parker: May it please your Honors, I shall not ask the 
 patience of the Court while I proceed with an argument of more 
 length than I usually present, because I know from past experi- 
 ence in this Court that no such request need be made, that the 
 Court will be patient. But I apologize in advance, nevertheless, 
 for taking up as much time as I wish to take, because, your 
 Honors, this to me is the most important cause with which I 
 have had to do. It involves little in amount, nothing in the way 
 of dollars and cents, but it does involve the disgrace, the punish- 
 ment for a long period of time, running for a year, and nine 
 months, and six months, of three men well known to your Honors, 
 whose private lives are without blemish, whose following is 
 unsurpassed by any men in this country not in political life, 
 whose leadership has long been recognized by a strong and 
 vigorous and growing element in this country. They are to be 
 subjected, if the order stands from which this appeal is taken, 
 to punishment, at the request and instigation of the opponent 
 of these defendants, the plaintiff in the action. 
 
 This is not a case where the Government is proceeding against 
 someone because he has violated its statutes or offended against 
 them. It is a proceeding forced on by a party to the action who 
 seeks thereby to gain an advantage. The result is as I have said. 
 
 I said to your Honors that it was unexampled. So far as the 
 search which has been made by my learned associates and the 
 search that has been made through my assistants — and it has 
 been made as thorough as they could make it — there is no other 
 instance in the history of this country in which a man has been 
 adjudicated guilty of contempt and then punished for so long a 
 period of time as either Samuel Gompers or John Mitchell. 
 So far as our reading and our searching goes, there are but three 
 instances, your Honors, previous to this in which sentence has 
 been for so long a period as six months ; but there are three such 
 instances. There are states in this country that have undertaken 
 to regulate the length of time to which the court should be confined 
 in sentencing a man to prison for violating an order of the court. 
 There are but two states that we have been able to find in which 
 
 4 
 
the court is permitted to sentence a man for so long a period as 
 six months, while in the great majority of states in which there 
 has been any legislation upon the subject at all, the term of 
 imprisonment is limited from ten to thirty days, thirty days 
 being the maximum and in some states ten days being the 
 maximum. 
 
 Among the instances in which six months was the length of 
 the term fixed, one was the case of the lawyer who assaulted 
 an officer in court with a deadly weapon. He was given six 
 months. In the Thomas case, Thomas against Cincinnati, your 
 Honors will remember that Phelan was given six months, and 
 Judge Taft in his opinion said — and I beg your Honors’ attention 
 while I quote from it as to the character of that conspiracy : 
 
 “The gigantic character of the conspiracy of the American 
 Railway Union staggers the imagination. Debs and Phelan and 
 their associates proposed, by inciting the employees of all the 
 railways in the country, to suddently quit their service without 
 any dissatisfaction with the terms of their own employment, 
 to paralyze utterly all the traffic by which the people lived. 
 The purpose, shortly stated, was to starve the railroad companies 
 and the public into compelling Pullman to do something which 
 they had no lawful right to compel him to do. Certainly the 
 starvation of a nation cannot be a lawful purpose of a combina- 
 tion.” 
 
 On page 822 of the record in that case, Judge Taft said 
 further : 
 
 “The fact that it was the purpose of Debs, Phelan and their 
 associates to paralyze the interstate commerce of this country 
 is shown conclusively in this case and is known of all men. 
 
 “The punishment for a contempt is the most disagreeable duty 
 a court has to perform, but it is one from which the court cannot 
 shrink. If orders of the court are not obeyed, the next step 
 is unto anarchy. It is absolutely essential to the administration 
 of justice that courts should have the power to punish contempts, 
 and that they should use it when the enforcement of their orders 
 is flagrantly defied. But it is only to secure present and future 
 compliance with its orders that the power is given, and not to 
 impose punishment commensurate with crimes or misdemeanors 
 committed in the course of the contempt, which are cognizable in a 
 different tribunal or in this court by indictment and trial by jury. 
 I have no right, and do not wish, to punish the contemner for 
 the havoc which he and his associates have wrought to the busi- 
 ness of this country, and the injuries they have done to labor 
 and capital alike, or for the privations and sufferings to which 
 they have subjected innocent people, even if they may not be 
 amenable to the criminal laws therefor. I can only inflict a 
 penalty which may have some effect to secure future compliance 
 with the orders of this court and to prevent wilful and unlawful 
 obstructions thereof. 
 
“After much consideration, I do not think I should be doing 
 my duty as a judicial officer of the United States without imposing 
 on the contemner the penalty of imprisonment.” 
 
 Then the Court fixes the sentence at six months. 
 
 In the case at bar the sentence has been fixed at a year, and 
 yet, your Honors, without being able to put the Court’s finger 
 upon a single overt act made after that order went into effect, 
 indicating a purpose on the part of either one of the three 
 defendants to further continue that boycott. 
 
 It is unfortunate, as your Honors know, that it should so 
 happen that for the trifling allegations against these defendants — 
 and I so characterize them now, for I shall take them up one 
 by one in detail, and if 1 make not good my assertion, I shall be 
 unfortunate in my presentation — a man like Samuel Gompers, 
 for twenty years the honored president of this great organization, 
 sent abroad now by unanimous vote, to represent them in making 
 a study of the conditions of labor and capital abroad, a man 
 who is the welcome Vice-President of the National Civic Feder- 
 ation, which is engaged, as your Honors all know, in attempting 
 to ameliorate the conditions of capital and labor and cause them 
 to work as harmoniously together as it is possible, an organiza- 
 tion unsurpassed in its efforts for usefulness in all this country, 
 unsurpassed in the character of its membership, having for its 
 President the Honorable Seth Low, devoting a very considerable 
 portion of his life to its work — it is unfortunate that this man, 
 against whom not a breath of suspicion even in his private life 
 has ever been uttered, standing as the President of the 
 great organization known as The American Federation of Labor, 
 representing over two millions of citizens, performing what he 
 supposed to be a duty, should be picked as the first one in this 
 country, at the instance of a private suitor, to be sent to jail 
 for a period of a year — receiving the longest sentence that in 
 the history of this country has been given to any man as punish- 
 ment for contempt of court. I need not say to your Honors 
 that such a result would be unfortunate, for your Honors 
 know well that it would be. 
 
 It is not only necessary that justice should he done , but it is 
 for the best interests of the people of this country that it should 
 at the same time seem that justice is done. This sentence would 
 be most unfortunate, could it be justified, and I shall attempt 
 to show it cannot, because it is a most extreme sentence; it 
 would be most unfortunate, I repeat, if it could be reasonably 
 justified, that it should stand unreversed, because there will be 
 millions of people who will never feel that it is founded on 
 wisdom and conscience. It is because of those who cannot 
 understand how such a sentence can possibly be just that makes 
 it so important for the courts to observe the appearance of justice 
 while doing justice. 
 
 6 
 
On the other hand, it may be said by the counsel on the other 
 side that there is to be found now and then in this record and 
 out of it expressions which indicate dissatisfaction with this and 
 other decisions; that now and then utterance is made by the 
 representatives of organized labor in which they speak unappre- 
 ciatively of Judge-made law and as if statute law were better. 
 Well, your Honors, there are to be found those expressions, 
 both by laborers and representatives of labor, and in their making 
 they are mistaken, in my judgment. I believe that our system 
 of law, which has developed by the application of legal principles 
 to new conditions, is the very best system that has ever been 
 devised, that under it the law has developed to meet the new 
 and constantly changing conditions of our complicated modern 
 business life, and that courts are entitled to the highest praise 
 for the conscientious efforts of the judges to so mold and 
 develop the law as to work out justice. Yet we cannot pretend 
 that errors are not made. Indeed, many are. It is for that 
 reason that we have appellate courts who may sit in review of 
 the decisions hurriedly made by judges at trial and equity term — 
 courts that have the advantage of more careful preparation by 
 counsel with the advantage of consideration of the questions 
 presented in the light of the decision of the court below — courts 
 that are composed of several judges who have the opportunity 
 of a free expression of views to one another around the consul- 
 tation table — courts the members of which do not hesitate either 
 to differ with one another or with the court below in stating the 
 conclusion which they reach either severally or collectively. 
 
 But it must be borne in mind that men unlearned in the law and 
 not acquainted with judicial procedure and the method of reaching 
 decisions do not always take the judicial and the correct view 
 of errors and the cause of them. 
 
 Those interested in the cause of labor realize, as do 
 we, that there always has been and always will be a 
 s truggle for advantage between labor and capital, each 
 striving for a little more of the rewards which come from the 
 combination of labor and capital. It has always been so and 
 so it will be till the end of time. Much may be done and fre- 
 quently is done by the representatives of each and those who 
 may be termed outsiders to ameliorate the difficulties. # But they 
 cannot end them. The condition of the laborer is vastly improved 
 since that period long ago when a statute of England forbade 
 an agreement of laborers to seek higher wages, and provided 
 as a penalty for a third offense against the statute the loss of 
 an ear and to be held as a man infamous. In my judgment, the 
 improvement that has taken place since that day has been con- 
 tributed to in very large measure by the courts. Still it should 
 be remembered that it is only about thirty years ago that in the 
 State of Massachusetts men were convicted for conspiring to- 
 gether to discontinue their employment — in other words, to 
 strike. That decision was swept aside by the Supreme Judicial 
 
 7 
 
Court of Massachusetts, Chief Justice Shaw writing, in the 
 doing of which there was established a precedent which has been 
 accepted and followed by courts of this country, until it may 
 now be said to be the law of the land. 
 
 In numerous other cases orders have been made by 
 a single judge which were frequently too broad, and 
 did during the term of their existence violate the rights 
 of those affected. And it is equally true that in many cases 
 the orders were corrected on appeal. But often it happened 
 that the contestant of labor in the litigation gained a most 
 decided advantage in its contest by reason of gaining the first 
 decision. So again, another and very recent instance is to be 
 found in the decree in the very case out of which this contempt 
 proceeding grows, for it has already been determined by this 
 court that the decree was too broad and that it violated, as the 
 defendants contended that it did, both as to speech and writing, 
 their constitutional rights. True, the error has now been cor- 
 rected and in the orderly course of procedure. But it does not 
 require argument to show that the original error of the trial 
 court has embarrassed these defendants in no small degree; 
 and yet, of course, the Judge did not intend to commit error 
 and is undoubtedly thankful to your Honors for making the 
 correction. 
 
 Because errors are committed by those learned in the 
 law and charged with its administration, we should not 
 be surprised that the victims of the errors and unlearned 
 in the law look for that greater stability which it seems to them 
 the statutes afford. At least their misfortunes, which often bias 
 the judgments of men, should be accepted in mitigation of their 
 sometimes expressed preference for statute law. Already serious 
 doubt in their minds has arisen as to the correctness of early 
 impressions, for in this very case, out of which has grown the 
 contempt proceeding which is now before your Honors, with 
 which I had the honor to assist in arguing before your Honors 
 some time ago on the appeal from the final decree, there has 
 come a decision accompanied by an opinion by each member of 
 this court — opinions that show independence of thought, careful 
 consideration and a keen appreciation of the questions involved — 
 questions which were pressing for solution, as these opinions 
 show. The lesson which they teach will not soon be forgotten 
 by the many directly or indirectly interested who shall read them. 
 While I must admit that the decision is not in all respects accept- 
 able to me, and must say that if it were still an open question, 
 I should argue again, your Honors, in favor of one proposition 
 as to which you reached a decision against us, yet I do not 
 hesitate to assert that not in a long time has there been for the 
 public good so fortunate an event as the writing of the three 
 opinions in this case. They enable me to say to-day to one of 
 the men whom I represent that although not deciding all we 
 wished and hoped for, nevertheless the decision blazes a path 
 
 8 
 
through the forest which will be trod hereafter by many, many 
 judicial decisions. Just precisely as many decisions to the advan- 
 tage of labor have followed in the path marked out by Chief 
 Justice Shaw. 
 
 If your Honors please, I am going to treat, if I may, of the 
 findings which have been made against my clients in the order 
 in which the facts are stated in the petition. I shall take up, 
 first, the sixteenth paragraph as it appears in the petition, for 
 this paragraph is found to be true by Judge Wright. You will 
 find at the close of the case a decree which makes certain 
 recitals of fact, seven in all, although they are not thus sub- 
 divided therein. The decree appears on pages 638-9 of the 
 Transcript of Record. They are not treated in exactly the order 
 in which they appear in the petition, and perhaps that is due 
 to the fact that the draftsman thought he could do it more 
 briefly in the way in which he has done it, inasmuch as now 
 and then there is a charge against Gompers alone and then one 
 against Gompers and Morrison and then one against Gompers 
 and Morrison and Mitchell. He has compressed the findings 
 into a single page and therein is to be found a summary of the 
 facts alleged in this petition. I shall take up every one of them 
 as there referred to, taking them up in the order in which they 
 appear in the petition, beginning with the 16th. 
 
 Before I do that, however, I want to call your Honors’ atten- 
 tion to one matter which comes to my attention as I turn over 
 the pages to look at the decree, and that is that this is a prosecution 
 by the leader of the forces of the opposition to organized labor 
 as will appear from a statement annexed to the opinion of the 
 learned justice below, under the title of appendix B. There are 
 a few sentences I want to read, because those sentences Mr. 
 Justice Wright thought were important and annexed them 
 to his opinion. They consist of an interview between Mr. Van 
 Cleave and certain representatives o*f organized labor. 
 
 I will read first a sentence from page 631, in which Mr. Van 
 Cleave says : 
 
 “We are members, as you know, of the Stove Founders’ De- 
 fense Association. This matter of a nine hour day was taken 
 up on the 27th, 28th and 29th of June, 1906, between the 
 conferees of the National Metal Polishers’ Union and the con- 
 ferees of the Stove Founders’ Defense Association. They spent 
 three days on this subject, in Chicago. The result of it was that 
 after a good deal of hallowing and bellowing, they could not 
 agree and the matter was laid over.” 
 
 I turn then to the middle of page 633, where Becker, who was 
 one of the labor representatives, says : 
 
 “If I am not misinformed, the members of the various Pol- 
 ishers’ Unions throughout the country only work nine hours per 
 day. 
 
 9 
 
“Mr. Van Cleave : That may be true, but we are members of 
 the Stove Founders’ Defense Association.” 
 
 I turn then to page 634, a little below the center of the page, 
 where Kreyling says: 
 
 “I have not heard Mr. Van Cleave give any reason why the 
 Bucks Stove & Range Company refuses to grant the nine hour 
 day only that you claim the other parts of the foundry are 
 working ten hours. 
 
 “Mr. Van Cleave: All of our competitors in St. Louis are 
 working ten hours, and the majority of our competitors in this 
 district are working ten hours, and besides the Defense Associa- 
 tion is the one to adjust this matter. 
 
 “Mr. Kreyling: The action of the Defense Association leaves 
 it open for the Metal Polishers to come to any final conclusion 
 on the matter they wish. Now we certainly will grant the right 
 to any local organization to try and shorten their hours if there 
 is any possible chance to do so. 
 
 “Mr. Van Cleave: I have no objection to any shorter hours.” 
 
 I now turn to the middle of the next page, 635 : 
 
 “Mr. Kreyling: Do you realize, Mr. Van Cleave, that the 
 request of the Metal Polishers at this time, and has been since 
 the beginning of this controversy, is the nine hour day? The 
 point is this : The Bucks Stove & Range Company are not willing 
 to grant the nine hour work day until the Defense Association 
 grant it. 
 
 “Mr. Van Cleave: If the Defense Association agrees to the 
 nine hour day tomorrow, I would put our entire shop on a nine 
 hour basis at once.” 
 
 Then I drop down to the bottom of page 635 and read as 
 follows : 
 
 “Mr. Van Cleave: I will grant the nine hour day when the 
 Defense Association agrees to it, and will make the entire shop 
 a nine hour day shop when they have reached this decision, and I 
 think that is as much as you should ask of me. I am not unfair 
 to labor at all. There is not a man in this country that appreci- 
 ates his workmen more than I do.” 
 
 Then I skip the next two or three sentences and read as 
 follows : 
 
 “Mr. Kreyling: We are responsible for our actions, if not 
 as an organization, as an individual, and I am willing to stand 
 for my action at any time. We will take it for granted that you 
 absolutely refuse to grant the nine hour day at this time? 
 
 “Mr. Van Cleave: I will grant the nine hour day when the 
 
 10 
 
Defense Association does so. At such time that the Defense 
 Association agrees to the nine hour day, we will put our entire 
 shop on the nine hour basis. When it comes to a point that we 
 agree with any department to run nine hours, then we will put 
 our entire foundry on that basis. Now this is a fair proposition 
 to me, and I cannot in honor grant it as long as I am a member 
 of the Defense Association under present conditions. When the 
 Defense Association agrees with the Metal Polishers to a nine 
 hour day, we will put our entire shop on nine hours. That is 
 my position.” 
 
 I skip again two sentences and read as follows : 
 
 “Mr. Kreyling: It is not the fault of the Metal Polishers 
 that this case is brought against the Bucks Stove & Range Com- 
 pany. Your foreman tolerated the reduction of hours in your 
 polishing department and let it go on for some time. 
 
 “Mr. Van Cleave: If the foreman does things contrary to 
 my instructions and without my knowledge, and it runs on for 
 a short time, why we cannot be held responsible and it does not 
 establish a fact by any means. I am perfectly willing to abide 
 by any agreement that the Defense Association may enter into 
 with the Metal Polishers, and it would not make a particle of 
 difference to me if they entered into it tomorrow, but until they 
 do I am not in a position to grant the nine hour day. When I 
 heard that you were coming in here, I had hoped that I would 
 come in contact with fair men, but your proposition is anything 
 but fair.” 
 
 Turning now to the top of page 637 I read as follows : 
 
 “Mr. Kreyling: Am I to understand, Mr. Van Cleave, that 
 you are willing to arbitrate this proposition ? 
 
 “Mr. Van Cleave : The Defense Association will take it up. 
 I cannot take it up. The matter was discussed in June with the 
 conferees of the two national organizations. They did not 
 agree. Now then certain action was taken and then the Defense 
 Association stepped in. 
 
 “Mr. Becker : Those members of the Defense Association who 
 are working nine hours a day, are they not unfair to their Asso- 
 ciation ? 
 
 “Mr. Van Cleave: There is another .point. I will show it to 
 you. If this matter had never gone to the Defense. Association 
 or if I had granted the nine hour day last year, or the year 
 before, without discussing the matter of taking it up with the 
 Defense Association, then I might have done so, but having once 
 given it to the Defense Association, then it is out of my hands. 
 I cannot today do what you ask me to do without stultifying 
 myself with the Defense Association. If Mr. Grout wants it 
 done, he can get a conference with the Defense Association. If 
 
 11 
 
you people undertake to run a boycott and injure our business 
 here, why there is absolutely no fairness in your proposition. 
 
 “Mr. Becker: This matter would certainly adjust itself pro- 
 vided you were willing to grant the nine hour day. 
 
 “Mr. Van Cleave : I am willing to grant the nine hour day 
 provided the Defense Association agrees to it. You cannot 
 force this company to run nine hours. This company will run 
 ten hours as long as its competitors in the district do so. Those 
 who are members of the Defense Association. 
 
 “Mr. Lucas : Regarding what you say, now suppose that we 
 were starting in the stove manufacturing business and would 
 not be a member of your association, we would be competitors 
 of yours. Now do you think you would do anything to help us 
 along, or would you do everything you could to put us out of 
 business ? 
 
 “Mr. Van Cleave : My friends, the relation that exists be- 
 tween myself and the other stove companies is equivalent to 
 though we were interlaced stockholders. We do not try to put 
 them out of business. Now the Metal Polishers say that we are 
 requiring our men to work ten hours for nine hours’ pay. That 
 is not true.” 
 
 So your Honors see that which you probably discovered long 
 ago when you were considering this case on the main appeal, 
 that this is a contest between leaders. This is a contest not be- 
 tween the American Federation of Labor and some weak manu- 
 facturing establishment. This is a contest, as you can see from 
 what I have read, which has been welcomed by Van Cleave, 
 the President of the National Manufacturers’ Association, the 
 leader of the great capitalistic forces that have their moneys 
 properly engaged in manufacturing in this country; a member, 
 as he testifies of the Defense Association. He admits that these 
 very men did have, for a period, the nine hour day, but he saw 
 fit to repudiate it and said his foreman had no right to permit 
 it. He thus concedes practically that the change of situation was 
 unfair; and yet he welcomes this contest rather than do what 
 it is apparent he could do if he saw fit — arrange this matter with 
 the Defense Association. 
 
 I refer to that, your Honors, merely for the purpose of pre- 
 senting the atmosphere of this situation, so that you may see 
 that this is not to be treated after all as you would treat a case 
 where the Government w T as appearing as prosecutor. As Mr. 
 Justice Brewer said in the Bassette case, 194 U. S., 324, the 
 real purpose is to help out a litigant. The basis for this contempt 
 proceeding is that there is a disobedience of the order of the 
 court, but the gainer is not the Government, or the people, but 
 the individual who is engaged in the contest with defendants. 
 It is at least as important in such a case that it shall appear 
 
 12 
 
beyond a reasonable doubt that there has been a violation of the 
 order of the court as it should appear when the man stands 
 charged with an offense against the law. When a decree of 
 the court is operating to incarcerate, to deprive men of their 
 liberty, it should appear beyond a reasonable doubt that the 
 offenses charged were committed, and with the intent to violate 
 the order of the court. 
 
 After the date of the order, but before the order became effec- 
 tive by the filing of the bond, comes first charge made against 
 Morrison and Gompers and Mitchell, and is to be found at page 
 12 of the transcript of record, and in paragraph XVI, reading 
 as follows : 
 
 “The order for an injunction pendente lite having been passed 
 on the 18th of December, A. D. 1907, and the injunction having 
 taken effect and become operative on the 23d day of December, 
 A. D. 1900, as above stated, the said Samuel Gompers, as will be 
 seen by reference to his deposition in this cause, hastened or 
 rushed the publication of the January, 1908, issue of the Ameri- 
 can Federationist, with a view to circulating the same during 
 the time which should elapse between the passage of the said 
 order for an injunction, and the injunction order itself. The 
 said January, 1908, number, at page 51, includes and publishes 
 in full the ‘We Don’t Patronize’ or ‘Unfair’ list of the American 
 Federation of Labor, containing the name of petitioner; and at 
 page 38 of the said issue, the said Samuel Gompers published 
 the following: 
 
 “ ‘A limited number of the American Federationist for 1907, 
 bound in two volumes, may be had on application to this office. 
 The 1907 volumes are bound in the same style as the preceding 
 years. 
 
 “ ‘The official printed proceedings of the Norfolk Convention 
 of the A. F. of L. are now ready and can be had upon application 
 by mail, 25 cents per single copy, $20 per hundred. Postage 
 prepaid by the A. F. of L.’ 
 
 “The said proceedings of the Norfolk Convention contain, at 
 page 91, the name of petitioner as being on the unfair list of the 
 American Federation of Labor.” 
 
 It then recites that notwithstanding the fact that the injunction 
 pendente lite has taken effect on the 23d day of December, 1907, 
 Gompers and Morrison thereafter continued to circulate and 
 distribute that issue of the American Federationist. 
 
 There is no opportunity for controversy about the facts. The 
 fact is that the American Federationist was rushed. It was 
 printed and distributed after the order was made, but it was 
 printed and distributed before the order became effective for any 
 purpose under the decision of this court. The order was made 
 on the 18th day of December. At that time no one of these 
 
 13 
 
copies of the American Federationist for January had been 
 issued. It is usual to publish on the 24th of a given month the 
 edition bearing the title of the succeeding month, and so on 
 the 24th day of December there would have been issued, in the 
 ordinary course, the American Federationist for January; but 
 instead of being issued on the 24th day of December, it was as 
 a matter of fact issued on the 22d day of December, and issued 
 after this order was made and issued with knowledge on the 
 part of Gompers that the Court had rendered this decision. 
 
 Your Honors, I have thus frankly stated this to you in order 
 that you may at once understand our position, and I present it 
 with all its baldness and nakedness, without any attempt to 
 apologize for any part of it, because, your Honors, there is not 
 to be found in this record, in my judgment, any other opportunity 
 for discussion even of a claim that Gompers or Morrison violated 
 any provision of that decree as your Honors say it should have 
 been rendered. There is not to be found anywhere in any one 
 of these findings made by the judge a single act or utterance 
 of Gompers that your Honors will say is in violation of the decree 
 as it has been rewritten by you, unless your Honors shall say 
 that these acts I am now speaking of are in violation. 
 
 Your Honors have held in this District, in Drew against 
 Hogan, 23 App. D. C., 456, that there can be no contempt of an 
 order until after the bond has been filed; that it is not effective 
 until the bond is filed; and that therefore that which is done — 
 and this you said in a contempt case — which violates its terms 
 before that bond is filed is within the right of a person to do, and 
 hence is not in violation of such order. That was the advice 
 which Samuel Gompers received from his counsel, ajnd his counsel 
 gave him the advice on the strength of that decision. 
 
 Justice Robb: He so states in his testimony? Does the record 
 show that he received that advice? 
 
 Mr. Parker: Yes, sir. 
 
 Mr. Darlington : I think counsel is in error about that. 
 
 Mr. Parker: How is that, Mr. Ralston? 
 
 Mr., Ralston : I did not understand what you said. 
 
 Mr. Parker : I said that this Court had decided that the order 
 was not effective until after the bond was given, and that Mr. 
 Gompers was advised by his counsel that the distribution prior 
 to the giving of the bond would not be in violation of the order, 
 and that that furnished the basis for his consequent action. 
 
 Mr. Ralston: True he was so advised, but I do not remember 
 what the record shows. 
 
 Mr. Parker : I could not put my finger on the place in the 
 record, but I know in the presence of Mr. Ralston and Mr. 
 
 14 
 
Gompers this has been said. I think it is in the record, but I 
 could not find it at this moment. 
 
 I shall go further, your Honors, in that connection, and call 
 your attention to something else that happened here that will 
 satisfy you that it must be true. 
 
 Justice Robb : It certainly has a bearing on his good faith. 
 
 Mr. Parker: Exactly, and I will call your attention to other 
 matters in this same connection that will satisfy you that must 
 have been so. 
 
 The very fact that it was hurried shows that there was an 
 intent to obey the order of the Court when it became an order. 
 The very fact that the name “Bucks Stove & Range Co.” never 
 again appeared in the “We Don’t Patronize” list of the American 
 Federationist shows it was the intention of Gompers and the 
 others to obey the order, and it never again did appear, your 
 Honors, in the “We Don’t Patronize” or “Unfair” list of the 
 American Federation of Labor. Then and for the last and the 
 only time since the injunction order was made it so appeared. 
 
 It seems to me, as I have considered the matter, that I should 
 pause and say to your Honors that, even if there were nothing else 
 — although there is more to which I shall call your attention — 
 this fact would make it the duty of your Honors to say, “He did 
 stop; he never did publish it again. And there was an authority 
 of ours, which is good law, which justified that action.” 
 
 It was precisely as if a statute should be passed to take effect 
 six months away, say on the first day of September. Of course 
 no one would pretend that action taken on the 31st day of 
 August violated the statute taking effect the next day. It may 
 well be that in the intervening period, ethics, some sort of ethics, 
 might call upon a man to say, “I will not do a thing that is going 
 to be illegal after the first day of September.” But when the 
 courts come to consider the matter legally they say, “You are 
 not bound until the act takes effect.” And until this order takes 
 effect, your Honors will conclude, I think, that he was not vio- 
 lating something that was not operative, that was not alive, that 
 did not exist. But you will find in the fact that he hurried it 
 up a day or two, an intent to obey the order of the court, when 
 and as soon as it should become effective. Of course, these 
 monthly publications are turned over to the printer more than 
 fifteen minutes before their distribution or before they are printed. 
 Your Honors will find in the fact that he hurried to get it into 
 the mails before the bond came on, and then never again printed 
 or published it, evidence that it was not done in contempt of 
 this order or with intent to contemn the order. Further evidence 
 in that direction is that he called together the employees, after 
 the distribution, and said to them that there must be no other 
 or further distribution. 
 
 15 
 
There were some copies distributed after the 23d. If I am 
 right in my recollection, that number was 37. It so appears at 
 one page of the record, and I know of nothing to the contrary. 
 My recollection is that the number was thirty-seven copies, as 
 given by the testimony of one witness, but those were not sold 
 in the ordinary way. The testimony explains how they came to 
 go out. They were sent to institutions, to libraries, that made 
 application for them, to lawyers, and so on, but only a few in 
 number. They were not sold to the general trade. Of course, 
 your Honors, if you should reach the conclusion that that was a 
 technical contempt, you would hardly hold that Mr. Gompers 
 should be punished for that in view of his orders. When you 
 read this record you will make up your minds that not to save 
 himself from a year in jail would he make a statement that is 
 not true. There is boldness and frankness in his answers through- 
 out. Your Honors will reach the conclusion from a study of 
 this record that when he tells you that he gave that direction, 
 and that there was that other distribution, although he did not 
 know it until after it was all over, that his statement is true. 
 But you will then go further and say, no matter if he was 
 responsible for it, these thirty-seven copies were not issued for 
 the purpose of furthering a boycott. Nobody sends out a few 
 copies of the American Federationist upon the request of libraries 
 and institutions and so forth for the purpose of furthering a 
 boycott. You will come to that conclusion the more readily be- 
 cause before I finish with this I shall make it very clear to your 
 Honors, I think, that there is not any opportunity to reach the 
 conclusion that Gompers or Mitchell or Morrison intended to do 
 anything except to fight in the courts with all their might against 
 an order which they and their counsel believed was in excess of 
 the power of the Court. That they meant to do and did do, 
 but further than that they did not intend to go nor did they. 
 
 This brings me to another point which I wish to present in 
 this connection, and it has a bearing upon every one of the alle- 
 gations in the petition and findings.. If it were possible for your 
 Honors to take a contrary view to that I have indicated, if you 
 could possibly reach the conclusion that what happened here 
 constituted a technical contempt, you would not let this adjudi- 
 cation stand, in my judgment. But assuming otherwise, then I 
 come to the proposition that so much of the decree as undertakes 
 to prohibit the distribution of the American Federationist, with 
 the Bucks Stoves under the “We Don’t Patronize” list, is void 
 because so interwoven with other void provisions as not to be 
 separable. In the final decree, your Honors say, by Mr. Justice 
 Hobb: 
 
 t “But, we think the decree in this case goes too far when it 
 enjoins the publication or distribution through the mails or other- 
 wise of the Federationist or other periodicals or newspapers con- 
 taining any reference to complainant, its business or products, 
 as in the ‘We Don’t Patronize’ or ‘Unfair’ list of the defendants. 
 
 16 
 
The court below found, and in that finding we concur, that this 
 list in this case constitutes a talismanic symbol indicating to the 
 membership of the Federation that a boycott is on and should 
 be observed. The printing of this list, therefore, is what the 
 Court sought to prevent; but the decree should stop there and 
 not attempt to regulate the publication and distribution of other 
 matters over which the Court has no control.” 
 
 Mr. Justice Van Orsdel said: 
 
 “The guaranty of freedom of speech and freedom of the press 
 was placed in the Constitution to prevent Government censor- 
 ship as practiced at that time in many of the Governments of 
 Europe. That, therefore, which was placed in the organic law, 
 to accomplish an end so essential to the freedom and welfare 
 of the people is only susceptible of qualification by judicial 
 decree. . . . The sustaining of such a decree by a court of 
 
 equity would violate the constitutional rights of a citizen. It 
 would mark the beginning of the era of judicial tyranny by the 
 branch of the Government charged with the duty of protecting 
 the citizen in his constitutional and legal rights. The clause in 
 the Constitution guaranteeing free speech and free press was 
 placed there to prevent the repetition of the abuses that have 
 grown up in the monarchies of Europe — Government censorship 
 of the press. It is folly to assert that this provision of the Con- 
 stitution is a mere inhibition on Congress from passing any law 
 abridging the freedom of speech and the freedom of the press. 
 It forbids Government censorship in all forms ; it would be 
 difficult to conceive of a more effective method of establishing 
 a Government censorship than through the writ of injunction. 
 For the violation of its commands the contemner can be dealt 
 with in the most summary manner, tried, adjudged and sentenced 
 by the judge whose order has been disobeyed. The right of a 
 citizen to express his opinion in the way of just criticism either 
 orally or through the press is a privilege that cannot be abridged. 
 This right is as essential to his liberty as the right to choose his 
 calling. It may not be assailed even by the courts. The right 
 is equally sacred whether recognized individually or in conjunc- 
 tion with others. 
 
 “I agree fully that the record discloses a state of facts calling 
 for equitable relief, but the decree of the Supreme Court of the 
 District should be modified so as to apply only to the unlawful 
 acts of the defendants as established by the record. It should 
 only restrain the conspiracy, which in this case consists of the 
 threatened damage to the person having business dealings with 
 the complainant or threats directed against the complainant organ- 
 ization which tend to prevent others from freely conducting 
 business with it. The publications complained of not being in 
 themselves subject to equitable restraint, the decree should only 
 restrain these publications as of incidents to and in furtherance 
 of the conspiracy.” 
 
 17 
 
The learned Chief Justice said: 
 
 “Assuming that the publication of the Bucks Stove & Range 
 Company in the ‘We Don’t Patronize’ column of the American 
 Federationist was a step in the formation of a conspiracy to 
 coerce independent dealers into refusing to have further busi- 
 ness relations with that company, I cannot agree that the publi- 
 cation can be restrained for that reason. Regardless of its 
 character or purpose, the publication is protected from restraint, 
 in my opinion, by the first amendment of the Constitution, which 
 forbids any law abridging the freedom of the press. 
 
 “For the reasons given I cannot agree with the terms of the 
 decree as modified. In my opinion, it should be modified so as 
 to restrain the acts only by which other persons have been or 
 may be coerced into ceasing from business relations with the 
 Bucks Stove & Range Company, but so as not to restrain the 
 publication of the name of that company in the ‘We Don’t Pat- 
 ronize’ columns of the American Federationist, no matter what 
 the object of the publication may be suspected or believed.” 
 
 I have read these extracts from the opinions because they 
 show your Honors in accord up to a certain point. You 
 are in accord at least in this, that this r provision of the order 
 was too broad, and you are in agreement that in the breadth and 
 scope of that order it offended against the Constitution of the 
 United States. A majority of you, however, agreed that equity 
 may interfere with any act that may be said to tend to help on 
 a boycott, when its purpose is to further boycott, whether it be 
 by printing, writing or speaking. But you do agree that that is 
 the limit to which such an order may go, that it may restrain 
 publication, provided the publication is in furtherance of the 
 boycott. 
 
 Of course if it were not too late, I would venture to suggest, 
 while it may seem, at first blush, perfectly natural to reason 
 that as equity may step in and restrain boycotts, it may also 
 restrain all the incidents and steps that go to further that boy- 
 cott, that the answer to my mind, your Honors, and which I 
 respectfully present is that,, so it could were it not for one thing, 
 namely: The Constitution prohibits abridgment of the freedom 
 of press and speech. When the Constitution says that free speech 
 and free press shall not be abridged, then courts and Congress 
 shall halt. 
 
 If you ask, how can equity stop there? Does not that leave 
 the door open so that those who wish to violate a decree of an 
 equity court restraining a boycott can go right on and violate 
 it, and leave equity powerless to help? No, it seems to me that 
 an injunction against a boycott is just as effective without a viola- 
 tion of the Constitution. 
 
 Mr. Justice Van Orsdel : Could not a boycott be conducted 
 successfully through the press? 
 
 18 
 
Mr. Parker : I do not know but it might. I am not prepared 
 to say that it could not be, but what I was going to say is this : 
 Here is this decree which enjoined these people from further 
 promoting this boycott. Suppose there had been nothing in it 
 at all about printing or writing or speaking, and further let us 
 assume that Gompers and Mitchell had continued to publish the 
 “We Don’t Patronize” list as heretofore, and otherwise advised 
 the prosecution of a boycott. Then the boycott continuing — 
 these publications would be accepted by a court as evidence 
 tending to show a prosecution of the boycott. And there is 
 nothing at all to prohibit punishment for what people do, through 
 the press. It is only previous restraint that is forbidden. 
 A cou'rt of equity can take that very publication and say : 
 This is evidence that you are violating this portion of the decree 
 which undertakes to prohibit you from carrying on or furthering 
 a boycott. That, it seems to me, is what equity could do ; and it 
 would be quite sufficient for its purpose and have the advantage 
 of not trespassing upon constitutional guarantees. 
 
 But that is only in passing, for I do not intend to reargue the 
 question. 
 
 I am arguing now that your Honors will have to disregard so 
 much of the order as offends against the Constitution of the 
 United States, so much as undertakes to lay upon Gompers and 
 Mitchell and Morrison a restraint not only as to printing, but 
 as to writing, talking and speakifig. 
 
 My proposition now is this : That so much of that decree as 
 relates to the subject of writing, printing and speaking is void 
 because in excess of the power of the court. For that I rely 
 upon the decision of this Court for one of my authorities. 
 (Elliott v. United States, 23 App. D. C. 46.) I shall not stop to 
 discuss it because it has been considered by this Court, and also 
 because of the cases in the Supreme Court of the United States 
 which this court cites in support of its position, namely : that one 
 need not obey an order which is void, and that one cannot be 
 punished for contempt who does. I shall not stop to discuss 
 that question or the authorities, but I say your Honors’ decision 
 in this case and the decisions of the Supreme Court of the United. 
 States which you summon in support of it, so establish the 
 proposition that it needs no further debate. But how could there 
 be occasion for debate when the question was first brought to 
 the attention of the court? Have not the courts held, and held 
 ever, that an act of Congress which violates the Constitution of 
 the United States is absolutely void and need not be obeyed by 
 anyone; that a person may treat it with contempt, taking his 
 chances always; and if it shall turn out, however it may be 
 attacked, whether in a criminal or a civil action, collaterally or 
 in any other way, that the statute is unconstitutional, the fact 
 that a person has defied it brings him no harm, because the courts 
 say it is void. There does not exist the power on the part of 
 
 19 
 
the congress to violate the Constitution by any enactment that 
 will lay for one moment upon any citizen any mandate that the 
 Constitution says he shall not bear; and of course it would be 
 absurd to argue that Courts, whose common law principles may 
 be done away with and statutes put in their place by Congress, 
 may make a decree effective for any purpose which absolutely 
 offends against the Constitution of the United States; so that 
 the man who violates that decree violates something which has 
 vitality and force; that the Court, one of the departments of 
 the Government which upholds the Constitution, is above and 
 beyond the legislative branch in that its decree, although in its 
 very teeth, may be enforced even by imprisonment, whereas an 
 act of the Congress upon the same subject may not. 
 
 If the proposition had never been before your Honors, and 
 there was an act of Congress containing precisely the same lan- 
 guage which is in this decree which you emasculated on the 
 appeal to you, your Honors would have said it is void and 
 cannot live, and a sentence against one who has violated it 
 cannot live, and cannot be enforced by the criminal courts. If 
 brought to you on habeas corpus your Honors would have said, 
 it cannot stand, it is void, he cannot be punished who disobeys it. 
 
 Of course if it were entirely a new question, you would not 
 attempt to assume that the decisions of the court below or your 
 own -should have any other or greater force or effect. 
 
 But, as you may say, “We have not held it all to be void, 
 therefore one defect in your argument is that you are now 
 treating every bit of it as void, and yet we have held that there 
 may be a restraining of the publication of the name in the ‘We 
 Don’t Patronize’ list or the ‘Unfair’ list if done in furtherance 
 of the boycott.” “We have limited it to that.” “We have held 
 that thus far the Constitution is not offended against. What 
 is your answer? Can you say as a matter of law that this order 
 is void so as to sweep away the entire order?” 
 
 Yes, your Honors, that is just what I intend to say. I intend 
 to say as your Honors so well know, that it is perfectly well 
 settled that when a statute comes before your Honors that con- 
 tains one, two, three or four provisions, you may hold that one 
 of them is unconstitutional perhaps, and sweep it away, and let 
 the others live. But you only do it and can only do it where 
 the valid provisions form a perfect and complete whole. You 
 cannot emasculate here and there a word, a phrase or a sentence. 
 You have got to emasculate the unconstitutional clause in its 
 entirety, and then if the other sections provide for a complete 
 working scheme, your Honors may say that may live. But it is 
 more often that the whole statute dies, because unless the scheme 
 is perfect and could have met the purpose of the legislators with- 
 out the void provisions, it will not be allowed to stand. 
 
 These tests more often come up in cases of penalties. In a 
 case of penalties the courts hold its purpose is enforcement, and 
 
 20 
 
the clause as to penalties offending against the Constitution may 
 be stricken out and the other remain. 
 
 All the offensive provisions in this case which have so attracted 
 your Honors’ attention and condemnation that you have elimi- 
 nated them are so interwoven that you cannot separate them 
 under any precedent to be found in the books. 
 
 In this order as it stands, from the beginning of the subject 
 of printing down to the very end of it, there is not a period 
 or a semicolon, and no one reading that order, your Honors, 
 would be of the opinion that its purpose was solely to restrain 
 the printing, issuing, publishing, etc., in the American Federa- 
 tionist in the “We Don’t Patronize” or “Unfair” list of the 
 name of the Bucks Stove & Range Company for the purpose 
 of furthering a boycott. There is no man who can read that 
 order in that way. 
 
 I had intended to read the order with some comment on it. 
 but I shall not stop to do that because your Honors have studied 
 it and therefore I can safely pass it. But I repeat again that that 
 decree, as your Honors have all agreed, exceeded the power of 
 the court ; and those phrases are so interwoven that such a clause 
 as you say would be constitutional cannot be found in it. You 
 must read it, after all, and you will read it as others have read 
 it, and as my friends on the other side have read it. You will 
 find before you reach the final disposition of this case that my 
 friends have read it to mean that the mere publication of the 
 order of Justice Gould offends against this decree. You will 
 find that the publication of an urgent appeal for moneys with 
 which to carry on this unequal contest against a great organiza- 
 tion of manufacturing establishments over the country, unequal 
 in the point of ability to get money, as we all know, in which 
 there is only once a reference made to the fact that this decision 
 has been made in the Bucks Stove & Range Company case — 
 that that appeal for funds containing a mere recital of the name 
 pf cpmplainant constitutes contempt of court, a violation of this 
 order. 
 
 They take the editorial which was written and published in 
 the February number of the Federationist, to which I shall 
 refer briefly in a few moments, aimed entirely against the at- 
 tempt to restrain free speech and free press, and not at all 
 against the boycotting provision of the decree, as conclusive 
 evidence of a violation of this order ; and, your Honors, they 
 are right about it. There is no way in which these defendants 
 can speak, write or print the name of the Bucks Stove & Range 
 Company in connection with the American Federation of Labor, 
 whether in an appeal for funds, or by a mere printing of the 
 order, that does not violate the terms of this order, and my 
 friends are justified in claiming that it does violate it in terms. 
 
 That being so, it seems to me that there is no opportunity 
 here for severance, no opportunity for elimination of some por- 
 
 21 
 
tions of this part of the order. As the order then stood, every 
 part of it was so interwoven that all of it must go. It then 
 becomes the duty of the court to say so, even if you should 
 disagree with me — and I do not think you will — when you come 
 to examine what I have already called attention to as to the 
 intent and legal effect of the distribution of that “We Don’t 
 Patronize” list. 
 
 Necessarily you will reach the conclusion that the 
 defendants were wounded and hurt by the injunction 
 and decree of the court, and that they believed that 
 the Court did lay upon them a heavier hand than it had the 
 power to lay upon them. But in that belief your Honors share 
 and have so evidenced by your opinion and decree. So if you 
 find that they give some indications of .smarting under the lashing 
 they have received, you will not hold it against them. Your 
 Honors will say : “That is human nature. These men are 
 engaged in a great battle with others, and if the result of the 
 defeat — inasmuch as it is unjust in part, for that is unjust which 
 is unconstitutional, and they were so advised by their counsel — 
 was to arouse them to strong protest, they should not be punished 
 for that. All we are going to search this record for is to see 
 whether they have undertaken to violate the valid provisions of 
 that decree, which should have been enforced.” 
 
 The next paragraph to which I wish to call your Honors’ 
 attention is the 17th, reading as follows: “Hereafter, to wit, in 
 the February, 1908, number of the American Federationist, said 
 Samuel Gompers in the editorial columns thereof, under his own 
 name, published a lengthy article concerning the said order at 
 pages 98 to 105 inclusive, and the said Samuel Gompers, Frank 
 Morrison and John Mitchell published at pages 112-13 of the 
 said number of the American Federationist what they denomi- 
 nated an ‘urgent appeal’ signed by the defendant Samuel Gompers 
 as President and the defendant John B. Lennon as Treasurer, in 
 the course of which they said that the order was an invasion of 
 the liberty of the press and the right of free speech, and further 
 stated therein that ‘with all due respect to the court, it is 
 impossible for us to see how we can comply with all the terms 
 of this injunction,’ ” and so forth. 
 
 They complain, as a part of this publication of February, 1908, 
 that it published the order of Mr. Justice Gould. I am going to 
 pass that. I think your Honors will not come to the conclusion 
 from the publication of that order that it was published for the 
 purpose of furthering the boycott. Let us stop a moment and 
 see what was the situation when this February number came out, 
 which was on the 24th of January. The defendants had been 
 defeated and unexpectedly defeated. The measure of their 
 defeat was infinitely greater than anything they had ever antici- 
 pated or could have anticipated fairly, I think. From their 
 standpoint the injunction and decree was not the end, but the 
 
 22 
 
beginning of the struggle. They were not unmindful that, in 
 the contest which they were waging and had been waging for a 
 number of years for the purpose of advancing the wages of 
 men to the end that they and their families might have a little 
 more comfort, to the end that their children might be better 
 educated for the responsibility of the citizenship that stands in 
 front of them — they were not unmindful that those who employ 
 labor regretted the advance which had been made, and were also 
 not unmindful of the strength of their foe, Van Cleave, the 
 President of the Manufacturers’ Association. So while they did 
 not expect so drastic an outcome, yet when it came it was clear 
 to them that the battle had but just begun. 
 
 But they had to have moneys to carry on this contest. Their 
 opponent could get funds easily. It is so difficult for the courts 
 to understand how it happens that organizations of capital have 
 such a great advantage over organizations of labor in the con- 
 tests between the two. We can see labor out in the open appeal- 
 ing for expense money for the struggle, because it cannot get 
 it in any other way. On the other hand, we know that alliances 
 of manufacturing corporations do not have to make open and 
 public appeal. They have but to make an allotment of the 
 amount or share each corporation should pay toward any great 
 contest. But labor has to fight in the open, and so sometimes 
 the public mind and occasionally the judicial mind obtains a 
 wrong impression as to which party is the aggressor. It is not 
 accurately advised. It is advised of what the one party is doing 
 in this battle, for of necessity its advancing and charging army 
 can always be seen, but it is not advised of the behind-the-parapet 
 movements of the other army. There was nothing for these 
 people to do but to go openly to work to secure money so that 
 they could carry on this litigation. Hence they made an appeal 
 in the American Federationist of February to labor for voluntary 
 contributions. They do not like to make assessments. It is 
 hard w^ork for their people to bear them, trifling as their assess- 
 ments are, trifling as they would seem to you. Yet it is a 
 burden. So they devised another way. I am not going to stop 
 to read this written appeal, though it is short, but I want to 
 predict that when you come to read it, no one of you will believe 
 for a moment that it ever occurred to any member of the Exec- 
 utive Council signing it, men of character, capacity and ability, 
 to consider the matter in that way. They all signed it, not in 
 rebuke of the court, but in the same spirit in which you acted 
 when as counsel you were contesting before the courts and were 
 occasionally defeated. It begins: “To all organized labor, Greet- 
 ing: Justice Gould of the Supreme Court of the District of 
 Columbia has issued an injunction against the American Federa- 
 tion of Labor and its officers, officially and individually.” 
 
 The next paragraph reads : 
 
 “The injunction invades the liberty of the press, the liberty of 
 speech.” 
 
 23 
 
They thought it was true then ; they know it is true now since 
 your Honors have spoken. It continues : 
 
 “It enjoins the American Federation of Labor or its officers 
 from printing, writing, or orally communicating the fact that 
 the Bucks Stove & Range Company has assumed an attitude of 
 hostility toward labor,” etc. 
 
 Then it refers to the retaining of counsel, the action of the 
 Norfolk Convention, and then says in conclusion: “Because of 
 the necessity to defend the fundamental rights of free speech 
 and free press of the working people today, and which may 
 involve the freedom of the press and the freedom of speech of 
 all our people in the future, we appeal to all unions and union 
 members, and the friends of justice to contribute as promptly 
 and as generously as they can, in order that a legal defense fund 
 may be at the disposal of the American Federation of Labor to 
 defend the rights of labor, and the rights of our people before 
 the courts.” 
 
 Is there any opportunity for anyone to read that and believe 
 that its purpose was any other than it purports on its face? 
 It says, “These contributions of money are to be used on appeal, 
 to the end that the rights of labor and of our people may be 
 defended before the courts.” 
 
 Take the editorial published in that same issue. I refer to it 
 because the learned Justice in the court below attached very 
 much of importance to it. 
 
 Mr. Justice Robb: What is the date of that editorial? 
 
 Mr. Parker: This is of the date of January 24th, although 
 it is the February number. It comes out on the 24th, I think. The 
 editorial is in line with the appeal for funds. It is forcible. It 
 shows a wound, a smart. It is in the original record, page 474. 
 
 Mr. Davenport: You mean the record of the original case? 
 
 Mr. Parker: Mr. Davenport corrects me. It is in the record 
 that was before your Honors. You have really two volumes 
 before you. 
 
 Mr. Justice Van Orsdel : You want us to consider the record 
 in the other case in connection with the record in this case? 
 
 Mr. Parker : Yes ; it is made a part of it. The editorial begins 
 by saying, “this injunction is the most sweeping ever issued. 
 It is an invasion of the liberty of the press and the right of free 
 speech.” 
 
 I want your Honors to note now an assertion that I make 
 and that I am sure will be vindicated as I go along, namely : that 
 you will not find any remark in this editorial that the order 
 exceeds the power of the courts in respect to restraining a boycott. 
 
 24 
 
Mr. Justice Van Orsdel : Just at this point there is something 
 running through my mind, though it may not amount to anything. 
 Assuming for the purpose of argument that none of these things 
 charged constitute technical contempt, standing individually and 
 alone, could there not be a contempt committed, it taking the 
 sum and substance of all these matters, they would bring the 
 order of the court into contempt with the members of the Feder- 
 ation of Labor by innuendo or otherwise? I mean, taking the 
 whole thing together, the sum total. I do not know whether I 
 make myself clear. 
 
 Mr. Parker: I think I do understand you. 
 
 Mr. Justice Van Orsdel : Taken together in that way, the 
 effect, the result, would be to bring the order of the court into 
 contempt with the membership of the Federation of Labor. 
 Would that constitute a contempt? 
 
 Mr. Parker: This is a proceeding to punish for contempt, 
 and the purpose of punishment — the main purpose, the leading 
 one, is to enforce the order (as I read from Judge Taft’s decision 
 but a very little while ago) for the future. The punishment is 
 not so much for that which has happened as it is to assure that 
 the order shall not be interfered with in the future. That is 
 what Judge Taft says in this case which I have quoted from 
 and which I have read to your Honors. It is remedial. It is 
 not in the same class as a contempt of court which is committed 
 in the presence of the court, where one assaults an officer of the 
 court in its presence. That contempt the court punishes at once 
 and summarily. This is a remedial contempt and the court 
 would pay very little attention to it if it were no longer required 
 as a remedy. You will find, when you come to range over the 
 cases of contempt, that there is very little encouragement for 
 punishment unless there is to be a helpfulness to the party prose- 
 cuting the action. That is the purpose of such a proceeding. I 
 have a case in mind now — the Besette case, 194 U. S. in which 
 there is a very interesting discussion of this subject by Mr. 
 Justice Brewer and which tends to bear out my contention. 
 
 If your Honors should come to the conclusion that no one 
 of these acts was in disobedience of the order of the court, then, 
 of course, you could not very well come to the conclusion that all 
 of them together were. If your Honors should say that the 
 editorial and other articles were not written with the purpose 
 of prolonging the boycott — the prevention of which was the 
 object of the decree — your Honors would not be able to say, 
 and you would not feel justified in saying, “We will consider 
 them altogether and therefrom draw the inference of intending 
 to further the boycott.” 
 
 I am going to satisfy you in this case, if I do not first wear 
 you out, that you cannot read these articles through, including 
 this editorial, and believe that there was any other purpose in 
 
 25 
 
view than to explain this situation to the labor organizations in 
 this country, alongside of the urgent appeal to the end that they 
 should furnish the money necessary for them to prosecute the 
 appeal. You will not be able to say, either, when you look at 
 this editorial, that his purpose was to be offensive toward the 
 judge. I do not know that I conveyed my meaning so as to 
 answer your Honor, but I have attempted to do so. He says 
 (continuing to read editorial), ‘‘this injunction is the most sweep- 
 ing ever issued. It is an invasion of the liberty of the press 
 and the right of free speech.” 
 
 Again, he says— and this is the clause to which I ask your 
 Honors’ attention, and I ask your attention to it having in mind 
 the point of view of the defendants, and also having in mind 
 the question, which is : “Was he intending then to disobey the 
 order of the Court?” He cannot be punished for anything else 
 here but disobedience. He says : “With all due respect to the 
 court it is impossible for us to see how we can comply with 
 all the terms of this injunction.” I ask you to rest your minds 
 upon paragraph 6, because his meaning is plain. The next sen- 
 tence shows what he meant. It was not that he did not propose 
 to obey the mandates in this injunction which prevented a boy- 
 cott. You will find nowhere any writing by him or anybody 
 else connected with the American Federation of Labor suggesting 
 that they propose to defy the court on the subject of whether 
 there could be a boycott or not. I will read the sentence so you 
 will see the point of it, because it is the one to which my friends 
 attach so much importance. “With all due respect to the court,” 
 said Gompers in his editorial, “it is impossible for us to see how 
 we can comply with all the terms of this injunction.” He meant 
 to comply with its terms generally, as you will see, because in 
 this very number of the Federationist the name of the Bucks 
 Stove & Range Company disappeared from the “We Don't 
 Patronize” list, and not again from that down to this time has 
 it appeared. 
 
 What is his next sentence? So that there could be no mistake 
 on the part of his readers as to what feature of the injunction 
 he could not comply with he added, “We would not be performing 
 our duty to labor and to the public without discussion of this 
 injunction.” “A great principle is at stake.” Your Honors 
 know that to be so. We can only defend our constitutional 
 rights by asserting them, and if the time ever comes when men, 
 or any class of men, refuse to discuss encroachments upon their 
 constitutional rights, refuse to submit to imprisonment if neces- 
 sary that constitutional rights may be asserted and preserved, 
 then the beginning of the end of our institutions has come. 
 
 Again he says, “There is no disrespect to the judge or to the 
 court when we state with solemn conviction that we believe this 
 injunction to be unwarranted.” He did so believe. It was legiti- 
 mate for him to state it. It was necessary for him to state it if 
 he was to gather together the funds necessary to bear their side 
 of this contest against their vigilant and wealthy opponent. 
 
 26 
 
Quoting again, “The publication of the Bucks Stove & Range 
 Company on the ‘We Don't Patronize’ list of the American 
 Federation of Tabor is the exercise of a plain right. To enjoin 
 its publication is to invade and deny the freedom of the press, a 
 right which is guaranteed under our Constitution.” You may 
 disagree with his conclusions, but you will not disagree with 
 his assertion of the right to express that opinion. Our courts 
 have always welcomed decent, legitimate criticism ; have always 
 welcomed difference of view. The courts of this country have 
 never taken the narrow position that litigant or others cannot 
 challenge their decisions and especially when it is stated that 
 there is no disrespect intended to the judges or the court. He 
 stated again in the course of this long editorial, which I must not 
 stop to read, “in making these statements we are not indulging 
 in unjustifiable or disrespectful criticism of the judge who issued 
 this injunction. We assume that he acted in accordance with 
 the dictates of his conscience and his best judgment.” Is there 
 more than that asked or that can be asked of any suitor, or any 
 citizen? However widely he differs with the court he is able to 
 say, “we assume he acted according to the dictates of his con- 
 science and his best judgment.” How can criticism be more 
 carefully safeguarded against misunderstanding? 
 
 I am not going to read more of this article. I have marked 
 other paragraphs to read, but time is flying and I must omit 
 them with this general statement. There is not any halting here 
 in asserting his position, the position that he believed in. There 
 is no disrespectful allusion to the court in it, as you can see from 
 the two phrases I have quoted. There was no feeling of dis- 
 respect in his mind, as your Honors will see when you come to 
 read this editorial. What was in his mind was that the court 
 had been misled as courts have been before ; that the court had 
 supposed the opponent to be purely a business establishment 
 instead of being as it was through its head a party to a great 
 controversy between labor and capital. And he further felt 
 that the court had been misled as to the scope of the order and 
 had gone too far, and thereupon he wrote this editorial presenting 
 this situation as an aid to an appeal for money that they might 
 come to this court as they did. And his judgment was vindicated. 
 
 I assert, your Honors, without fear of contradiction, that when 
 you come to read this editorial and this “urgent appeal” — I go 
 further, and defy any one to reach the conclusion that the pur- 
 pose in writing either one of them or all three together was for 
 the purpose of defeating the lawful portions of this decree — I 
 feel confident that no honest mind can read those three together, 
 reading them dispassionately for the purpose of ascertaining the 
 motive of writing, and say after he finishes the reading, “their 
 purpose was to further this boycott.” If you reach that conclusion, 
 of course, that will be the end of it. You cannot possibly consent 
 to the ruin of an exceedingly useful life if you come to the 
 conclusion I have stated. 
 
This is an interesting case and a most important one — more far- 
 reaching in its results than any that, I venture to say, has ever 
 been presented to your Honors. We know how ideas grow and 
 spread from little things. We know that socialism is sweeping all 
 over Europe in labor as well as in other circles, and those of us 
 who have kept some little track of the contests within labor organ- 
 izations in this country know that the socialistic element of organ- 
 ized labor is opposed to Gompers and Mitchell and Morrison 
 because the latter believe in the American idea, because they 
 stand for the protection of the flag and the Constitution. So 
 far their reign has been successful. 
 
 But, your Honors, what will be said by the socialistic element 
 who now muster half a million voters, when they learn that 
 for the indulging in what they all believe, as I believe, was 
 absolute freedom of speech, in discussing an offensive part of 
 this order, and for speaking his mind and for speaking it 
 temperately and justly, a year of imprisonment was the penalty? 
 Will socialism grow within the ranks of labor? Will the Ameri- 
 can element of the American Federation of Labor be able to 
 continue their leadership so effectively as they have in the past? 
 Will the growth of sentiment among newcomers to our shores 
 in favor of the protection and strengthening of our institutions 
 and the preservation of our rights as citizens, guaranteed by 
 the Constitution as the very best that has yet been conferred 
 by any government in the history of the world, continue? The 
 questions answer themselves. 
 
 The next finding I shall consider is not referred to in the 
 petition at all, but it is the very first finding which the judge 
 makes in the decree. I shall only spend a moment on it because 
 it is the same matter printed in the Federationist and just con- 
 sidered. Having printed this editorial, the urgent appeal and 
 the order in the American Federationist of February, from which 
 I have been reading to you, they then made a little modification 
 of the “urgent appeal” so as to refer to the editorial and sent 
 the two out, explaining in the “urgent appeal” that the editorial 
 would give the reasons for this “urgent appeal” for moneys. 
 So if you reach the conclusion which I think you must, as to the 
 editorial and “urgent appeal” of the February Federationist that 
 they do not offend against the decree, you must reach the same 
 conclusion as to these papers because they are the same thing. 
 
 The next paragraph to which I ask your Honors’ attention 
 is the 18th, and refers specially to John Mitchell. This para- 
 graph charges him, first, with having caused to be published 
 the “urgent appeal” in the “Mine Workers’ Journal,” and then 
 it presents a resolution which was passed on the 25th of Janu- 
 ary, 1908, at the 19th annual convention of the United Mine 
 Workers. This resolution recites : “Whereas, the Bucks Stove 
 & Range Company of St. Louis, Missouri, have taken legal steps 
 to prevent organized labor in general and the officers and execu- 
 
 28 
 
live committee of the A. F. of U. in particular, from advertising 
 the above-named firm as being on the ‘unfair’ or ‘we don’t pat- 
 ronize’ list, and, Whereas, by the issuing of such an injunction or 
 restraining order as prayed for by above named firm, organized 
 labor will be deprived of one of its most effective weapons, and, 
 Whereas, J. W. Van Cleave, President of the above named firm 
 and also President of the National Manufacturers’ Association, 
 stated that in a few years’ time he would disrupt organized 
 labor, Therefore, Be It Resolved, that the United Mine Workers 
 of America, in the 19th annual convention assembled, place the 
 Bucks Stoves and Ranges on the ‘unfair’ list, and any member 
 of the U. M. W. of A. purchasing a stove of above make be 
 fined $5.00 and failing to pay the same be expelled from the 
 organization.” 
 
 It was charged that thereafter Mitchell caused or permitted 
 the official report of the proceedings to be published, including 
 the foregoing resolution and the action taken thereon in the 
 United Mine Workers’ Journal, and also caused or permitted to 
 be published therein, on January 9, 1908, certain comments upon 
 the appellee and its business for the purpose of violating the 
 injunction of this court, which publication was copied by a large 
 number of other labor papers. 
 
 Mr. Justice Van Orsdel : Was that resolution so adopted and 
 circulated after the injunction? 
 
 Mr. Parker: Your Honors, this resolution was adopted by 
 the Mine Workers’ Convention. You have here the fact merely 
 that John Mitchell was the president of the Mine Workers’ 
 convention, and was presiding at the convention. 
 
 Mr. Justice Robb: Was he presiding when this resolution 
 was introduced? 
 
 Mr. Parker: I want to read your Honors about that because 
 that to my mind is very important. 
 
 Mr. Justice Robb : I suppose he was not responsible for what 
 the convention did unless he participated in it. 
 
 # Mr. Parker: Your Honors, this matter is not answered spe- 
 cifically and yet it is answered as specifically as it could be 
 answered, for the reason, as Mitchell says in his affidavit, and 
 as he said before the Court, he has no recollection whatever 
 about it. I want to read his affidavit because it is stated with 
 great care ; and he was examined by Mr. Davenport subsequently, 
 which examination I have read. There is not any man who 
 knows John Mitchell that would believe he would vary a hair’s 
 breadth from the truth. He has now, of course, temporarily 
 left organized labor to be engaged by the National Civic Fed- 
 eration in its great work. He has been selected for that important 
 work, for which he is so peculiarly fitted. If there was any 
 opportunity to doubt John Mitchell’s word, then of course, you 
 
 29 
 
would have to find that he was at that convention conscientiously 
 presiding at the moment of its passage and made no protest. 
 But he has no recollection of it, and you must bear in mind that, 
 as appears in this record, this man had been very ill before the 
 convention. It is a long convention and the strain is very great. 
 The president while generally presiding is not always presiding. 
 He is stepping from one end of the platform to the other, as 
 you know happens in all conventions, for the purpose of dis- 
 cussing matters. It was not until after these proceedings were 
 instituted that the matter ever came to his attention; not until 
 then did he know that any such resolution had been passed. It 
 is easily understood. Unless objection is made there is no vote. 
 The chair simply says, “If there is no objection the resolution 
 will stand adopted.” So the mind of the president may be occu- 
 pied with other matters, or if ill, may be resting — until some 
 one objects. Then he pays strict attention. Without conscious- 
 ness of the character of the resolution it was passed in his pres- 
 ence. Nor was he responsible for its publication in the Mine 
 Workers’ Journal. His evidence is that he had not anything 
 whatever to do with it. He did not know anything about it. 
 Your Honors, there is nothing here, there is nothing anywhere 
 in this record, to justify or permit anyone to doubt John 
 Mitchell’s statement. 
 
 Mr. Justice Van Orsdel : Who is the person in charge of 
 that publication? 
 
 Mr. Parker: They have an editor. 
 
 Mr. Justice Van Orsdel: And Mr. Mitchell had nothing to do 
 with the writing? 
 
 Mr. Parker : He had nothing whatever to do with the writing. 
 
 Mr. Darlington : But he appoints the editor. 
 
 Mr. Parker: But he did not appoint him every day. That 
 is the attitude which our people have had to meet throughout 
 this case. They say he appointed the editor, which is something 
 he might have done about a year before, and therefore you 
 should hold him for it, you should send him to jail for a year, 
 this man whose character is not inferior to that of anyone 
 connected with this case, whose standing is not less, and whose 
 influence is greater. 
 
 Mr. Justice Robb: Does the record show the editor submits, 
 or is, under the practice then obtaining, required to submit 
 matter to Mr. Mitchell? 
 
 Mr. Parker: Nothing of the kind, and it stands alone here, 
 so far as I know, in the record. I remember reading a statement 
 by the editor which I do not think is in the record. There is 
 nothing so far as I now recall. Am I right, Mr. Ralston? 
 
 30 
 
Mr. Ralston : You are entirely right, and he did not see this 
 particular publication until months after. 
 
 Mr. Parker : Here is his affidavit and it is made very care- 
 fully. It states that he took no active part whatever in causing 
 the matter of the boycott of the petitioner to be submitted to the 
 convention, and until the matter was brought to his attention 
 by the filing of the petition herein he did not know that the subject 
 had been acted upon by the convention referred to; that he had 
 nothing to do with the publication of the extracts referred to in 
 the United Mine Workers’ Journal of January 9, 1908, and that 
 his first knowledge with relation thereto was obtained after said 
 publication was made; that he did not authorize or sanction the 
 publication in any way; that it is possible that the publication 
 referred to was followed by other newspapers throughout this 
 country, but that this respondent neither directly nor by asso- 
 ciation with others, had connection with any of the publications 
 named in the petition. 
 
 Your Honors, this was followed by his voluntarily appear- 
 ing and being put on the stand and examined, and his testimony 
 stands uncontradicted, and it would be strange indeed, would 
 it not, if John Mitchell, with his caution, should do that one 
 act and that alone? There is not anything else in these findings 
 or in this record, claimed to be against John Mitchell except 
 this editorial, which does not refer at all to the “We Don’t 
 Patronize” list. There is not anywhere in this record a sen- 
 tence that suggests that after that injunction order took effect 
 by the giving of that bond, anyone ever again undertook to 
 threaten or coerce anyone who dealt with the Bucks Stove and 
 Range Company. 
 
 I challenge anyone to read the findings to which I have re- 
 ferred, and read them in the light of the circumstances to which 
 I have directed your attention, and reach the conclusion that 
 the purpose was to further the boycott. On the contrary, the 
 boycott was treated by them as dead when he eliminated the 
 “we don’t patronize” list, which he did in the very first edition 
 after the injunction order. Never again did it appear. 
 
 Your Honors, they have not been able to put their hand on any 
 overt act, anything said or done, by these defendants furthering 
 a boycott, and that fact is supplemented by this other most im- 
 portant one, that with all the searching made throughout this 
 country, hunting for every little thing, finding out what de- 
 fendant said in speeches in Chicago, New York, and elsewhere, 
 they have not been able to bring to your Honors evidence of 
 an act on the part of the subordinates even, since the injunction 
 order took effect, which constituted a menace or a threat against 
 anyone who should see fit to purchase of the Bucks Stove & 
 Range Company. I am going to pass the rest of this article 
 with the comment already made. 
 
 Referring to the publication in the United Mine Workers’ Jour- 
 nal of January 9 of the resolution of the convention just consid- 
 
 31 
 
ered, I should say that the affidavit I have read covers it. Mitchell 
 knew nothing about it. He never had anything to do with it. He 
 was not there where this journal was being published. He did not 
 read it at the time. He was away from the place of publication 
 at the time and had nothing whatever to do with it. 
 
 Mr. Justice Robb: Does the introduction of that resolution 
 and the publication of that article constitute the basis for the 
 judgment against Mitchell? 
 
 Mr. Parker: I should say that there is nothing else whatever 
 upon which there is any opportunity for debate. It is true that 
 the trial judge in the first place finds him responsible for this 
 editorial, and of course he is legally responsible with Gompers 
 for that editorial, and the urgent appeal for funds. That ap- 
 peal was signed by him and was signed by all the other mem- 
 bers of the Executive Council, and by inference the editorial 
 was made a part of the “urgent appeal.” They could not hope 
 to get money enough to make a fight unless they sent out that 
 appeal. For the editorial he was therefore probably responsible. 
 You will find on the top of page 639 the “Urgent Appeal” and 
 the finding is that on the 24th day of January, 1908, while the 
 injunction pendente lite was pending, they sent out certain 
 “papers.” Those “papers,” which I have referred to already — 
 consisted of the editorial of February and the “urgent appeal” 
 for funds, the editorial being attached to the urgent appeal which 
 was signed by all the members of the Executive Council and 
 then sent out in order to raise funds. Those are the papers there 
 referred to. It seems to follow, therefore, that Mitchell is 
 equally responsible for these papers with Gompers and with Mor- 
 rison. 
 
 But your Honors will find when you come to read them that 
 they do not offend against the legal portion of the order. And 
 further that no court has the power to restrain the writing or 
 publishing of anything therein contained. Again, he finds that 
 Morrison and Mitchell are guilty of the acts charged in para- 
 graphs 17 and 26 of the complaint. 
 
 Paragraph 17 is the one to which I have already brought your 
 attention. That is practically the same thing as the publication 
 of the editorial and the urgent appeal in the American Federa- 
 tionist. I think the other was the sending out of the urgent 
 appeal for funds and the editorial attached to it to the various 
 members of their labor family, and is the one to which I have 
 just referred you. Those are the only findings of fact which 
 are charged as against John Mitchell. I would say with confi- 
 dence that as to the editorial and the urgent appeal, there is no 
 opportunity whatever to punish for those because they do not 
 violate the spirit, nor are they intended to violate the spirit of 
 the injunction, nor to assist in the boycott. Nobody can conclude 
 otherwise from their reading. It finally comes down, so far 
 as Mitchell is concerned, to the action or rather non-action on his 
 
part at the convention to which I have just called attention. 
 With all this man’s character behind his careful statement, with 
 nothing in the record or otherwise to contradict the impression 
 he would produce that he was not then conscious of the resolu- 
 tion or its character, his statement must be accepted, it seems 
 to me. I urge you to accept it because its source is a guarantee 
 of its truth. If he had taken part in it directly or indirectly it 
 would have been absolutely inconsistent with everything else 
 that he did. It is indeed passing strange that his non-action in 
 that convention should be the one thing upon which they » at- 
 tempt to build his ruin and his incarceration for nine months. 
 
 The 19th paragraph refers solely and alone to an editorial 
 written by Mr. Gompers. Your Honors, this is an editorial 
 squib which appears between the editorial and the signed state- 
 ment, but neither the editorial nor the signed statement had 
 anything to do with the Bucks Stove case. The editorial related 
 solely to the Hatters’ case and the discussion of the Hatters’ 
 decision. The Bucks Stove case was not referred to in that 
 editorial from beginning to end. Then the statement signed by 
 Samuel Gompers follows close after this squib, which appeared 
 between the two, and that related to the same subject. Neither 
 one of them had anything to do with this subject. Tet me read 
 it. It is just as you find little squibs sometimes on editorial 
 pages. It is at the bottom of page 17 of the record. “It should 
 be borne in mind that there is no law, aye, not even a court 
 decision, compelling union men or their friends of labor to buy 
 Bucks stoves or ranges ; no, not even to buy a Toewe hat.” This 
 was in March, 1908. 
 
 I need not say to your Honors that this is good law. I read 
 almost that very language in the opinion of Mr. Justice Robb, 
 and I take it it is sound law. I pass it with the observation that 
 the statement is true and permissible; and renewing, but not 
 repeating, the argument already made, that if it can be said 
 to be in violation of any portion of the order, so much of that 
 order as it relates to is void. But your Honors, in asserting 
 this he made a mere statement of fact. The contest was still 
 on. They had not raised the needed moneys yet. They could 
 not drop this subject in a moment; they could not treat this as 
 a dead case. They had stopped the boycott as they were com- 
 manded. They were obeying the spirit of the injunction. The 
 boycott was no longer being prosecuted, Mr. Gompers so testi- 
 fied. They could not abandon consideration of this subject. 
 They could not fail to keep the matter alive. Put yourself in 
 their place. That is a fair test for a judge where he can do it. 
 What would you do if you were attempting to carry on a fight 
 which you believed was absolutely right and you had to have 
 money to do it? I will not attempt the answer which I am sure 
 you will make. No man should be punished for contempt who 
 asserts merely that which he has a right to assert and for the 
 assertion of which the Court had no right to previously restrain 
 
 33 
 
him. If by any possibility it could be done it ought not to be 
 done when, as you will know, after the examination of every 
 one of these matters, that his purpose, after all, was to raise 
 funds to carry on this contest. 
 
 That is all there is of which fault is found in paragraph 
 19. But it has been solemnly found as a finding, and constitutes 
 a part of the foundation upon which the court has based its 
 determination that defendant must suffer. 
 
 The next is the 20th, practically the same thing as the 19th. 
 This is an editorial published in April, and it says : “The tem- 
 porary injunction issued by Mr. Justice Gould in the Court of 
 Equity in the District of Columbia in the Bucks Stove and 
 Range Company of St. Louis against the American Federation 
 of Labor, its officers and all others, has been made permanent. 
 The case will now be carried to the Court of Appeals of the 
 District of Columbia/’ So far a mere recital of a fact of great 
 interest to the readers of this magazine. The learned justice 
 below seemed of the opinion that Gompers ought to be punished 
 for it, and he finds it as one of the important acts justifying 
 punishment. And it is part of the matter that my friends think 
 he should be punished for publishing. Again the article con- 
 tinues : “It should be borne in mind that there is no law, aye, 
 not even a court decision, compelling union men or other friends 
 of labor to buy a Bucks stove or range ; no, not even to buy a 
 Loewe hat.” And in the official column of this issue, over their 
 signatures, appears this: “Bear in mind that an injunction issued 
 by a Court in no way compels labor or labor’s friends to buy 
 the product of the Van Cleave Stove and Range Company of St. 
 Louis. 
 
 “Fellow workers, be true and helpful to yourselves and to 
 each other. Remember that united effort in cause of right and 
 justice must triumph.” 
 
 It was said in one of the opinions of this Court: 
 
 “I conceive it to be the privilege of one man or a 
 
 number of men to individually conclude not to patronize a certain 
 person or corporation. It is also the right of those men to agree 
 together and to advise others not to extend such patronage. That 
 advice may be given by direct communication or through the 
 medium of the press, so long as it is neither in the nature of 
 
 coercion or a threat. No one doubts, I think, the rights of the 
 
 members of the Federation to refuse to patronize employers 
 whom it regards as unfair to labor. It may procure and keep a 
 list of such employers, not only for the use of its members but 
 as notice to other friends that the employers whose names appear 
 therein are unfair to labor. This list may not only be procured 
 and kept available for the members of the association and its 
 friends, but it may be published in a newspaper or series of 
 papers. To this extent they are within their constitutional 
 rights, at least where a court of equity cannot intervene.” As 
 
 34 
 
the Chief Justice said, “this being lawful for one person . to do it 
 does not become unlawful for two or more persons, impelled 
 by like motive, voluntarily agreeing to do the same thing, 
 consequently the persons composing the officers of the American 
 Federation of Labor had a legal right to agree together not to 
 purchase the goods of the Bucks Stove & Range Company, and 
 to refuse to purchase those goods does not constitute a boycott 
 in the legal sense.” 
 
 This is no new doctrine. As was said by Judge Caldwell in 
 Ames vs. the Union Pacific Railroad Company, “organized 
 labor is organized capital. It is capital consisting of brains and 
 muscle. If it is lawful for the stockholders and officers of a 
 corporation to associate and to confer together for the purpose 
 of reducing the wages of its employees, or of devising other 
 means of making their investments more profitable, it is equally 
 lawful for organized labor to associate, consult and confer with 
 a view to maintaining or increasing wages.” 
 
 On this subject of the organization of labor no one has spoken 
 more clearly or acceptably than Judge Taft in the case of Thomas 
 vs. Cincinnati, where he says : 
 
 “Now, it may be conceded in the outset that the employees 
 of the receiver had the right to organize into or to join a labor 
 union, which should take joint action as to their hours 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 where dealing singly with rich employers, be- 
 cause 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 are below 
 market prices is one of the legitimate objects of such an organ- 
 ization. They have the right to appoint officers who shall advise 
 them as to the 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.” 
 
 Paragraph 21 relates to remarks made by Mr. Gompers 
 on the 19th of April in the course of a public address to a large 
 gathering of working people in the city of New York. Mr. 
 Gompers does not deny making this speech. How they got it 
 and whether it is accurate or not of course he cannot tell, but 
 that he made a speech of that general character and made it 
 extemporaneously and made it on April 19th he knows is true. 
 Whether he made it word for word he does not know, but he 
 does not deny it because he does not know. There is not any- 
 thing in it that he has occasion to deny. “They tell us,” he said 
 
in this speech, “that we must not boycott. Well, if the boycott 
 is illegal, we won’t boycott.” That is what he told these people. 
 He did not tell them to go on and boycott. Of course Mr. 
 Gompers’ idea then of the possibilities of what was meant by this 
 decree as to boycott is very different from what his idea is now 
 after hearing the opinions of this Court, from one of which I 
 take this: “From this clear distinction it will be observed that 
 there is no boycott until the members of the organization have 
 passed the point of refusing to patronize a person or corporation 
 themselves, and have entered a field where by coercion and 
 threats they prevent others from dealing with such persons or 
 corporations.” I fully agree with this distinction. So long as 
 the American Federation of Labor and those acting under its 
 advice refuse to patronize the complainant, the combination had 
 not arisen to the dignity of an unlawful conspiracy or boycott. 
 
 It is therefore the boycott thus defined with which we are here 
 dealing and not the events that led to it. Hence all that can be 
 restrained are the acts which constitute the boycott. I shall not 
 stop to read that article your Honors. I submit it to 
 you. You will not find anything in it inconsistent with the state- 
 ment, “well, if the boycott is illegal we won’t boycott.” There is 
 a discussion about boycott. It is a rambling talk. He tells them 
 where the word “boycott” comes from. But you will see from 
 the beginning to the end of it there was no design whatever to 
 stimulate the boycott, to assure anybody that a boycott was on, 
 to help on a boycott, or to affect, directly or indirectly, the 
 result otherwise than it should stimulate the people there possibly 
 to contribute toward carrying on the contest. 
 
 Thereupon, at 12.30 o’clock p. m., the Court took a recess 
 until 1 o’clock p. m. 
 
 AFTER RECESS. 
 
 Mr. Parker : If your Honors please, before I take up the 
 subject under discussion, I want to refer to a motion that our 
 friends have made here and to express my views concerning it 
 very briefly. I have not seen the moving papers, but I understand 
 that they have made a motion to dismiss the appeal, on the 
 ground that it is not appealable. It has seemed to me that 
 that was true, at the time of Lamon vs. McGee, 7th Mackay, 
 447 ; but since that time came the code, which relates specifically 
 to the District of Columbia. Your Honors know all about it; 
 but inasmuch as the motion is made, you will excuse me for 
 referring to it. Section 226 provides : 
 
 “Jurisdiction — Any party aggrieved by any final order, judg- 
 ment, or decree of the Supreme Court of the District of Colum- 
 bia, or of any justice thereof, including any final order or 
 
 36 
 
judgment in any case heard on appeal from any justice of the 
 peace, may appeal therefrom to the said Court of Appeals and 
 upon such appeal the Court of Appeals shall review such order, 
 judgment or decree, and affirm, reverse, or modify the same as 
 shall be just, except as provided in the following sections” — 
 which do not apply. 
 
 Any party aggrieved by any final order — this is a final order. 
 There are cases in which orders in contempt proceedings are 
 spoken of as intermediate orders. Under the Federal practice, 
 those were orders where the proceedings were instituted upon a 
 trial, and before a decree is entered. This final decree, which 
 your Honors will review, was entered, appealed from and dis- 
 posed of independently of these proceedings. This proceeding 
 was instituted after a final decree and not before, and after its 
 appeal. It is a proceeding instituted upon the petition of the 
 Bucks Stove & Range Company, and is a separate and inde- 
 pendent proceeding. In the State of New York it would be 
 known as a special proceeding. The order by which it was 
 disposed of was a final order, in that proceeding. It stands 
 alone and is prosecuted to the end by itself, entirely independent 
 of the other proceeding. It is an independent proceeding grow- 
 ing out of the so-called attempt to enforce a decree in the equity 
 action and the order which is entered in it is just as final and 
 appealable under this section as the final decree which was en- 
 tered in the case of the Bucks Stove & Range Company against 
 Gompers, et al. 
 
 Since the adoption of the code there have been three appeals 
 to this court from such final orders. In one case there was an 
 appeal and a writ issued in addition, but in the other two cases 
 there was a direct appeal to this court and a review by this court, 
 and in one instance a reversal by this court, and in the others 
 there was a confirmation. 
 
 It may be said that the question was not argued before this 
 court, that no one raised the question of jurisdiction. I do not 
 understand that anyone has to raise the question of jurisdiction. 
 A court never assumes jurisdiction simply because some one does 
 not raise the question. If the court has not jurisdiction, it does 
 not take it, no matter whether there is objection to it on the part 
 of counsel or not. So that these three cases stand here as 
 precedents, which guided my associates in determining whether 
 or not an appeal should be taken, and which guided the judge 
 below who undertook to allow an appeal to this Court. It does 
 not occur to me that the allowance of the appeal adds anything 
 to it, nor does the fact that, as a part of this decree, there was 
 an allowance of an appeal. There is no protest against it by 
 the learned attorneys for the petitioner, and it must have been 
 assumed by a common consent of judge and lawyers, no objection 
 being made, that it was reviewable in this Court, and that the al- 
 lowance of the appeal was proper. This action neither added to, 
 
nor took away its appealability. While there is a right to the 
 allowance of an appeal in certain cases, given by this same sec- 
 tion, this particular case is not covered by it, for appeal is a 
 matter of right in case of final action. There was an appeal 
 taken directly, so that the allowance of it neither adds to it nor 
 takes from it. That order is appealable, under this section, be- 
 cause it is a final order. It seems to me it must be conceded to be 
 a final order in an independent proceeding, and that is an end of 
 the matter. 
 
 I have now concluded a review of the findings against these 
 defendants, Gompers, Mitchell and Morrison. I have referred to 
 everyone of them except one, and in that one there is no specifica- 
 tion of acts done or omitted. That paragraph brings up again 
 the question which your Honor was good enough to put to me 
 in the course of the argument. 
 
 No. 26 is a finding in effect, that they, the said Samuel Gompers, 
 Frank Morrison and John Mitchell, knew about this order. 
 Then follows the substance of the order in its entirety, and 
 then the paragraph concludes : 
 
 “Yet, by the acts, means, devices and subterfuges aforesaid, 
 the said Samuel Gompers, Frank Morrison and John Mitchell 
 have designed and sought to continue in force and effect, and 
 have continued in force and effect, in wilful disregard, violation, 
 disobedience and contempt of the aforesaid order and decree 
 of this Court, the boycott against petitioner, and the conspiracy 
 recited in the bill to destroy its business, which they and the 
 other defendants have been and are by said order and decree 
 restrained and enjoined from continuing.” 
 
 Of course we had no chance to meet, in this case, anything 
 except that which was specified. It was impossible for the 
 defendants, in the hearing before the Master, to bring out any 
 evidence upon subjects which they did not know anything about. 
 They have specified in the petition the matters and things of 
 which they complain, and every single one of them which occurred 
 after the making of this order. I have discussed, in your 
 Honors’ hearing, every single one of them, about which evidence 
 was given. They were the subjects of controversy. If there 
 were any other things that were the subject of controversy here 
 we do not know of them and did not know of them. 
 
 If what I have stated in your Honors’ hearing is well taken, if 
 I have shown to your Honors, that no one of these specifications 
 in the complaint, which I have treated, will support an adjudica- 
 tion of contempt of court, then your Honors certainly cannot hold 
 that my clients can be found guilty of contempt and be ruined, 
 upon something they have not had a chance to meet. That cannot 
 be possible, after a court makes a finding of fact upon everything 
 that was tried in a case, in which guilt must be proved beyond a 
 reasonable doubt, after defendants have met every allegation of 
 
 38 
 
fact, after they have shown that not one of those allegations would 
 support an adjudication of contempt and a conviction for it and 
 punishment under it; and when, as we all know, the law is that 
 before any man, either by trial before a jury for an offense against 
 the criminal law or on a trial before a court for violating its de- 
 cree, can be convicted and incarcerated he must have 
 an opportunity to be heard and an opportunity to present his 
 evidence in opposition to the claims that are made against him, 
 and have it established beyond a reasonable doubt that he was 
 guilty of some one of the charges which constitute the contempt. 
 
 So I pass this final finding with the assertion that if your 
 Honors shall reach the conclusion we have urged, that contempt 
 cannot be supported upon any specific allegation here, your 
 Honors certainly never will hold that Gompers, Mitchell and 
 Morrison or any one of them can be sent to prison on a general 
 allegation, as to which they never had an opportunity to be heard. 
 
 The indisputable facts of this controversy settled, principles 
 and the authorities cited, it seems to me, conclusively establish 
 that the appellants, each of them acting separately, and all of 
 them acting in combination, and the American Federation of 
 Labor, and every organization composing the American Federa- 
 tion of Labor had and have, subject only to liability by civil 
 action or criminal procedure after the course of the common 
 law the fullest liberty to speak, write or print anything he, they, 
 or it may see fit in disparagement of the Bucks Stove & Range 
 Company, its products, its method of business and its treatment 
 of its employees ; to refuse to patronize that Company themselves, 
 and to dissuade others from doing so ; and that no Court has the 
 power by any sort of process to abridge one jot or title of this 
 liberty of speaking and freedom of printing or in anywise to 
 interfere with the attitude or conduct of the appellants, the 
 American Federation of Labor and its constituent bodies so 
 long as none of these things is, nor all of them together are, 
 such as to tend to coerce or intimidate and so prevent other 
 persons or corporations from dealing with that Company. But 
 there is not a particle of testimony in the entire record that 
 either of these defendants spoke, wrote, printed or circulated 
 one word or committed one act, or advised others to do so, 
 threatening, intimidating or coercing any person, body, or firm in 
 respect of their or its dealing with the Bucks Stove & Range 
 Company subsequent to the injunction. 
 
 I felicitate myself on the privilege of appearing before this 
 high tribunal in behalf of men who have dedicated, aye (and I 
 speak with knowledge of the subject and with the calmness of 
 knowledge), consecrated their talents, faculties and powers to 
 what they deem a sacred cause. They are prepared and willing 
 if need be, to suffer in that cause; yet they would not mock the 
 martyrdom which is the seed of great and successful establish- 
 ments by courting it; nor would they escape it by suing for 
 
 39 
 
favor. They are not before this Court as supplicants. They are 
 here appealing from injustice and demanding, with the pro- 
 foundest respect, but with equally profound conviction, the 
 undoing of wrong. These are not the vain words of the advocate 
 
 seeking to win the case of his client. They are but the echo 
 
 a feeble one — of the high yet humble spirit of the unpretending 
 men for whom I am privileged to speak. Above all, the men 
 for whom I speak are law-respecting. I would fail to represent 
 them if I were not to speak as I do. When the final word has , 
 been spoken, if it shall condemn them, they will cease their 
 contest, with the same calmness and dignity as that which char- j 
 acterized their responses to the question, “What have you to 
 say why sentence shall not pass ?” Again I am uttering no 
 empty words of a mere advocate, I am speaking whereof I 
 know. 
 
 If then, these appellants shall be incarcerated and this great 
 organization of two millions of men of the bone and sinew of 
 our country, shall be deprived of their leadership and counsel 
 in their efforts at moral and social as well as material uplift, it 
 will be simply and only because they have dared to use their pens 
 and to lift up their voices in protest against what they and many I 
 jurists and statesmen, and civilians in other, the highest, walks 
 of life, deem an invasion of a right without which there cannot , 
 long exist government by the people, for the people. 
 
 It is high time for lawyers in the forum and on the bench 
 to hark back from the wilderness of construction and words 
 of art to the plain road of the Constitution and its simple signs ; 
 and know and advise and authoritatively announce that within j 
 every inch of land and water covered by the flag and under the 
 government of these United States any and all persons, singly or . 
 in whatever combination or association may freely speak, write, : 
 print, publish and circulate whatever sentiment he pleases about 
 any person or body, or association; the Government (State or: 
 Federal) and any of its departments; the character, conduct andi 
 methods and practices of any of the officials, members, or in- 
 cumbents; that this liberty is so absolute as to be beyond exec-' 
 utive, legislative, or judicial power by any means, or form of 
 process, to previously restrain, or limit the exercise of this right 
 to so speak, write, etc., or by any refined distinctions between the 
 exercise and the abuse of liberty of speech and freedom of the 
 press — distinctions always affected by the personal equation so 
 that no definite rule of guidance in regard to them can be formu- 
 lated. No such qualification can be found in the organic law 
 nor can any such be brought into the Constitution from the tree 
 of construction and engrafted upon it by legal skill. The Con- 
 stitution was framed by men of sound learning and education, 
 and, so, especially in respect of its great cardinal principles | 
 touching of personal rights, in plain language, intending to be: 
 understood and applied by persons of fair intelligence, according 
 to its ordinary acceptation. Hence when the citizen of ordinary. 
 
 40 
 
intelligence reads that “every one may freely speak, write, and 
 print his sentiments on any subject; being responsible for the 
 abuse of that right,” he rightly understands that he exercises 
 this privilege subject to liability for damages or to penalty, to 
 be ascertained and adjudged according to the usual course of 
 action for damage or prosecution for crime. And this organic 
 provision is an invincible protection against any attempt by any 
 court or Judge, through any form of procedure or process to 
 previously limit the exercise of this right and then fine or im- 
 prison him if in the opinion of another citizen who happens to 
 wear the ermine he has transgressed that limit. Subject only 
 to this liability any citizen or association of citizens may assail 
 or traduce any other person or association (for whatever pur- 
 pose associated) in the severest, and even vilest terms, and 
 without a shadow of excuse, and may warn the public against 
 him or them or it — against recognizing, associating, patronizing, 
 or in any wise, dealing with such person or association; and he 
 may induce as many as he can to join with him — all this he, 
 alone or in combination, may do under the aegis of the Consti- 
 tution — so long as I and those who join me go not so beyond 
 the expression of sentiment or opinion. No Court or Judge 
 can impose any previous restraint. No other deterrent is 
 available than a judgment for damages or of penalty in a criminal 
 proceeding according to the ordinary course. 
 
 .If from this free expression of sentiment there should ensue 
 injurious consequences to the defined rights of others, or de- 
 fined offenses against the person, or against property, or justice, 
 or reputation, still, the expression of such sentiments cannot be 
 suppressed or prevented. To the extent that they shall have 
 identified the author with the wrong or offense, as an ultimate 
 factor he must respond to a civil action, or a criminal prosecu- 
 tion, according to the usual course. In no other way can he be 
 reached. That is liberty and is not a license. Any other view 
 involves inevitably a censorship. 
 
 The question involved is of such universal and paramount 
 interest and so affects every citizen and every interest that I 
 feel compelled to go on. It is of no moment that the journal 
 in question is the official organ of the American Federation of 
 Labor. The soundness of the decision and the opinion of the 
 presiding Judge, comments upon which is almost the entire basis 
 of the sentence appealed from, is a legitimate subject of dis- 
 cussion by any current publication in the land, whether it be 
 an organ of the Manufacturers’ Association, of the Meat Packers, 
 the Grangers, the Steel Trust, the Dairy Farmers, Live Stock 
 Dealers, or of the Federation of Labor. The decision and the 
 opinion are public property. It may be said that one of the 
 purposes of publishing them is that they may be the subject of 
 discussion for the enlightenment of the people. 
 
 Of course, scurrilous, or scandalous matter or such matter as 
 attacks the Court personally or impugns its motives or the 
 
 41 
 
motives of its Judge or Judges is reprehensible and not intended 
 in any sense to be urged as the right of a public journalist. 
 
 But outside and beyond all this there is a realm as expansive 
 as God’s air, as boundless as the sea, from which no public 
 organ representing any sentiment or shade of sentiment can 
 be excluded in the discussion of questions in which the public 
 or any considerable portion of it is concerned. 
 
 The right of the laboring population to organize for the pro- 
 tection and advancement of its interests is a public question 
 and one which presents itself as one of the factors in labor 
 disputes with capital, and for that reason becomes a public and 
 political question of the first magnitude. 
 
 It is freely admitted that the action of the Court within its 
 jurisdiction and not in excess of its power is sacred until 
 reversed or modified by a Court of Review. 
 
 But the principles involved in the consideration of the ques- 
 tion by the Court is a matter of public concern and public 
 interest, are still open to fair and full exhaustive discussion and 
 consideration by a public journal, and especially by a public 
 journal devoted to the interests and representing the sentiments 
 of a part of the people peculiarly interested in that question. 
 
 The question of the right of members of a particular organ- 
 ization or other citizens of the United States friendly to that 
 organization to buy or not to buy the products of the Bucks 
 Stove Company for the reasons given by the organ of that 
 organization or for any reason is not concluded; it is, it seems 
 to us, a question presenting itself exclusively to the consideration 
 of the individual himself. The organ which represents his 
 views, or which even without representing his views, is the 
 acknowledged standard of literature and sentiment of his organ- 
 ization, is no more debarred from the discussion of the reasons 
 for and against such action or of the power of the Court in 
 that particular than would be the privilege and duty of any of 
 the organs we have named, if its constituency were affected, or 
 of any of the great organs of public sentiment discussing the 
 feasibility of the United States Government entering into the 
 project of building the Panama Canal or constructing a great 
 international highway or subsidizing a merchant marine or con- 
 structing a great navy. 
 
 It is no answer to this view to say that the publication and 
 discussion of these views injure the business of the plaintiff 
 and are calculated to diminish its receipts or even ultimately 
 to destroy it. Every man, every business, every occupation, 
 business and profession exists only in the breath of the good 
 will of its constituency. If any business or profession delib- 
 erately assumes a hostile attitude toward any part of the great 
 body politic it must necessarily assume as part of that hostility 
 
 42 
 
the loss of the patronage and good will of the particular element 
 which it has seen fit to antagonize. That is a mere incident of 
 life and business. 
 
 The guarantee of freedom of speech and the freedom of the 
 press as contained in Article 1 of the Federal Constitution would 
 be a mere dead letter if an injunction would control or suppress 
 the expression of the opinions of a journal representing any 
 part of the public, or a constituency however small. 
 
 The American Federationist would be untrue to itself, untrue 
 to the great profession of public journalism, untrue to consti- 
 tutional liberty and its own convictions of freedom both of 
 conscience and of the press and to its own particular and great 
 constituency if the spirit of servile fear and humiliation it 
 should refrain from a free, fearless, honest and undaunted dis- 
 cussion of the questions involved. 
 
 This it has done. 
 
 This it was entitled to do. 
 
 This it ought to have done. 
 
 Your Honors, I have finished. I thank you for your courtesy. 
 I submit, with confidence in your wisdom and your love of jus- 
 tice, not only the case of my clients but the case of the two 
 millions of people who stand behind them. 
 
 ARGUMENT OF J. J. DARLINGTON, ESQ., 
 
 On behalf of the appellee. 
 
 Mr. Darlington: May it please the Court, the facts out of 
 which this case grows, or rather the facts of the litigation out 
 of which this case springs as a collateral proceeding, are so 
 fresh in the minds of the Court that I am sure I need not expend 
 very much time in recapitulating them. 
 
 There was filed in the Court below a bill, in December of 
 1907, alleging that the defendants, including these appellants, 
 had entered into a conspiracy to do certain things, embracing 
 all the things that were subsequently included in the injunctions. 
 
 It is not claimed here, and it cannot be claimed, that the 
 injunctions embraced anything which was not specifically set 
 out in the bill, or as to which an injunction was not specifically 
 prayed, because you will find, by comparing them that the injunc- 
 tions are in the very language of the prayers of the bill for 
 relief. 
 
 We have, therefore, the case of a bill filed in a Court of 
 general jurisdiction, against persons who are served with process 
 and who appear and answer, alleging that certain acts in the 
 
 43 
 
nature of a criminal conspiracy were being prosecuted by those 
 defendants, and that the complainant claims a writ of injunction 
 against those acts. 
 
 Did that bill present a case of jurisdiction? Of jurisdiction 
 of the person — yes; because the persons were personally served 
 with process, they personally appeared and answered, and they 
 did not, at any stage of the case, claim that the Court was 
 without jurisdiction. 
 
 Of jurisdiction over the subject matter — yes, because it was 
 simply an ordinary case of an injunction sought against acts 
 alleged to be illegal, to the detriment of the plaintiff and which 
 involved irreparable injury. 
 
 Before I proceed with the case, in the order in which we have 
 decided to treat it, let me reply to a few of the observations 
 of the distinguished gentleman who presented the case for the 
 appellants. He states that this is a case seeking the imprison- 
 ment of three very excellent gentlemen at the request of a 
 private suitor, at the request of the appellee in this case. 
 
 Is that correct? Surely a private citizen has a right to the 
 benefit of a decree of a Court which he has obtained, and that 
 he has assumed the position of the complainant in this case 
 could amount to nothing more than saying to the Court : “You 
 have granted me a decree for relief, and that decree is being 
 disregarded. I ask that a rule be issued against the persons who 
 are disregarding it, to show cause why they should not be 
 attached for contempt.” There is no request for imprisonment. 
 There is no request for or indication of any particular kind 
 of punishment which shall be meted out, if the parties are 
 guilty. There is simply an ordinary application, and the only 
 application which an injured party can make, asking that these 
 parties shall show, or have an opportunity of showing, whether 
 they are not violating the decree, and if so, why the Court 
 should not deal with them as people are dealt with who violate 
 decrees of the Court. 
 
 Next — and I was very much surprised to hear this — the Court 
 is told that this sentence of imprisonment should be set aside 
 because of the character of these appellants. Far be it from 
 me to say anything whatever in derogation of the personal 
 character of any one of these defendants, or to detract anything 
 from the eulogium which my distinguished friend has passed 
 upon them. That is a matter which I conceive is not before the 
 Court, for any purpose. 
 
 I understand that all men stand free and equal before the bar 
 of any court, and that the vice-president of the civic federation 
 has no more immunity, in disregarding the decree of a court 
 than the humblest citizen in the land. I understand that a gen- 
 tleman who has enjoyed the distinction of being sent abroad to 
 study industrial conditions there — assuming all of these things 
 
 44 
 
to be true, although there is not a word of evidence in the record 
 in regard to them — has no greater immunity for deliberately 
 and defiantly disobeying an injunction of a court, saying at the 
 time that he disobeyed it, that he did so with the intention of 
 disobeying it, and that he would rather go to jail than obey 
 it, than is possessed by the humblest citizen. I say I find no 
 principle in the law, and certainly expected to find no advocate 
 in the person of my opponent in this case, that such a man is 
 entitled to immunity to which others are not entitled ; that 
 justice in his case should slip her bandage and say: ‘‘True, ordi- 
 narily, an individual, any private complainant, has a right to 
 insist upon the observance of a decree of the Court in his favor, 
 and every man is bound to yield it; but just see who this violator 
 is. It is Mr. Gompers; it is the Vice-President of the Civic 
 Federation, of which the Hon. Seth Low is President; it is a 
 gentleman who has been sent to Europe to study industrial con- 
 ditions there. It is error, which an appellate court will correct, 
 to hold that such a man as he is should have the same measure 
 of justice meted out to him that is administered to any ordinary 
 party.” 
 
 The only distinction I know of is that men of superior 
 intelligence and superior knowledge are held to a higher and 
 more rigid degree of obedience than persons whose offenses may 
 be attributed to inexperience or to ignorance. 
 
 Next, my learned friend tells the Court that there is no in- 
 stance which the diligence of counsel for the appellants has been 
 able to discover in which the punishment was so great as this. 
 To that there are two answers. 
 
 In the first place, so far as our investigation goes, and so far 
 as any of the cases in the long list to which he refers in his 
 brief indicates, this is the first instance of record in which appel- 
 lants standing before a Court have said, before a decree was 
 granted, that they would not obey it if it were granted, and in 
 which, after it has been granted, they have declared, in print, in 
 public speech, and in every conceivable way: “Yes, we are 
 enjoined, but it does not make any difference; we will not obey 
 the injunction.” 
 
 So that, if we have here a really unprecedented punishment, 
 we have here, also, an unprecedented case of wilful, avowed and 
 defiant disobedience. 
 
 In the second place, my friends need not have passed beyond 
 the case of In Re Savin, 131 U. S., 267, to find a case in which 
 a sentence of one year was imposed ; and this was not a sentence 
 imposed upon a man who was wilfully and deliberately and 
 avowedly violating a decree of the Court. 
 
 My friend says that, when this injunction was issued, Mr. 
 Gompers called together the employees of the American Federa- 
 tion of Labor, and said to them : “This decree must be obeyed ; 
 
 45 
 
there must be no further circulation of this list.” I am sure my 
 friend so understood the matter; but, if he will look at the 
 record, he will find that what Mr. Gompers said was: “I did 
 not wish my employees to get into trouble. I would take the 
 responsibility, or trouble. What I said to them was, ‘Don’t you 
 do these things.’ ” So far from Mr. Gompers saying that there 
 should be no further distribution of this publication, the 
 undisputed evidence in the record shows that, within thirty days 
 after the bond was given and the appeal became operative, 100 
 copies of this publication were circulated through the Post Office 
 Department, and that the defendant Morrison, during that month, 
 put up, from time to time, the money necessary to be deposited 
 for the payment of postage on these 100 copies as second-class 
 mail matter. That was done on three different occasions during 
 those thirty days, and at each of those times Mr. Morrison made 
 an additional deposit to cover the additional cost of sending these 
 copies out, after this order had concededly become effective. 
 
 The witness Benedict testified that, on the 31st day of Decem- 
 ber, 1907, he went to the office of the American Federation of 
 Labor and, over the counter, bought one of these publications, 
 without the slightest trouble in the world. The undisputed evi- 
 dence shows that, after the bond had become operative, four 
 thousand copies of the proceedings of the Norfolk Convention 
 were circulated by the appellants, classifying the Bucks Stove 
 & Range Company as unfair, and as in the “We Don’t Patronize” 
 list, in violation of the terms of the order, and instructing organ- 
 ized labor, with its entire force of two million men, to canvass 
 every section of the country, urging its members, the tradesmen 
 and others, against handling the products of the Bucks Stove 
 & Range Company. 
 
 Over four thousand copies were circulated. The testimony 
 of Mr. Gompers shows that these proceedings did not come to 
 his hands until the 31st day of December, and that over four 
 thousand copies had been circulated. 
 
 Now, let us see what was the character of the violations of 
 that decree set up in the petition, and what was the extent of the 
 denial of them, or rather whether there was any denial of them. 
 
 We will begin with paragraph 16 of the petition, which is the 
 first paragraph alleging a violation of the injunctions after the 
 decree had been announced. The order for an injunction pen- 
 dente lite had been passed on the 18th day of December, 1907. 
 The injunction had taken effect and become operative on the 23d 
 of December, 1907, five days later. The record shows that, after 
 the Court had passed the order, it became necessary to send 
 the injunction bond to St. Louis, the complainant being a non- 
 resident, so that it might be executed, returned, and filed here. 
 That occupied five days. During those five days, Samuel Gom- 
 pers hastened, or “rushed, the publication of the January issue 
 
 46 
 
of the American Federationist, expressly with a view to circu- 
 lating it during the time which would elapse between the passage 
 of the order of injunction and its becoming effective by the filing 
 of the bond. This January, 1908, number, at page 51, includes 
 and publishes in full the “We Don’t Patronize” or “Unfair” list 
 of the American Federation of Labor, including in it the name 
 of petitioner; and, at page 38 of that issue, the appellant, Samuel 
 Gompers, published an advertisement for sale of a number of 
 copies of the American Federationist for the year 1907, and of 
 the official printed proceedings of the Norfolk Convention to 
 which I have referred, of which a number of thousands of copies 
 were issued and circulated. “Notwithstanding the fact that the 
 injunction pendente lite had taken effect on the 23d day of De- 
 cember, 1907, the said Samuel Gompers and the said Frank 
 Morrison thereafter continued to circulate and distribute the said 
 issue, containing the name of petitioner as aforesaid, and not- 
 withstanding the fact that the permanent injunction has since 
 been entered in this cause, they have from the said 23d day of 
 December, 1907, to the present time, continued uninterruptedly 
 to circulate and distribute to the public generally copies of the 
 said January, 1908, number of the American Federationist, of 
 the proceedings of the Norfolk Convention above mentioned, and 
 bound copies of the American Federationist for the year 1907, 
 the latter containing in each of the May, June, July, August, 
 September, October, November and December numbers thereof 
 the name of petitioner on the ‘We Don’t Patronize’ ,or ‘Unfair’ 
 list of the American Federation of Labor.” 
 
 The answer to this allegation of the petition will be found 
 on page 25 of the record : 
 
 “Answering the sixteenth paragraph of the petition, this re- 
 spondent says that even if, as stated, he ‘rushed’ the publication 
 of the January, 1908, issue of the American Federationist, he is 
 not aware that in so doing he violated any injunction order of 
 this Court, or that he could have violated such order by any 
 action had, prior to its becoming effective” — not that he did 
 not do it; but that, even if he did it, he has not violated any 
 injunction or order of this Court. 
 
 Mr. Justice Van Orsdel : I understand it is conceded by 
 counsel on the other side that he did rush it. 
 
 Mr. Darlington: Yes, sir; and it is contended that such an 
 act was analogous to a tariff act, under which a higher duty is 
 imposed upon importers after a certain date, and, that until 
 that dates arrives, persons are not criminals because they import 
 goods under the lower tariff. Is there the slightest analogy? 
 
 The Chief Justice: Suppose this bond had never been filed? 
 
 Mr. Darlington : Then why rush it ? Is it not beyond dispute 
 that the only motive in rushing was the anticipation that the 
 bond would be filed? 
 
 47 
 
The Chief Justice: But suppose it had never been filed? 
 
 Mr. Darlington : Then the order never would have become 
 operative, and this question could not have arisen. But the 
 evident intent, in rushing it, was the expectation and anticipa- 
 tion that a bond would be filed. The suggestion that the act 
 may have been done in anticipation or expectation that a bond 
 might never be filed answers itself ; because in that case there 
 would be no cause to rush. 
 
 But we are relieved from the necessity of speculation upon 
 the point, if susceptible of it, by the testimony of Mr. Gompers 
 himself as to why he did it and what his purpose was. In the 
 economy of time I will read from my brief. 
 
 Mr. Justice Van Orsdel: At what page of the record? 
 
 Mr. Darlington : I will read from page 10 of my brief, which 
 gives the page of the record: 
 
 “This issue, in due course, would have come out on the 25th 
 of January. It was gotten out on the 22d of January, which 
 was Sunday, and on that day, Sunday, some thousands were 
 mailed to distant points, some being mailed as far as California, 
 where the parties knew they could not be received before the 
 bond was given, if it was given at all. Not only that, but 
 several thousand copies were given to a distributing agency, the 
 Washington News Company, on Sunday, the 22d, for the pur- 
 pose of being distributed.” 
 
 Now, why was that done? Mr. Gompers testifies that he 
 “hurried” the issue by a personal superintendence of the mailing, 
 for the express purpose of getting it out before the undertaking 
 was filed — not anticipating that it might not be filed, but for 
 the express purpose of getting it out before it was filed. As I 
 say, there could be no occasion for rushing it in the expectation 
 that it was not going to be filed. Although he knew that the 
 order had been passed, and would be operative as soon as the 
 undertaking was filed, he testified that he thought the under- 
 taking might be given, and distributed the copies before it was 
 done; that he hurried up the issue because of the possibility that 
 the complainant would give the undertaking and thereby give 
 force and operation to the injunction issued by Justice Gould. 
 Why did he wish to issue them? What was the object of it? 
 His purpose, he testifies, was to affect complainant’s business 
 by influencing respondent’s fellow workmen and unions to prevail 
 upon it to come to an agreement. He “hoped to lessen its business 
 until it came to such an agreement,” which was the purpose of 
 the boycott. He “did not care to yield the appearance of com- 
 plainant’s name in the ‘We Don’t Patronize’ list of the January 
 issue.” The decree forbade it, but he did not care to yield that. 
 He “anticipated the injunction would soon become operative, 
 and was diligent to see that the issue was distributed before it 
 was done, having for this purpose placed a large number of 
 
 48 
 
these copies in the hands of the Washington News Company for 
 distribution, neither informing the News Company that the in- 
 junction order had been signed and might become operative, or 
 taking any steps to prevent it from circulating the numbers after 
 he had learned that the injunction undertaking was given — he left 
 them to take the usual course.” He “hurried because he wished 
 to get the injunction out before it became operative, that com- 
 plainant’s name might continue to be published connected with 
 the ‘We Don’t Patronize’ caption, without the interference of 
 anyone, including the Court.” He did not then intend that the 
 Court should interfere with the appearance of that name on that 
 list in the January issue. 
 
 As I say, the only answer to this, in the pleadings, is that, even 
 if he did rush it, he was not aware that he violated the injunction. 
 
 In the economy of time, I propose to discuss the legal phases 
 of this case a little later. I am now stating the facts. 
 
 The petition further charges, in the seventeenth paragraph — 
 and I will read as little as I can — just enough to give the Court 
 a fair conception of what these charges were — that in the Feb- 
 ruary, 1908, number of the American Federationist, which came 
 out something more than a month after the bond had been given, 
 Mr. Gompers published, and Mr. Mitchell helped to circulate — 
 because he was the man who put up the money in the Post Office 
 Department for postage to pay for the circulation of these 
 papers — an editorial and an “Urgent Appeal” in which it was 
 stated : 
 
 “The order is an invasion of the liberty of the press and the 
 right of free speech. With all due respect to the Court, it is 
 impossible for us to see how we can comply with all the terms 
 of the injunction. This injunction cannot compel union men 
 or their friends to buy the Bucks stoves and ranges. For this 
 reason the injunction will fail to bolster up the business of this 
 firm, which it claims is so swiftly declining.” 
 
 In other words, the injunction had forbidden the further pub- 
 lication of this name in the “We Don’t Patronize” or “Unfair” 
 list. It had forbidden reference to it in connection with the word 
 “unfair,” or in connection with the term “boycott,” and had for- 
 bidden any statement in writing or otherwise or any reference 
 to the fact that there had been a boycott made, or that com- 
 plainant’s name had been put upon the unfair list or the “We 
 Don’t Patronize” list, and yet he announces in the February 
 Federationist that an injunction had been granted, but he does 
 not see how they can obey it in all its terms, and he tells these 
 two million men, of whom my friends tell us he is the leader, that 
 they need not pay any attention to it ; that they can still continue 
 to boycott just as they had done before, and that the relief 
 which the Court had given would not bolster up the business 
 of the firm. 
 
 49 
 
“Individuals, as members of organized labor, will still exercise 
 the right to buy or not to buy the Bucks stoves and ranges. It 
 is an exemplification of the saying, that ‘you can lead a horse to 
 water, but you can’t make him drink,’ and more than likely these 
 men of organized labor and their friends will continue to exercise 
 their right to purchase or not to purchase the Bucks stoves and 
 ranges.” 
 
 I am reading only extracts. He continues: 
 
 “So long, however, as that company continues in its hostile 
 attitude to labor, denying it the right to organize, discriminates 
 against union members, and refuses to accord conditions of 
 employment generally regarded as fair in the trades, it must 
 expect retaliatory measures.” 
 
 What were those retaliatory measures, except the very thing 
 which they had done, and which they were now told they must 
 not do, pending the further action of the Court? 
 
 Again : 
 
 “The publication of the Bucks Stove & Range Company on the 
 ‘We Don’t Patronize’ list of the American Federation of Labor 
 is only an incident in the history of the case. These stoves might 
 have been left as severely alone by purchasers if they had never 
 been mentioned on that list. It is not the matter of removing 
 that firm from the list against which we primarily protest, it is 
 this injunction invading the freedom of the press.” 
 
 In other words, in three sentences, there are three references 
 to the fact, forbidden by the injunction, that this company had 
 been on the unfair list, and that it was not there now simply 
 because that action had been enjoined by the Court. 
 
 There is another feature of this case which I think is very 
 striking. One of the assignments of error in this case is that 
 there is no evidence in the case that these alleged violations of 
 the injunction led to any continuance of the boycott. 
 
 Let me call the attention of the Court to the facsimile printed 
 in the record opposite to page 616; but before doing that I will 
 refer to another matter which will make the meaning of what 
 I am about to direct attention to appear more clearly. 
 
 On page 386 of the record the court will find an opinion given 
 by one of the counsel for the complainant upon the efifect of 
 this injunction. It reads : 
 
 “It is important to everyone interested to understand that, 
 though this decree was made by the Supreme Court of the 
 District of Columbia, and though its power to punish for con- 
 tempt is limited to such persons as it may at any time find 
 within the territorial limits of the District of Columbia, whether 
 they reside within or without the District of Columbia, the 
 
 50 
 
decree is binding upon all persons comprised within its terms, 
 including all the members of the American Federation of Labor, 
 wherever they reside, and all other persons who have heretofore 
 acted, or may hereafter act, in concert with the defendants 
 named in the decree in carrying out the boycott therein enjoined. 
 
 “It is important also for every person interested to know that 
 it is a criminal offense under the statutes of the United States, 
 punishable by imprisonment in the penitentiary for not more 
 than three years, for any two or more persons anywhere in 
 the United States to conspire together to evade or defeat this 
 decree by doing any of the acts prohibited by it, and they are 
 liable, for prosecution for it by the Federal authorities. It is 
 within the power, and it will be the duty of the Federal author- 
 ities to protect the dignity of the Supreme Court of the District 
 of Columbia against all attempts to defeat the course of justice 
 in that court by the doing by anybody, in any place, of the acts 
 enjoined in that decree.” 
 
 In other words, that, although the Court could not punish 
 any persons except those found within its jurisdiction, yet the 
 decree is binding upon the American Federation of Labor and 
 the persons associated with it, and that, under the Federal Stat- 
 utes, if any two or more should combine to defeat it, they would 
 be punishable. 
 
 Now, let us see how that was heralded to these two millions 
 of men, in the American Federationist : 
 
 “Order granting injunction — ” 
 
 The Court will notice the relative size of the type. 
 
 “IN THE OFFICIAL ORGAN OF THE NATIONAL AS- 
 SOCIATION OF MANUFACTURERS, ONE OF THE 
 COUNSEL FOR THE BUCKS STOVE & RANGE COM- 
 PANY DECLARES THAT PUNISHMENT FOR VIOLA- 
 TION OF THE INJUNCTION ISSUED BY JUSTICE 
 GOULD AGAINST THE AMERICAN FEDERATION OF 
 LABOR, APPLIES PARTICULARLY TO THOSE WITHIN 
 THE TERRITORIAL LIMITS OF THE DISTRICT OF 
 COLUMBIA WHO VIOLATE THE TERMS OF THE IN- 
 JUNCTION. THAT THOSE WHO VIOLATE THE TERMS 
 OF THE INJUNCTION IN ANY OTHER PART OF THE 
 COUNTRY OUTSIDE OF THE DISTRICT OF COLUM- 
 BIA CAN BE PUNISHED ONLY WHEN THEY THERE- 
 AFTER COME WITHIN THE TERRITORIAL LIMITS 
 OF THE DISTRICT OF COLUMBIA. COUNSEL FOR 
 THE AMERICAN FEDERATION OF LABOR ASSURE 
 US THAT THIS CONSTRUCTION OF THE COURT’S 
 ORDER IS ACCURATE.” 
 
 In other words, the opinion to the effect that, although the 
 local court itself could only punish those violators of it who 
 
 51 
 
were found in this jurisdiction, yet its decree was binding on 
 everyone, and that, if any two persons united to violate it, they 
 would be punished by the Federal authorities, is ignored, and, in 
 this prominent way, they published just so much of the opinion 
 as would make it seem to say, “If you do not come here, you 
 are perfectly safe in violating the decree, and counsel on both 
 sides agree that there can be no punishment for your violating 
 of it unless you come into the District of Columbia thereafter.” 
 
 Why was that done? I read, for convenience, from pages 
 seventeen and eighteen of my brief : 
 
 “The object of this publication, Mr. Gompers himself states, 
 was to inform the local unions so that they might know "what 
 they might do and what they might not do.’ He tells them, 
 ‘Counsel agree that you can violate it as much as you please, 
 provided you keep out of the District of Columbia.’ And this 
 was told them so they might know what they might do and 
 what they might not do. He states that the information he 
 wished to convey was that those who violated the injunction 
 could be punished only when they thereafter came within the 
 District — that he “thought the opinion of complainant’s counsel 
 would be valuable to working people, so that they would be 
 guided by it.” 
 
 \ 
 
 Guided in what? This was issued on the 25th of January. 
 
 The relation of the trade journals to the various affiliated 
 bodies of the American Federation of Labor was fully discussed 
 in the principal case, and I need not refer to it now, except as 
 my brief points it out. At pages 545-569 of the earlier record 
 it will be found that every declaration of boycott declared by 
 the American Federation of Labor was accompanied with the 
 request, “Labor and Reform Press please copy”; those journals 
 were the agencies of the American Federation of Labor, which 
 “have proved effective weapons in the settlement of disagree- 
 ments with labor in the past,” and they were circularized by the 
 Federation for the purpose of obtaining their aid in support of 
 the boycott. 
 
 The record further shows that at the annual meetings of the 
 American Federation of Labor, the Convention gave recognition 
 of the “immeasurable value to labor of these labor and reform 
 journals,” and their “title to the most friendly and generous 
 consideration in every way, from the officers and members of 
 every single union under the jurisdiction of the American Fed- 
 eration of Labor,” formed a feature of the annual conventions 
 of the Supreme body of the Federation. 
 
 In the original record the Court will further find a circular 
 issued by the Executive Council of the American Federation of 
 Labor to these various labor and reform journals, asking that 
 they diligently consult the “We Don’t Patronize” or “Unfair” 
 list of the Federationist, so that they would not fail to get 
 
 52 
 
promptly for publication any new ones who are added, and would 
 not fail to take promptly off their list those who had made terms 
 and gotten off the American Federation list. 
 
 These notices by Mr, Gompers thus, in effect, said and were 
 intended to say to the members of the organization, including 
 the reform press and the labor press, and their editors, that 
 those who did not come into the District could not be punished. 
 “You can violate this injunction without liability to punishment, 
 provided you keep out of the District.” 
 
 That was on the 25th of January. One week later, on Jan- 
 uary 31st, the Journal of the United Garment Workers, the organ 
 of one of the affiliated bodies composing the American Federa- 
 tion of Labor, published the following: 
 
 “All the Justice Goulds, Bucks Stoves & Range Company in- 
 junctions, and United States Supreme Court Judges, with their 
 declarations of the Erdman Law as unconstitutional, will some 
 day be in heaven or h — , and trade unionism will still flourish, so 
 don't worry.” 
 
 Two weeks later, on February 14th, they drop into poetry, 
 and the following appears : 
 
 “Neither Van nor his ally Judge Gould 
 And the combined forces of hell 
 Can bridle free speech in this country 
 And the same old story will tell.” 
 
 These are only specimens of similar publications contempo- 
 raneously appearing in a number of the so-called labor reform 
 press. 
 
 As to that article in the Federationist, which we claim was the 
 inducement and provocation for these articles in the labor jour- 
 nals, the lower Court, on page 617 of the record, says: 
 
 “The evidence is so suggestful of a finding by the Court that 
 this was for the purpose of inducing persons beyond the District 
 of Columbia to violate the injunction and for the purpose of 
 defeating it, that that finding is now made.” 
 
 Here is a finding of fact by the Court below, and when we 
 come to the law of the case we will find that all the authorities, 
 the Supreme Court of the United States included, agree that, 
 whether a contempt arises in an equity suit or in a suit at law, 
 it is a proceeding at law, that the appellate courts can consider 
 only the questions of law arising in it, and that they cannot review 
 the findings of fact. 
 
 We will further find, when we come- to the law of this case, 
 that, even if this Court could review the facts, the record pre- 
 sents no evidence which the Court can consider. 
 
 The Chief Justice : Have you any authority to the effect that, 
 in a proceeding of this kind, the appellate court cannot review 
 the evidence ? 
 
 53 
 
Mr. Darlington: Yes; unless it is made a part of the record 
 by bill of exceptions. 
 
 The Chief Justice: That may be a different proposition. 
 
 Mr. Darlington: That you cannot dump into the record the 
 depositions as is done here, and, that, even if you could do this, 
 questions of fact are not reviewable, but only questions of law, 
 and that contempt proceedings, whether they arise in an equity 
 suit or in a common law suit, are a common law proceeding. 
 
 The Chief Justice: If it had been a common law proceeding 
 then the party would have been entitled to a trial by jury. 
 
 Mr. Darlington: No, sir; the Supreme Court of the United 
 States says not. 
 
 The Chief Justice: Do they say that if this proceeding were 
 a common law proceeding a jury trial could not be had? 
 
 Mr. Darlington: Yes, sir; they say just that; that this is a 
 common law proceeding, and that it deals with a class of facts 
 of which the trial judge is the sole judge. 
 
 Mr. Justice Van Orsdel: Was that held in a case where the 
 contempt was without the presence of the Court? 
 
 Mr. Darlington: Yes, sir. The Debs case is an illustration 
 of that, and there are a number of cases that will be called to 
 the attention of the Court when we take up the law. 
 
 The Chief Justice: The Debs case did not hold any such 
 proposition as that the appellate court could not inquire into the 
 facts on the trial. It seems to me the Court there did review 
 the facts. 
 
 Mr. Darlington : When we come to that question, I shall show 
 the Court, by the authority of the Supreme Court of the United 
 States, that the Court is the sole judge of the fact whether or 
 not its dignity has been attacked and its authority defied, that 
 it, alone, finds that from the evidence, and that no appellate court 
 can review those findings. It is by no means unusual, as I am sure 
 your Honors will recall, to find questions of fact of which the 
 court is the sole judge. Take the fact of whether or not a wit- 
 ness is qualified to testify as an expert. There the court alone 
 hears the evidence and passes on that question, and not the jury. 
 
 The Chief Justice: The appellate court will review the court’s 
 finding upon that question, as to whether or not he was in error 
 about it, in admitting the testimony. It is a matter within the 
 Court’s discretion, but certainly an appellate court would not 
 refuse to review the action of the trial judge in such a case as 
 that. It is a question of law and not a question of fact as to 
 whether or not the testimony is sufficient to show that the party 
 is qualified to speak as an expert. t 
 
 54 
 
Mr. Darlington: So far as my examination goes, no case 
 exists in which the ruling of the trial judge as to the qualifica- 
 tions of an expert or non-expert witness has been reversed. It 
 is treated always as a question of fact to be determined by the 
 lower court. 
 
 Mr. Justice Robb: I suppose you could conceive of a case 
 where it could be reviewed? 
 
 Mr. Darlington : I suppose we could conceive of a case where 
 there would be jurisdiction to review, as, for example, if it were 
 shown that a man never had any experience in the line of 
 expert knowledge. For example, take the case of a blacksmith 
 who had only shod horses and yet who was allowed to express 
 his opinion as an expert on abstruse questions in electricity. I 
 can conceive of such a case, but no such case is to be found. 
 I think I am within bounds in saying that. 
 
 But be that as it may. The decision of the Supreme Court of 
 the United States is to the effect that a proceeding in contempt 
 is a common law proceeding, and that the trial court, the court 
 of first instance, is the sole judge of the facts; and, that if 
 the appellate court has jurisdiction at all, it can have jurisdic- 
 tion only upon questions of law. 
 
 The eighteenth paragraph of the petition sets up the mat- 
 ter of the Urgent Appeal and the accompanying editorial. This 
 is one of the things which concern all the appellants, be- 
 cause all of them sign the Urgent Appeal which, in terms, 
 embodied the editorial in the Federationist, printed at page 464 
 of the original record. 
 
 Our learned friends, both in their brief and in the presen- 
 tation made this morning, argue that it was essential to the 
 appellants to have money to prosecute their appeal, and that 
 in order to get that money it was essential for them to com- 
 municate with the various members of their order; that they 
 did not like to make assessments, but preferred appeals, and, 
 therefore, that they were at liberty to violate the express pro- 
 visions of this injunction; or, else, that the Urgent Appeal and 
 the editorial accompanying it were not a violation, but were 
 merely a presentation of their need for money for their de- 
 fense. 
 
 I do not think I need to argue that, where a decree or order 
 of a court specifically prohibits a specific thing, the fact that 
 persons who labor under that prohibition, but desire to ac- 
 complish some laudable object, and can accomplish that ob- 
 ject more satisfactorily to themselves by violating the injunction 
 than by not violating it, gives them liberty to do so; and that 
 is the proposition now presented here. 
 
 Mr. Justice Van Orsdel : Is it your proposition here that, 
 assuming that the decree of the court below is the decree 
 
 55 
 
of a court of competent jurisdiction, it would be a contempt 
 to violate any of the terms of that decree, irrespective of any 
 modification which we have made of the decree since then, 
 and that it would constitute a contempt, if they merely pub- 
 lished the name of the Bucks Stove & Range Company in the 
 American Federationist? 
 
 Mr. Darlington: No, sir. 
 
 Mr. Justice Van Orsdel: And merely commented upon the 
 action of the court? 
 
 Mr. Darlington: No; we should not claim that, if any such 
 thing had occurred. 
 
 Mr. Justice Van Orsdel ! Or that in commenting upon the 
 decision of the court to the extent of even publishing a part 
 of the decree, although the name of the Bucks Stove & Range 
 Company appears among the items in that article — would you 
 contend that constituted a contempt of court, under that par- 
 ticular decree? 
 
 Mr. Darlington: Applying your Honor’s question to the 
 concrete case before us there is, in the first pla£e, no prohibi- 
 tion against their publishing the name of the Bucks Stove & 
 Range Company. There is a prohibition against publishing it 
 in connection with the words, “We Don’t Patronize” or the 
 “Unfair” list. There is no claim in this record that they 
 have violated the decree by publishing simply the name of 
 the Bucks Stove & Range Company. 
 
 Answering your question further, I would say that I never 
 for a moment would contend that the publishing of the name 
 of the Bucks Stove & Range Company in a manner that was 
 not prohibited was contempt of court. 
 
 Now let us see if our friends are right in their proposition 
 that, because the American Federationist needed funds to pros- 
 ecute its appeal, and because it did not like to assess its mem- 
 bers, as it had the power to do under the Constitution, they 
 were therefore relieved from the effect of the decree, in so 
 far as that purpose called upon them to violate it as a means 
 of getting money to prosecute their appeal. 
 
 Let me state, in the first place, what this court found on 
 the former hearing: We have here a compact organization of 
 two million men, capable of being reached in a manner more 
 effective than any in which the government of the United States 
 can reach the individual citizen. 
 
 Let me call attention to the fact that an assessment of one 
 cent on each one of its members would amount to $20,000. Let 
 me call attention to the fact that an assessment of one cent 
 a month for a year would be a quarter of a million dollars ; and 
 yet this Court is asked to say that, because they do not like as- 
 sessments, or because they prefer to call for voluntary sub- 
 
 56 
 
scriptions, they should be held at liberty to violate the injunc- 
 tion. 
 
 But, if you grant all that, is it true, as a matter of fact, that 
 this Urgent Appeal was simply an attempt, in a legitimate way, 
 to secure contributions in the attempt to defend against this 
 injunction? The editorial is very long and I shall read only 
 extracts from it. It is found on page 474 of the original 
 record. 
 
 “This injunction enjoins them as officials, or as individuals, 
 from any reference whatsoever to the Bucks Stove & Flange 
 Company’s relations to organized labor, to the fact that said 
 company is regarded as unfair; that is, on an unfair list or on 
 the ‘We Don’t Patronize’ list of the American Federation of 
 Labor.” 
 
 In the opening sentence he calls attention to the fact, in vio- 
 lation of the injunction, that the company is regarded as un- 
 fair and that it is on the “Unfair” list and on the “We Don’t 
 Patronize” list of the American Federation of Labor. What 
 necessity was there for thus three times, in one sentence, call- 
 ing attention to the fact that the Bucks Stove & Range Com- 
 pany was on the unfair list, if the object was merely to get 
 money for defense? Why would it not have answered their 
 purpose to say : “We are engaged in the litigation of a case 
 with the Bucks Stove & Range Company, and we need money 
 for our defense.” But, instead of this, in the opening sentence, 
 they refer, three times, to the fact that the Bucks Stove & 
 Range Company is unfair, is on the unfair list, and is regarded 
 as unfair. 
 
 A little further down he says : 
 
 “With all due respect to the Court, it is impossible for us 
 to see how we can comply with all the terms of this injunc- 
 tion.” 
 
 Why is it impossible? It is not that there is a physical im- 
 possibility, but it is simply that they do not want to do so. 
 The immediately succeeding sentence gives the answer. 
 
 Mr. Ralston : Will you permit me to interrupt you ? Mr. 
 Gompers then answers the question and gives the reason. 
 
 Mr. Darlington: Where is his answer? 
 
 Mr. Ralston: In the very next sentence. 
 
 Mr. Darlington : My dear sir, I was just going to read 
 that. 
 
 Mr. Ralston : You had passed that. 
 
 Mr. Darlington : But I had not passed it. I had directed 
 the Court’s attention to it. He says that it is impossible to 
 comply with all the terms of the injunction, and here is his 
 reason : 
 
 57 
 
“We would not be performing our duty to labor and to the 
 public without discussion of this injunction.” 
 
 “Our duty to the public and our duty to labor overrides 
 our duty to the Court. It is impossible for us to obey the de- 
 cree of the Court if it conflicts with what we claim is our duty 
 to labor and to the public. 
 
 “Our great forefathers sacrificed even life in order that these 
 fundamental constitutional rights of free press and free speech 
 might be forever guaranteed to our people. We would be recre- 
 ant to our duty did we not do all in our power to point out 
 to the people the serious invasion of their liberties which has 
 taken place. That this has been done by judge-made injunc- 
 tion and not by statute law makes the menace all the greater.” 
 
 I would not have omitted reference to the answer to which 
 my friend calls attention. It shows that this impossibility is 
 not a physical impossibility, but it is simply an impossibility to 
 comply with the decree of the court and at the same time do 
 what these gentlemen thought they wanted to do, in the dis- 
 charge of what they chose to designate as their duty to labor 
 and to the public. 
 
 Again : 
 
 “The publication of the Bucks Stove & Range Company on 
 the ‘We Don’t Patronize’ list of the American Federation of 
 Labor is the exercise of a plain right. To enjoin its publication 
 is to invade and deny the freedom of the press — a right which 
 is guaranteed under the Constitution. 
 
 “The matter of attempting to suppress the boycott of the 
 Bucks Stove & Range Company, by injunction, while important, 
 yet pales into insignificance before this invasion and denial of 
 constitutional rights. 
 
 “In the application for the injunction it was alleged by the 
 Bucks Stove and Range Company that its business had suffered 
 seriously from the refusal of union workmen and their friends 
 to purchase stoves and ranges. But would not absolute silence 
 on our part as to its hostile attitude toward certain union em- 
 ployees be dishonest?” 
 
 I should stop right here to say that the argument of my 
 learned friends that this is a conflict between leaders finds no 
 support in this record. The Bucks Stove & Range Company is 
 not a leader in the contest between capital and labor in any 
 other sense than that, paying its workmen by the price, it 
 claims the right to work ten hours a day when 715 of its em- 
 ployees are willing to work that long, and only 38 wish not to 
 do so. 
 
 It is not, as the learned counsel urge, opposing the efforts of 
 organized labor to secure better conditions for their families and 
 
 58 
 
better educational opportunities for their children. That is not 
 the question here. The question here is whether thirty-eight 
 men have the right to coerce an employer into taking away ten 
 per cent of their earnings, ten per cent of the earnings of seven 
 hundred and fifteen other men, which ten per cent would add 
 to the comfort and to the educational advantages of their fam- 
 ilies and their children. 
 
 Again : 
 
 “We had a right to inform the public as to the facts in the 
 case. Wage workers, and, indeed many others, prefer to give 
 their patronage to firms which employ union labor and whose 
 product, for that reason, is likely to be of a more satisfactory 
 quality to the consumer. 
 
 “If the champions of the non-union shops are so proud of 
 their stand in the matter, and so convinced of their own fair- 
 ness and wisdom, we really fail to see why they should object 
 to the publication of that fact. 
 
 “The Bucks Stove & Range Company, judging from the 
 terms of the injunction, desire to stifle the voice of labor and 
 enforce a continuous and unbroken silence on the subject of 
 its bad standing with union workmen. 
 
 “But would not absolute silence on our part as to its hostile 
 attitude toward certain union members be dishonest ? Why 
 should we encourage our members and friends to buy the 
 Bucks stoves and ranges under the apprehension that this 
 company deals fairly with union labor? Could not union em- 
 ployers then accuse us of unfair discrimination, of trickery and 
 humbug?” 
 
 Is this an appeal for money to carry on a defense, or is 
 it an appeal to these two million of men to continue the boy- 
 cott? 
 
 “It is a most remarkable injunction. Justice Gould seems to 
 base this injunction on the assumption that there has been a 
 combination of numbers of wage earners ‘conspire’ to commit 
 unlawful acts. Such is not the fact.” 
 
 The Court below found it was a fact, and this Court has 
 found it was a fact, but Mr. Gompers has decided that it was 
 not a fact: 
 
 “The very injunction proceedings from which Judge Gould 
 quoted Judge Taft, and other precedents he mentions, are cases 
 in which the injunction privilege was abused by being wrong- 
 fully applied. Two wrongs do not make a right in an in- 
 junction any more than in other affairs of life. 
 
 “Neither coercion, threats, nor conspiracy, in the unlawful 
 sense have been resorted to, yet the whole injunction is based 
 upon this wrong assumption.” 
 
 59 
 
The Court below, and this Court, finds that there have been 
 coercion, threats and conspiracy, unlawful in character. 
 
 “This injunction cannot compel union men or their friends 
 to buy the Bucks stoves and ranges. For this reason the in- 
 junction will fail to bolster up the business of this firm which 
 it claims is so swiftly declining.” 
 
 That is it will still be, for all practical purposes, kept on 
 the “Unfair” and “We Don’t Patronize” list, and will still be 
 boycotted. 
 
 Why this is true the sentence immediately following shows : 
 
 “Individuals as members of organized labor will still exercise 
 the right to buy or not to buy the Bucks stoves and ranges. 
 It is an exemplification of the saying that ‘You can lead a 
 horse to water but you can’t make him drink,’ and more than 
 likely these men of organized labor and their friends will con- 
 tinue to exercise their right to purchase or not to purchase 
 the Bucks stoves and ranges. 
 
 “It may not be amiss here to say that in all these proceed- 
 ings, whether before the court or in the contest forced upon 
 labor by the Bucks Stove & Range Company, no element of 
 personal malice or ill will enters. Labor is earnestly desirous 
 of entering into friendly relations with employers, and this is 
 none the less true of its desire to reach an honorable adjustment 
 and agreement with the Bucks Stove & Range Company. So 
 long, however, as this Company continues in its hostile attitude 
 to labor, denying it the right to organize, discriminates against 
 union members, and refuses to accord conditions of employ- 
 ment generally regarded as fair in the trade it must expect 
 retaliatory measures; these measures, always, however, within 
 the law and for the purpose of ultimately reaching an honorable, 
 mutually advantageous agreement. 
 
 “The publication of the Bucks Stove & Range Company on 
 the ‘We Don’t Patronize’ list of the American Federation of 
 Labor is only an incident in the history of the case. These 
 stoves might have been let as severely alone by purchasers if 
 they had never been mentioned on that list. It is not the 
 matter of removing that firm from the list against which we 
 primarily protest. It is this injunction invading the freedom 
 of the press.” 
 
 Over and over again he refers to the fact, prohibited by the 
 decree, that this company has been, and is on the unfair list. 
 
 Again : 
 
 “The publication of the Bucks Stove & Range Company and 
 other firms on the ‘We Don't Patronize’ list is merely giving 
 truthful information at the request of our members as to whether 
 or not certain firms employ union men and concede the other 
 
 60 
 
conditions o'f employment usually granted by those concerns 
 which recognize union labor. 
 
 “The air is filled with the lamentations of the innocent vic- 
 tims of such conspiracies, but do we ever hear of these pirates 
 in the business world being enjoined from continuing their 
 depredations or threatened with contempt proceedings, if they 
 do not desist from their unlawful practices which even involve 
 property rights? Never! These injunctions are applied to 
 wage workers exclusively, though they involve personal rights 
 and liberties. It is the denial of this equality before the law 
 against which we protest” 
 
 Could there be a more inflammatory appeal to these two mil- 
 lion of men to disregard these injunctions, and to treat the 
 complainant as still on the unfair list, notwithstanding the in- 
 junction? 
 
 Mr. Justice Van Orsdel : Was there any proof in the record 
 that the boycott was continued, after this injunction order, as 
 it had been carried on before the injunction order became 
 effective ? 
 
 Mr. Darlington : I think the record shows that. There is 
 so much of it I cannot speak off-hand ; but before I close I 
 will look into that matter. I submit, however, that this would 
 be a matter which is immaterial here. If these people have en- 
 deavored to keep up the boycott, the fact of their failure to do 
 so would be no answer. 
 
 Mr. Davenport : The deposition of Mr. Templeton, who was 
 the secretary of the petitioner, shows that since the 23d of 
 March the operations of these people have kept up, so that 
 they have reduced the gross sales from $1,200,000 to $600,000. 
 The record is full of proof that throughout this country this 
 warfare has been kept up. 
 
 Mr. Darlington : I was aware that Mr. Templeton had tes-r 
 tified in that way, and my impression was that it covered a 
 time subsequent to this article. 
 
 Mr. Ralston : We will have to challenge Mr. Darlington’s 
 statement on that point. There is nothing to indicate that 
 these defendants were in any way connected with such mat- 
 ters. 
 
 Mr. Darlington: That is a question that is very easily set- 
 tled. We will determine that in the morning. 
 
 Mr. Beck : As to the question put by the Court, with refer- 
 ence to whether there is any evidence as to the boycott after the 
 preliminary injunction was granted, I want to call the atten- 
 tion of the Court and of Mr. Darlington to the resolution of 
 the United Mine Workers, which was the most damaging blow 
 to the complainant which was struck in the whole warfare. I 
 
 61 
 
hope Mr. Darlington will explain that to the Court. 
 
 Mr. Darlington: I was just about to explain that. 
 
 (The Court thereupon adjourned until tomorrow, Tuesday, 
 April 20th, 1909, at 10 o’clock a. m.) 
 
 Washington, D. C., Tuesday, April 20, 1909. 
 
 The Court met, pursuant to adjournment, at 10 o’clock, a. m. 
 
 The arguments of counsel were continued before Chief Jus- 
 tice Shepard, Justice Robb and Justice Van Orsdel. 
 
 Appearances : 
 
 For the Appellants, Mr. Alton B. Parker and Mr. Jackson 
 H. Ralston. 
 
 For the Appellee, Mr. James M. Beck, Mr. Daniel Davenport, 
 and Mr. J. J. Darlington. 
 
 ARGUMENT OF JOSEPH J. DARLINGTON, ESQ. 
 
 (Continued.) 
 
 Mr. Darlington: Just before the adjournment yesterday, the 
 question was raised whether or not the evidence showed that 
 the boycotts had continued after the injunctions were granted. 
 I stated my impression that they had. Mr. Davenport was 
 very positive that they had, and Mr. Ralston that they had 
 not. At page 175 of the record Mr. Jones T. Templeton — - 
 
 The Chief Justice: Page 175 of the present record? 
 
 Mr. Darlington : Yes. After citing a number of instances, 
 he was asked this question : “Are these instances since the 
 granting of the injunction? A. Yes, sir. Q. The temporary 
 injunction and the permanent injunction? A. I am giving 
 it from the time of the permanent injunction. Q. The 23d 
 of March? *A. Yes, sir. Q. Since the 23d of March, 1908? 
 A. Yes, sir. The Goseman-Parker House Furnishing Company 
 of St. Louis report the same; R. H. Kobush Furniture & Car- 
 pet Company of St. Louis report the same; Henry McNichols 
 Furniture Company of St. Louis state that their attention has 
 been called to the matter so often since the permanent injunction 
 was granted, that they felt compelled to discontinue the sale 
 of our line of goods entirely, and have replaced it with an- 
 other line. D. Somers & Company of St. Louis, our largest 
 customer in that city, said that so much pressure had been 
 brought to bear on them by members of labor organizations of 
 St. Louis, since our injunction, that they, felt compelled to dis- 
 continue advertising and pushing our line of goods, and today 
 the line has been almost completely replaced by other makes 
 of goods. Frank L. Schabb, of St. Louis, states that he can 
 
not push our goods, owing to the fact that he is continuously 
 annoyed by prospective purchasers giving him to understand 
 that they are not allowed to buy a Bucks stove.” 
 
 The Court will find the whole of that page and page 176 
 taken up with the enumeration of these firms that had dis- 
 continued the sale and handling of the goods of this com- 
 pany. 
 
 The Chief Justice: That testimony seems to be hearsay, does 
 it not? 
 
 Mr. Darlington : That objection was raised. 
 
 The Chief Justice: It is a statement of one who was con- 
 nected with the complainant. 
 
 Mr. Darlington: As a salesman who, when he goes about 
 to make sales, finds people refusing to take the goods, because 
 of these conditions. This is one of the class of cases in which, 
 if material, hearsay is admissable. This is a point I did not 
 anticipate on my brief. The Court will find it in 9 Carrington 
 and Payne, 275. On a trial on indictment for conspiracy to 
 procure large numbers of persons to assemble, etc., evidence 
 was given of several meetings. It was proposed to ask a witness, 
 who was a superintendent of police, whether persons complained 
 to him of being alarmed by those meetings. It was contended 
 on behalf of the defendants that the persons who were alarmed 
 should be called to prove that fact. Guerney, Baron, held that 
 the fact that persons made complaint to a superintendent of 
 police, of alarm, is receivable. 
 
 The Chief Justice: Were those complaints made at the meet- 
 ings, or subsequently? 
 
 Mr. Darlington: That does not appear. As I said to the 
 court on yesterday, it seems to me that when we have shown 
 the violation of this injunction, it is not encumbent on us further 
 to prove whether or not the followers of these defendants were 
 influenced by it. These men are convicted of disregarding the 
 injunction. What results followed that disobedience of the 
 injunction is quite apart from the question. On page 177 of 
 the record this same witness, Templeton, states a fact which 
 is not hearsay: 
 
 “State as to whether or not this has had any effect upon 
 the sales of the product of your company? 
 
 “A. Our sales so far this year have decreased more than 
 fifty per cent as compared with our total sales of 1907, up 
 to date.” 
 
 That is. not hearsay. Now, I suppose I had just as well 
 dispose of some other questions which arose incidentally yes- 
 terday, before proceeding regularly. I submitted two proposi- 
 tions, that the facts in regard to a contempt case are not for 
 
 63 
 
trial by jury, and secondly, that, on error in contempt proceed- 
 ings, the court can not consider questions of fact. As in all 
 other common law cases of review, the appellate court is limited 
 to consideration of the points of law passed upon. 
 
 Upon that point I ask the court’s attention to 158 U. S., 
 594-6, in re Debs, holding that, although questions of fact are 
 involved in contempt proceedings, they are facts of which the 
 court alone is the judge, and in which trial by jury is not a 
 right. At page 594 the court says : 
 
 “Nor is there in this — ” 
 
 That is, in the finding of facts by the trial court and judgment 
 based upon its findings — 
 
 “any invasion of the constitutional right of trial by jury. 
 We fully agree with counsel that ‘it matters not what form 
 the attempt to deny constitutional right may take, it is vain and 
 ineffectual, and must be so declared by the courts,’ and we re- 
 affirm the declaration made for the court by Mr. Justice Brad- 
 ley in Boyd vs. United States, 116 U. S. 616,635, that ‘it is 
 the duty of courts to be watchful for the constitutional rights 
 of the citizens, and against any selfish encroachments thereon. 
 Their motto should be obsta principiis ! But the power of a 
 court to make an order carries with it the equal power to 
 punish for a disobedience of that order, and the inquiry as 
 to the question of disobedience has been, from time immemorial, 
 the special function of the court. And this is no technical rule. 
 In order that a court may compel obedience to its orders, it 
 must have the right to inquire whether there has been any 
 disobedience thereof. To submit the question of disobedience 
 fo another tribunal, be it a jury or another court, would 
 operate to deprive the proceeding of its efficiency. In the Case 
 of Yates, 4 Johns. 314, 369, Chancellor Kent, then Chief Jus- 
 tice of the Supreme Court of the State of New York, said: 
 ‘In the case of the Earl of Shaftesbury, 2 State Trials, 216, 
 who was imprisoned by the House of Lords for high contempts 
 committed against it and brought into the King’s Bench, the 
 court held that they had no authority to judge of the con- 
 tempt, and remanded the prisoner. The Court, in that case, 
 seemed to have laid down a principle from which they have 
 never departed, and which is essential to the due administration 
 of justice. This principle that every court, at least of the su- 
 perior kind, in which great confidence is placed, must be the 
 sole judge, in the last resort, of contempts arising therein, is 
 more explicitly defined and more emphatically enforced in the 
 two subsequent cases of the Queen vs. Paty et ah, and of the 
 King vs. Crosby.’ And again, on page 371, ‘Mr. Justice Black- 
 stone pursued the same train of observation, and declared that 
 all courts, by which he meant to include the two Houses of 
 Parliament and the courts of Westminster Hall, could have 
 no control in matters of contempt. That the sole adjudication 
 
 64 
 
of contempts, and the punishments thereof, belonged exclusively, 
 and without interfering, to each respective court.' In Watson 
 vs. Williams, 36 Miss. 331, 341, it was said: ‘The power to 
 fine and imprison for contempt, from the earliest history of jur- 
 isprudence, has been regarded as a necessary incident and at- 
 tribute of a court, without which it could no more exist than 
 without a judge. It is a power inherent in all courts of record, 
 and co-existing with them by the wise provisions of the com- 
 mon law. A court without the power effectually to protect itself 
 against the assaults of the lawless, or to enforce its orders, 
 judgments or decrees against the recusant parties before it, 
 would be a disgrace to the legislation, and a stigma upon the 
 age which invented it/ In Cartwright’s Case, 114 Mass. 230, 
 238, we find this language : ‘The summary power to commit 
 and punish for contempts, tending to obstruct or degrade the 
 administration of justice, is inherent in courts of chancery and 
 other superior courts, as essential to the execution of their 
 powers, to the maintenance of their authority, and is part of 
 the law of the land within the meaning of Magna Charta and 
 of the 12th Article of our Declaration of Rights.’ ” 
 
 And then, after citing a number of cases, they cite Eilen- 
 becker vs. Plymouth County, 134 U. S. 31, 36, in which Mr. 
 Justice Miller observes : “If it has ever been understood that 
 contempt proceedings according to the common law for con- 
 tempt of court have been subject to the right of trial by jury, 
 we have been unable to find any instance of it;” citing Inter- 
 state Commerce Commission vs. Brimson, 154 U. S. 447, 488. 
 In this last case it was said : “Surely it can not be supposed 
 that the question of contempt of the authority of a court of 
 the United States, committed by a disobedience of its orders, 
 is triable of right, by a jury.” 
 
 All the authorities to which I have been able to secure any 
 reference whatever, both State and Federal, agree in this propo- 
 sition, that the court is, itself, the sole judge of the facts in these 
 contempt cases, that they are not triable of right by a jury. 
 The court may, if it deems proper, refer an issue to the jury, 
 but there is no constitutional privilege or right of trial by 
 jury. 
 
 This brings us to the other proposition, that, where a court 
 does exercise this inherent right of determining the facts, its 
 judgment is not reviewable by an appellate court. 
 
 Mr. Justice Robb: The other side, as I understand, base 
 their contention upon the provisions of the code. Is it your 
 contention that the code in no way modifies the general rule ? 
 
 Mr. Darlington : In no way whatever. The only provision 
 of the code is, instead of requiring a formal writ of error in 
 law cases, it provides that any judgment or decree — any judg- 
 ment on the law side or any decree on the equity side — may be 
 reviewed on appeal. 
 
 65 
 
The Chief Justice: Any order I thought it was. Possibly I 
 am mistaken. 
 
 Mr. Darlington: Any final order or decree. 
 
 The Chief Justice : My recollection is it is very broad. 
 
 Mr. Darlington. Yes. Lord Coke says he would be ashamed 
 to answer any question as to a statute without looking at the 
 statute. The point I am making is independent of any question 
 whether “order” is included or not. The court makes a dis- 
 tinction between judgments and decrees, and it would be no 
 more competent to bring up for review a contempt proceeding, 
 which under the authorities is a common law proceeding, by 
 appeal, with all the testimony in the case simply reprinted in 
 the record, without being in any manner made a part of the 
 record than it would be competent in a conviction for murder 
 to bring the case up by appeal. 
 
 Mr. Justice Van Orsdel : Would it not be entirely in the 
 power of Congress to make a provision of that kind as to 
 the District of Columbia? 
 
 Mr. Darlington : It might be, but it has not done it. The 
 Supreme Court of the United States in half a dozen cases which 
 I have mentioned in our brief here has held that the dis- 
 tinction between common law and equity appeals is not abro- 
 gated by that provision, that you can not bring the case up by 
 writ of error in an equity suit, and that you can not bring 
 it up by appeal in an action at law. It has been customary 
 in some cases of doubt to bring the case up both ways, as in 
 the case of Ormsby vs. Webb. 
 
 The Chief Justice: Several times they have asked for a writ 
 of error and an appeal both, where they were doubtful whether 
 it was a common law case or an equity case, probate cases for 
 instance, and of course they could come here by the same 
 process. 
 
 Mr. Darlington : The same process of appeal — 
 
 The Chief Justice: And, when they come here, treat it as 
 a law or equity case, according to the real character of the 
 case. 
 
 Mr. Darlington : And they must come here on a record, as 
 a law case or an equity case. 
 
 The Chief Justice: Yes. 
 
 Mr. Darlington: Now this case here is upon an equity rec- 
 ord, without any bill of exceptions, without any agreed state- 
 ment of facts, and without any order of the court making the 
 depositions a part of the record, which, as I will show when 
 I get to that part of the case, the Supreme Court of the United 
 States holds is indispensable for that purpose. 
 
 66 
 
The Chief Justice: The facts must be brought up by a 
 bill of exceptions, but, this being an ancillary question in an 
 equity case, the question is whether it is covered by the same 
 rule. 
 
 Mr. Darlington : I think I will satisfy the court by an ex- 
 plicit declaration by the Supreme Court of the United States 
 that an adjudication of contempt in an equity suit is as dis- 
 tinct and separate a common-law judgment as if it were an 
 indictment, found by a grand jury, and a judgment of convic- 
 tion upon it. At present, however, I am dealing with the 
 question that, on an appeal fropi a proceeding in contempt, the 
 appellate tribunal has no jurisdiction to review the facts and 
 can decide only the questions of law involved. I read In re 
 Debs in support of the position that the facts in a contempt case 
 are for trial by the court, and not by a jury. Now, if such a 
 case comes before the court of review, then, like any other 
 common-law case, the court can only review the questions of 
 law decided by the court below, and can not review the facts. 
 (194 U. S. 336.) That was the case of Bessette vs. The Con- 
 key Company. There is a full and elaborate review in that 
 case of the question whether an adjudication in contempt can 
 be reviewed at all in the Supreme Court of the United States. 
 Down to the act of 1891 that court had held steadily and con- 
 sistently that there could be no appeal to that court in any 
 contempt proceeding, upon the ground, pointed out here, that, 
 whatever the nature of the action or the suit, an adjudication 
 in contempt is a criminal proceeding, and the judgment is a 
 criminal judgment, and that the Supreme Court of the United 
 States had no jurisdiction in criminal cases. Now, the act 
 of 1891 gave them criminal jurisdiction in certain cases. My 
 associate calls my attention to the fact that the case last cited 
 came to the Supreme Court of the United States on a certifi- 
 cate from the Circuit Court of Appeals. In this case, certain 
 persons who were not parties to the appeal had been found 
 guilty of contempt, and the Circuit Court of Appeals certified 
 to the Supreme Court certain questions. One was, whether 
 there was any criminal review at all. The second was, whether 
 these judgments in contempt were not interlocutory judgments, 
 and therefore incapable of being reviewed until there was a 
 final judgment in the case. 
 
 The Chief Justice: Is it your contention that this is a 
 criminal proceeding? 
 
 Mr. Darlington : Yes. 
 
 The Chief Justice: You are standing upon that proposi- 
 tion? 
 
 Mr. Darlington : Yes. 
 
 The Chief Justice: That it is a criminal proceeding? 
 
 67 
 
Mr. Darlington: Yes. The third question certified was 
 whether, if the case were reviewable at all, it would be by 
 appeal like an equity suit, or by writ of error. That is the 
 question we have here. After a discussion covering a number 
 of cases, which held in effect that, prior to the act of 1891, 
 the Supreme Court had no jurisdiction in contempt cases, be- 
 cause they were criminal cases and that court had no criminal 
 jurisdiction, it declared that, by the act of 1891, “appellate jur- 
 isdiction was given in all criminal cases by writ of error, either 
 from this court or from the Circuit Court of Appeals. As, there- 
 fore, the ground upon which a review by this court of a final 
 decision in contempt cases was denied no longer exists, the 
 decisions themselves cease to have controlling authority, and 
 whether the circuit court of appeals have authority to review 
 decisions in contempt in the District and Circuit courts, depends 
 upon whether such questions are criminal cases — ” 
 
 The precise identical question we are considering here : Are 
 they criminal cases? 
 
 “That they are criminal in their nature has been constantly 
 affirmed. The orders imposing punishments are final. Why, 
 then, should they not be reviewed as final decisions in other 
 criminal cases? It is true, they are peculiar in some respects, 
 rightfully styled sui generis. They are triable only by the court 
 against whose authority the contempts are charged. No jury 
 passes upon the facts, no other court inquires into the charge — ” 
 citing a number of cases. Then it states what I have already 
 quoted, that the facts are for trial by the court — (In re Debs.), 
 after which the opinion goes on to say : 
 
 “But the mode of trial does not change the nature of the 
 proceeding, or take away the finality of the decision. So then, 
 by section 6 of the Courts of Appeals Act, the Circuit Courts 
 of Appeals are given jurisdiction to review ‘the final decision 
 in the District Court and the existing Circuit Courts in all 
 cases other than those provided for in the preceding section 
 of this act, unless otherwise provided by law,’ and the preceding 
 section gives to this court jurisdiction to review convictions in 
 only capital or otherwise infamous crimes, and no other pro- 
 vision is found in the statutes for a review of the final order in 
 contempt cases, upon what satisfactory ground can it be held 
 that the final decisions in contempt cases in the District or 
 Circuit courts are not subject to review by the Circuit Court 
 of Appeals?” 
 
 That is, they are criminal cases, falling within the class of 
 capital or otherwise infamous crimes, and hence are subject to 
 review. 
 
 “Considering only such cases of contempt as the present — 
 that is, cases in which the proceedings are against one not a 
 party to the suit, and can not be regarded as interlocutory — ” 
 
 I want to invite the attention of the court to the fact that 
 
 68 
 
in this case the Court limits its decision to the case of a per- 
 son other than the parties to a suit, not in connection with the 
 inquiry whether it is a criminal case or not, but because that 
 disposes of the question whether the order of contempt in the 
 case before the court was an interlocutory judgment. In the 
 case, the only proceeding in it against the party appealing was 
 his commitment for contempt. 
 
 “Considering only such cases of contempt as the present — that 
 
 is, cases in which the proceedings are against one not a party 
 to the suit, and which, therefore, could not be regarded as inter- 
 locutory — 'we are of opinion that there is a right of review in 
 the Circuit Court of Appeals. Such review must, according 
 to the settled law of this court, be by writ of error/ citing 
 Walker vs. Dreville, 12 Wall. 440; Deland vs. Platte County, 155 
 U. S. 221 ; Bucklin vs. The United States, 159 U. S. 680. On 
 such a writ only matters of law are considered. The decision of 
 the trial tribunal, court or jury, deciding the facts, is conclusive 
 as to them.” 
 
 In other words, under In re Debs, a jury trial is not a mat- 
 ter of right. The court alone may decide the facts; the court 
 if it chooses to do so may refer the question to a jury, but, 
 whether the facts are decided by the court or by a jury, the 
 finding is as to them conclusive, and the appellate tribunal can 
 consider only matters of law. 
 
 The Chief Justice: What was the Conkey case? How were 
 the parties outside charged with violating the order? What 
 was the nature of the contempt ? 
 
 Mr. Darlington : The nature of the contempt, I think, is 
 not stated in the opinion. 
 
 Mr. Beck: It is one of those labor injunctions. 
 
 Mr. Darlington: The injunction restrained the defendants, 
 their confederates, agents and servants, etc. A person, not a 
 party, but with knowledge of the restraining order, had violated 
 
 it. 
 
 Of course there may be many cases in which persons not a 
 party to a suit may be guilty of contempt. For example : Take 
 the Savin' case, where one not a party to the suit tampered 
 with a witness. 
 
 The Chief Justice: Whether it was a violation by a party, 
 or a contempt of court, it had no relation to the cause of action 
 generally as to the parties generally who were before the court. 
 
 Mr. Darlington: It was an injunction forbidding these or- 
 ganized labor parties from interfering with the complainant’s 
 business. A member of organized labor who was not a party to 
 the suit, knowing of the injunction, violated it. If he had 
 been a party to the suit, the court intimates that there might 
 have been a question whether he would not have to wait until 
 
 69 
 
after final decree before appealing. Not being a party to the 
 suit, the order committing him was not an interlocutory, but 
 a final order as to him, and, therefore, might be reviewed 
 without waiting until the final decree; held, it could be brought 
 up only by a writ of error, as a common-law proceeding, and one 
 in which the court could not consider the facts, but matters 
 of law only. 
 
 In the same volume (194 U. S. 458) that Bessette vs. Conkey 
 Co. is followed by the case of the Christiansen Engineering 
 Company. In that case there had been a kind of hybrid in- 
 junction, that is, an injunction or order facing both ways; one 
 both allowing compensation and inflicting punishment — imposing 
 a fine for a contempt, part of which went to a party as com- 
 pensation and the other part to the Government. Following the 
 analogy in Worden vs. Searls, the lower court had held that, 
 inasmuch as a part of this fine went to the complainant, and 
 was an actual money decree, a civil remedy, it might be brought 
 up by appeal. The case was brought to the Supreme Court of 
 the United States, which reversed this ruling, holding that, 
 if any part of the penalty went to the Government and not to 
 the opposing party, as to that part of the penalty it was a pun- 
 ishment for violating the dignity of the court, which could come 
 up only by error and not by appeal, the distinction being between 
 a proceeding in which the fine is imposed by way of compensa- 
 tion t6 the party injured by the disobedience, and where it is 
 by way of punishment for an act done in contempt of the 
 power and authority of the court, as pointed out in the Bes- 
 sette case, and in some other cases referred to in the opinion. 
 After referring to those cases, the court concludes : 
 
 “In the present case, however, the fine payable to the United 
 States was clearly punitive and in vindication of the authority 
 of the court, and, we think, as such it dominates the proceed- 
 ings and fixes its character. Considered in that aspect the 
 writ of error was justified, and the Circuit Court of Appeals 
 should have taken jurisdiction — ” on a writ of error, and not by 
 requiring the case to be brought up on appeal. 
 
 Still another contempt authority is the recent case of Continen- 
 tal Gin Company vs. Murray & Company, Circuit Court of 
 Appeals, Third Circuit, decided in June of last year, the opinion 
 being by Mr. Justice Moody. This was a proceeding in con- 
 tempt against a party to the suit. 
 
 Mr. Ralston : The punishment for contempt was against one 
 party to the suit? 
 
 Mr. Darlington: This is reported in 162 Fed. Rep., page 873. 
 The defendant in error, Murray & Company, brought suit 
 against the plaintiff in error, the Continental Gin Company, al- 
 leging an infringement of a patent. The Circuit Court had en- 
 tered an interlocutory decree for an injunction against the Con- 
 tinental Gin Company, of which decree the other plaintiffs in 
 
 70 
 
error had due notice. “Subsequently on motion of the Murray 
 Company, these plaintiffs in error were adjudged by the Circuit 
 Court guilty of contempt for disobedience of the injunction, 
 and ordered to pay a fine of $250 for the use of the United 
 States, $500 to the complainants, as counsel fee, and the cost 
 of the proceeding. This order was stayed, upon the giving of 
 the bond, pending appeal.” 
 
 It is a case, then, of a judgment for contempt against both 
 a party to the suit, and against other persons who were not 
 parties to the suit. Says the court : 
 
 “It is settled that a judgment like this may be reviewed in 
 this court by writ of error. (Matter of Christiansen Engineer- 
 ing Company, 194 U. S.) — which was a case of an injunction 
 against a party to the suit exclusively. But upon that writ, 
 only matters of law can be considered. (Bessette vs. W. B. 
 Conkey Company, 194 U. S. 324.) The assignments of error 
 argued before us seem chiefly, to say the least, to deal with 
 matters of fact. Where, upon writ of error, the plaintiff in 
 error sought to review the facts, the Supreme Court has recent- 
 ly said : ‘But this overlooks the vital distinction between ap- 
 peals and writs of error which has always been observed by this 
 court, and recognized in legislation. An appeal brings up ques- 
 tions of fact as well as of law, but upon a writ of error only 
 questions of law apparent on the record can be considered, and 
 there can be no inquiry whether there was error in dealing with 
 questions of fact.’ ” 
 
 Of course with us an appeal brings up either a common law 
 cause or an equity cause; but it brings up a common law cause 
 for the purpose and with the jurisdiction to deal, only, with 
 questions of law and not with questions of fact; and, if I 
 am correct in the position that a proceeding in contempt, al- 
 though arising out of an equity suit, is a common law proceed- 
 ing, then it follows that when the appeal brings the case here, 
 it brings a common law case and we must have a common law 
 record. The court continued : 
 
 “There is, however, an even more fundamental difficulty in this 
 cause. There is no record in the proper sense of the word, in 
 which the assignments of error can be applied. The cause 
 was heard in the Circuit Court upon affidavits, with exhibits at- 
 tached. There was no finding of facts, nothing in the nature 
 of a special verdict, nor a request for a ruling upon the facts 
 nor upon any question of law, and no bill of exceptions. There 
 was a general finding made by the court, ‘That the said de- 
 fendants are in contempt of the injunction heretofore issued in 
 this cause.’ In a case where the trial court set aside its judg- 
 ment, rendered and satisfied seventeen years before, the Su- 
 preme Court, with expressed hesitation, looked into the affidavits, 
 saying: ‘As the order setting aside the original judgment refers 
 to the notice of motions and annexed affidavits, as the foundation 
 
 71 
 
of that order, and identifies those papers as they are found 
 in the transcript, we are of opinion that they may be consid- 
 ered as a part of the record so far as the question of the 
 authority of the court to make that order is involved/ That is, 
 on a question of jurisdiction the affidavits which were printed 
 in the record as the depositions are here, could be looked into 
 only because the lower court in its opinion had identified them 
 and declared them to be the basis of its action. Looking to 
 these affidavits, in connection with what is more strictly a part 
 of the record, the court held that the order, after the term had 
 expired, was beyond the authority of the court. It is true that, 
 in the case at bar, the judgment recited that the cause was 
 heard ‘upon affidavits in support of and in opposition to’ the 
 motion, but the affidavits were not, as in the case cited, specifically 
 identified.” 
 
 In this case there is no identification by the court of any of 
 these depositions. 
 
 “We think this,” continues the opinion, “together with the 
 agreement of the parties to print the affidavits in the record, is 
 not enough to take the case out of the general rule that, in 
 the absence of finding of facts, a special verdict or a request 
 for a ruling, and a bill of exceptions, the evidence taken in the 
 court below — is no part of the record. In Suydam vs. Wil- 
 liamson, 20 How. 427, it was said : ‘Evidence, whether written 
 or oral, and whether given to the court or the jury, does not 
 become a part of the record unless made so by some regular 
 proceeding at the time of the trial and before the rendition of 
 the judgment/ ” 
 
 Was that done in this case? 
 
 The court cites a number of authorities which I will not 
 read. They will be found in the opinion. 
 
 Applying this rule to the record, it leaves nothing in it except 
 the order for the attachment, the order to show cause, and 
 the judgment. 
 
 Now, in this case there is no semblance of an order of d:he 
 court, either before the judgment or afterward, making these 
 depositions, which compose the bulk of this record, part of 
 the record ; and in the case last cited the court declares that even 
 an agreement between counsel to print them as a part of the 
 record does not make them so, and the reviewing court can 
 not consider them unless they are made a part of the record 
 by the court, specifically. 
 
 This somewhat anticipates one feature of this case about 
 which very little has been said, namely, the motion to dis- 
 miss, on the ground that there is no appeal here which this 
 court can consider. That motion is on three grounds: First, 
 that the judgment of the court below is reviewable by writ of 
 
 72 
 
error only, and not by appeal ; secondly, that the record contains 
 no bill of exceptions, agreed statement, or other appropriate 
 basis for a review of the judgment in this court; and, thirdly, 
 that the appeal presents no case susceptible of review by the 
 court upon the appeal therein. These three grounds amount to 
 one, namely, that this is a common-law proceeding, and we have 
 here no common-law record. 
 
 I want to say to the court, outside of the record, but I am 
 sure my friends will agree with me that I am stating the fact, 
 that there has been no disposition on the part of the appellee 
 in this case to have this case go off on any technical ground. 
 This defect in the appeal, and the authorities on which we are 
 now contending it is improper, were called to the attention of 
 opposing (counsel in the court below during the term, and 
 within two days after the judgment, with a proposition to 
 reopen the latter and make up a proper bill of exceptions in 
 order to bring the case properly here. My friends may have 
 some answer to the authorities I have read. We are not advised 
 of them. I have called the court’s attention to the authorities 
 upon which the motion rests, and to which so far no answer has 
 been made — we believe none can be. 
 
 Mr. Justice Van Orsdel : They all appear on your brief? 
 
 Mr. Darlington : They all appear on the brief. I will say 
 to your Honors that we are not here referring to the necessity 
 of an actual, technical writ of error. We concede that a com- 
 mon-law case may be brought to this court upon appeal under the 
 terms of the Code, just as it could have been done to the 
 General Term, before this court was created. Both common- 
 law judgment and equity decrees were brought to the General 
 Term by appeal, and not by writ of error; but, as the Supreme 
 Court has in a number of cases pointed out, that does not 
 abolish the distinction between common law records and equity 
 records. That does not impose upon the appellate tribunal the 
 obligation, nor give it the power, to review the facts in a law 
 case, or to perform any other duty, upon a record which con- 
 tains no exceptions and sets forth no objections to any part of 
 the action of the court below, but simply prints five or six hun- 
 dred pages of depositions, which are not made a part of the 
 records by any appropriate proceeding, and asks the court to 
 review the facts and find in them error, if it can do so. 
 
 Another authority upon the question to which I have referred, 
 namely, that a proceeding in contempt, although it grows out 
 of an equity suit, is a common-law proceeding, a criminal case, 
 is the leading case of New Orleans vs. Steamship Company, 20 
 Wall., 392. I call it the leading case, because it is quoted 
 in almost every subsequent case upon the subject. In it the 
 court says : 
 
 “Contempt of court is a specific criminal offense. The im- 
 
 73 
 
position of the fine was a judgment in a criminal case. That 
 part of the decree is as distinct from the residue as if it were 
 a judgment upon an indictment for perjury committed in a de- 
 position read at the hearing.” 
 
 Could anything be more absolutely conclusive on this question 
 than this authority? 
 
 So, in re Kearney, 7 Wheaton, 43 : 
 
 “When a court commits a party for contempt, their adjudica- 
 tion is conviction, and their commitment in consequence is ex- 
 ecution. And so the law was settled upon full deliberation in 
 the case of Brass vs. Crosby, Lord Mayor of London, 3 Wilson, 
 188.” 
 
 That is the statement of the Supreme Court in re Kearney, 
 7 Wheaton, 43. 
 
 I will not delay the court further on this point. There are 
 other authorities that are in our brief. We have confined our- 
 selves to citations from the Supreme Court of the United States. 
 There are a great many cases, because the subject is a very 
 large one, and there are very many decisions. So far as I 
 know, they are uniform. The Supreme Court, in repeated de- 
 cisions, has held that a proceeding in contempt, although aris- 
 ing out of an equity suit, is a criminal case, and just as dis- 
 tinct from the equity suit as though it were a trial in a crimi- 
 nal case upon indictment found by a grand jury. The only 
 exception to that rule is illustrated by the case of Worden vs. 
 Searls, 121 U. S. 14, 17, and that case singularly illustrates the 
 maxim that the exception proves the rule. In Worden vs. 
 Searls, the action was in equity for the infringement of a 
 patent, and there was an injunction against the defendant, 
 forbidding him to continue the infringement pending the suit — 
 an injunction pendente lite. It was not a third person, but the 
 enjoined defendants who infringed or disobeyed that injunction, 
 twice, during the progress of the case. In each instance the 
 court referred the cause to an examiner to ascertain the amount 
 of the profit resulting from the infringement. Upon each of 
 those references the court passed an order fining the defendant 
 the amount of the profit which he had made by the infringement, 
 and in addition, the cost to the complainant of prosecuting the 
 contempt proceeding, and directed these fines to be paid to the 
 complainants. In other words, under the guise or form of a 
 contempt proceeding, it accorded simply a civil remedy, a civil, 
 pecuniary remedy to the complainants for the infringement of 
 the injunction. 
 
 Mr. Justice Van Orsdel : Awarded damages? 
 
 Mr. Darlington : Yes. The Supreme Court said it would not 
 criticize the propriety of that action at all, as it was not necessary 
 to do so in that case. And it held that the case might be brought 
 
 74 
 
up by appeal, because it was not a punishment at all, but prac- 
 tically a civil proceeding to recover damages for infringement, 
 and in such a case as that, they would entertain an 
 appeal from the order in the contempt case. The lower 
 court in the Christiansen case held that, where the fine went 
 partly to the government and partly to the complainant, the case 
 should come up by appeal and not by error. The Supreme Court 
 reversed that, holding that if any part went to the government 
 it must come up by writ of error. 
 
 And now we come to a fact of the Worden-Searls case which 
 is extremely interesting and I think is entirely conclusive of 
 every legal question involved in this case. The Supreme Court, 
 entertaining the cause' on appeal for the reasons which I have 
 stated, held that the power of the court to grant the injunction 
 depended on whether there was an infringement; that this, in 
 turn, depended upon whether the patent was valid ; that the 
 patent was void, that, therefore, the injunction fell, and the 
 contempt proceedings fell with it; that the case must be referred 
 back to the trial court with instructions to dismiss the bill, and 
 that with the reversal of the decree and the dismissal of the 
 bill must go the fines in the contempt proceeding, because those 
 fines were merely fines to the complainant for the infringement 
 of his alleged patent, when he did not have any. But the bill 
 was to be dismissed “without prejudice to the power and right 
 of the circuit court to punish the contempt referred to. The 
 preliminary injunction was in force until set aside.” 
 
 Now, this was not the case of a partial modification such 
 as we have here, but a case of utter sweeping out of the whole 
 case from the court, the decree, the fines, the bill and all. 
 
 The Chief Justice : If the court decree violated a Constitu- 
 tional provision, then the decree would be absolutely void, but 
 the matter of whether a patent was void or not was a matter 
 that was within the jurisdiction of the court. 
 
 Mr. Darlington: I hope your Honor has not made up your 
 /mind that if a court decides a case against a Constitutional right 
 its action affects the question of jurisdiction. 
 
 The Chief Justice: No, not that; but I mean that if the 
 court exceeds its constitutional power by an order in violation 
 of the Constitution so much of that order must necessarily be 
 void, must it not? 
 
 Mr. Darlington: That, I think, is contrary to all decisions. 
 Whether the order is void or not depends on whether the court 
 had jurisdiction of the parties and the subject matter. If the 
 court erred in construing the law, either the statutory law or 
 the common law, if it had jurisdiction, its order must be obeyed. 
 
 Mr. Justice Van Orsdel : But if it errs in exceeding its juris- 
 diction to some extent — does it go that far? 
 
 75 
 
Mr. Darlington: No, sir; but the point I am making is that 
 if the court misinterprets the Constitution — if a question of 
 constitutional right was presented between the parties, the court 
 either has the right to hear and determine that question or it 
 has not. If it has the right to hear and determine the question, 
 then the fact that it determines it erroneously does not affect 
 its jurisdiction. That must necessarily be true, because the court 
 has no more power to take away from a man a statutory right 
 than it has to take away from him a constitutional right, and 
 has no more power to take from a man a common-law right than 
 a statutory right. The test is, has it the power to hear and 
 determine the cause? If it has that power, then its order must 
 be obeyed until some competent tribunal sets it aside. 
 
 The Chief Justice : But still the question in this case is, had 
 the court the power to enjoin the publication? Now a majority 
 of the court held that it did, if that publication was a step in 
 a criminal conspiracy, but the power to enjoin it is a question 
 of the jurisdiction of the court. 
 
 Mr. Darlington: That existant power does not determine the 
 question of the jurisdiction of the court, as I undertake to say. 
 In the Worden case the court had no power to enjoin the de- 
 fendant from infringing a patent that was a void patent, but it' 
 did have power to decide the question. If the record presented 
 a case which called upon the court to exercise its right to hear 
 and determine the question, that was jurisdiction, and an error 
 in the exercise of that power does not destroy the jurisdiction. 
 And your Honors can see how essential this is to orderly pro- 
 cedure. If in this case, or in any case, a litigant who is dissat- 
 isfied with the decision of a question upon an application for a 
 restraining order, or with a final decree, can set up his judgment 
 against that of the court and can say, as these parties have 
 said : “We know we are violating this order ; we are going to 
 keep on violating it, we do not agree with the court; the court 
 has decided that the constitutional privilege or freedom of 
 speech and press does not allow us to say or do certain things 
 for an unlawful purpose, but we claim that it does, and we are 
 going to keep on doing them — ” if in this case that course can 
 be pursued, it can be pursued in any case. Any litigant may 
 defy the power, the authority of the court, and if on final 
 hearing the appellate court may think that the court below went 
 too far; not that it did not have jurisdiction to decide the case, 
 but that it did not have power to decide it in the way it did — 
 
 The Chief Justice: That it committed error. 
 
 Mr. Darlington : Committed error. The point I want to 
 make is that jurisdiction does not in any manner involve the 
 correctness of the decision. Jurisdiction is the right to hear a 
 question and decide it, and the authorities are that even on 
 constitutional questions, if the court has the right to decide a 
 question at all, that constitutes jurisdiction, and if it decides a 
 constitutional question erroneously that is but error. 
 
 76 
 
The Chief Justice : There is no difference about that propo- 
 sition. The question is whether the court has jurisdiction at 
 all in the particular thing, or whether having jurisdiction of it, it 
 exceeds its jurisdiction, goes beyond the power given to it. 
 
 Mr. Darlington: Let us see if we can bring that down to a 
 concrete proposition. This court has said in its opinion — I 
 think the court has agreed to this proposition — that these defend- 
 ants could not be enjoined from distributing the Federationist. 
 They could be enjoined from printing in the unfair list in the 
 Federationist the name of the complainant. 
 
 Mr. Justice Von Orsdel : For the purpose of a boycott. 
 
 Mr. Darlington: For the purpose of a boycott, but they 
 could not be enjoined generally from issuing the Federationist, 
 though with that list in it. Had the court below the right to 
 decide that question in one way or the other? The complainant 
 filed a bill alleging that they were doing this thing, and that it 
 had a right to an injunction against them. Had the court below 
 the right to decide whether or not it had that right? If not, 
 where does this court get jurisdiction to decide that the lower 
 court decided it erroneously? How does this court acquire a 
 greater jurisdiction to decide that question than the court below 
 possessed? 
 
 Take another view of the action of the court below. Was 
 there any question presented in the case which the court had 
 not the right to decide? Suppose, for example, the court below 
 had decided the question the other way — had decided that the 
 Federationist could not be enjoined from circulation, and that 
 question had come up again in a collateral way between the 
 same parties, and the Federation of Labor had said, “Here 
 is an adjudication; this is res judicata. This very question was 
 raised in the Bucks Stove & Range Company vs. the Federation 
 of Labor in the Supreme Court of the District of Columbia, 
 and the court decided against you.” Would this court have 
 heard the Stove and Range Company in saying, “This is not 
 res judicata, the court had no jurisdiction, the court had no 
 power to pass upon that question at all” ? Could this court have 
 held that the court below had no power to hear and determine 
 that question either way, right or wrong? Unless the court 
 could so hold, then the fact that the decision was against the 
 alleged constitutional right, and this court has since held that 
 it should have been in favor of the constitutional right, does 
 not present a question of jurisdiction at all. It is the question 
 of an erroneous decision of a claim of constitutional right. I 
 was coming to that later, but the point has been decided, even 
 with respect to a constitutional question. Thus, where one 
 claimed an injunction against the sale of oleomargarine under 
 a law prohibiting its sale and the court below granted the injunc- 
 tion, there being no claim that the oleomargarine was sold under 
 a false or a fictitious name, but that the law was against the 
 
sale of it at all. The constitutional objection was raised that 
 such a prohibition was beyond the power of the legislature, that 
 a man has a right to sell his product; but the court said the 
 question was whether the court below had the right to decide 
 whether there was a violation of a constitutional right. Did 
 the court have jurisdiction to hear and determine that question? 
 If it did have the right to hear and determine it, it had jurisdic- 
 tion, and, even though it might have decided the constitutional 
 question erroneously, that was error, and not a want of juris- 
 diction. 
 
 Now, coming to the assignments of error, most of which I 
 shall pass over very rapidly because they are treated rather 
 fully in the brief, and because under all of them but two ques- 
 tions are properly raised as we see it, the Supreme Court of 
 the United States in the decisions which I cited have conclusively 
 established the principle that contempt proceedings are common 
 law proceedings, that they are judgments in criminal cases, and 
 that the court above can not review the facts, even if it had a 
 record which would present them for review otherwise, and so 
 I think it would be a waste of time to spend very much time 
 over the questions of fact attempted to be raised. 
 
 The first assignment of error, however, is on the ground that 
 the punishment is excessive, and we find in the opposing brief 
 a long list of legislative enactments in various states prescribing 
 the length of time for which, in those states, imprisonment may 
 be imposed in cases of contempt. But what bearing have they 
 here? We have no such law here. Those statutes have no effect 
 in the District of Columbia, nor is there any instance cited which 
 we have been able to find, in which the appellate court has held 
 that it had anything to do with the severity of the punishment 
 for contempt, except a case in North Carolina and a case in 
 Illinois. In the North Carolina case the statute provided that 
 the imprisonment for contempt should not exceed thirty days, 
 the court imposed sixty days, the statute provided that the fine 
 should not exceed $250, the court imposed $2,000. 
 
 Mr. Justice Robb: It is your contention that the language 
 of the code is not susceptible of a construction that would 
 enable this court to modify the penalties imposed upon these 
 defendants ? 
 
 Mr. Darlington : Yes, sir. I presume your Honor has in mind 
 the provision of the code which says that any final order, judg- 
 ment or decree may be reviewed by appeal. 
 
 Mr. Justice Robb: Section 226? 
 
 Mr. Darlington : Yes. 
 
 Mr. Justice Robb: It provides that the Court of Appeals shall 
 review such order, judgment or decree, and confirm, reverse or 
 modify the same as shall be just. 
 
 78 
 
Mr. Darlington : Yes. Now, your Honors have had that 
 matter before you in the case of Raymond vs. The United States. 
 That was what the Supreme Court of the United States says 
 this is, a judgment in a criminal case. A man had been convicted 
 of libel and had been sentenced to five years at hard labor, and 
 among the assignments of error was that this was an excessive 
 and cruel punishment, the same contention that we have here. 
 Notwithstanding the power of this court to revise or modify 
 final judgments or decrees, this court held that it had no power 
 to revise the sentence imposed, that that was a question for the 
 court below. Your Honors will find that case in 25 Appeals, 
 D. C., 561, in which the court said: 
 
 “Not so much the extent as the nature of the punishment it is 
 that makes it cruel and unusual.” 
 
 To illustrate, suppose a man is tried for murder in the court 
 below, and it is one of those cases of murder in which there 
 may be either capital punishment or imprisonment for life. The 
 court below sentences to death. Would it be contended that this 
 court had power to modify that sentence, to reduce it to impris- 
 onment for life under that provision? Such a claim has never 
 been made, so far as I know, except in this case, and the case is 
 in all respects governed by Raymond vs. The United States, 
 unless this court shall find that I am in error in the proposition 
 submitted in these decisions of the Supreme Court of the United 
 States that the judgments in these contempt proceedings are 
 judgments in criminal proceedings, just as completely as if they 
 had been found on indictment. Nor is that new doctrine else- 
 where. In Rogers Manufacturing Company vs. Rogers, 38 
 Conn. 121, the court says: 
 
 “We think the amount of the fine and duration of imprison- 
 ment are within the sole discretion of the Superior Court, and 
 no court of review has any control over the matter.” 
 
 In re Consolidated Grainery Company, 80 Vt. 63 : 
 
 “The power to punish for contempt is a discretionary power, 
 and must be freely exercised, and, when so exercised in a case 
 within the discretion of the court, no review can be had.” 
 
 The Supreme Court of the United States in re Debs : 
 
 “This principle, that every court, at least of the superior kind, 
 in which great confidence is placed, must be the sole judge of last 
 resort of contempts arising therein, is more specifically defined 
 and more emphatically enforced in the two subsequent cases of 
 the Queen vs. Patty et. ah, and King vs. Crosby.” 
 
 In re Childs, 22 Wall, 168: 
 
 “The exercise of this power,” that is, the power of courts to 
 punish by fine and imprisonment for contempts of their author- 
 ity,' “has a twofold aspect, namely, first a proper punishment 
 of the guilty party for his disrespect to the court or its order. 
 
 79 
 
and, secondly, to compel his performance of some act or duty 
 required of him by the court which he has refused to perform. 
 In the former case, the court must judge for itself and measure 
 the extent of the punishment with respect to the gravity of the 
 offense. In the latter case the party refusing to obey should 
 be fined and imprisoned until he performs the act required of 
 him, or shows that it is not in his power to do so.” 
 
 In the Raymond case the court held that, although it had no 
 power to modify the judgment on the ground of its severity or 
 cruelty, yet the court had erred as to the verdict in receiving 
 certain evidence in regard to the past history of the appellant, 
 and therefore they set aside the sentence, not disturbing the 
 verdict, and sent the case back for resentence. 
 
 The Chief Justice: The Court withdrew that decision. 
 
 Mr. Darlington : I was not aware of that fact. 
 
 The Chief Justice: Yes. 
 
 Mr. Darlington: Now, the second assignment of error has 
 already been largely discussed. It is that the court below erred 
 with respect to finding that Mr. Gompers rushed the publication 
 and circulation of the Federationist of January, 1908; or, perhaps 
 not, so much in finding that he did it, since he declares he did it 
 for the express purpose of anticipating the effects of the injunc- 
 tion and because he was not willing that the court or anybody 
 else should interfere with the appearance of complainant’s name 
 in the “We Don’t Patronize” list in that issue of the publication. 
 Was that contempt? The final court did not so find. It is 
 only by the most labored process of reasoning, as I think your 
 Honors will agree when you read the brief on the other side, that 
 that particular act plays any part at all in the judgment. It is 
 referred to in the opinion in giving a history of the case, but the 
 judgment of the court in that connection is for the issuance of 
 those publications after the decree operated, the testimony show- 
 ing that wjthin a month after the bond was filed a hundred copies 
 were issued, and that they continued afterward. 
 
 But suppose the case rested there; suppose we had simply the 
 case of a party, knowing that an injunction has been granted, 
 that there must be a bond, and that there must be a little interval 
 of time before his opponent can give that bond, and he hurries 
 to do the thing enjoined before the bond can be given, in order 
 to defeat the effect of the court’s decision. Is that not con- 
 tempt? Our friends cite no authority. This is not a new 
 question. It was threshed out before the court below at con- 
 siderable length. They produced no authority whatever, they 
 produce none now, that such conduct is not contempt. We, on 
 the other hand, have cited a number of authorities, going back 
 as far as the time of Lord Hardwick, that this is contempt. For 
 example, in Jarvis vs. Duncan, 18 Vesey, Lord Eldon said: 
 
 80 
 
“A party cannot be committed for a breach of an injunction, 
 that express feature of contempt, unless there is an injunction. 
 On the other hand, if he was present when the order was made 
 the court will not permit him to elude its justice by doing that 
 before the injunction is sealed which, if it were actually sealed, 
 would be contempt.” 
 
 The argument of our friends is that there was no injunction 
 until the bond was given. Lord Eldon says there can be no 
 contempt for breach of an injunction unless there is an injunc- 
 tion; but, on the other hand, if the defendant was present when 
 the order was made, the court will not permit him to do that 
 whichj if it were actually sealed, would be contempt. 
 
 Now, as pointed out by Mr. Beck in the argument below, at 
 that time in the history of jurisprudence it was not the allow- 
 ance of an injunction by the chancellor which gave to it its effect, 
 but the putting of the King’s seal on the paper was the act which 
 made it operative, just as with us the giving of the bond makes 
 it operative. In this case the offending party had heard the 
 decision of the court that the injunction should be allowed, and 
 thereupon, before the seal had been put to the paper, in fact, 
 before the decree had been drawn up so that the seal could be 
 put to it, and therefore at a time when in fact there was no order 
 existing, he went out and did the act against which the injunctions 
 had been allowed, and the court, stating in terms that there can- 
 not be any contempt of an injunction before there is an injunction, 
 declares that, if the party was present when the order was 
 allowed, he cannot elude justice by doing that before it was 
 sealed which, if it were sealed, would be contempt. 
 
 So again in James vs. Downs, 18 Vesey, 522, the defendant 
 had done the thing after the order had been pronounced but 
 before the seal had been attached ; the chancellor held that this 
 was anticipatory contempt and punished it accordingly. 
 
 In the still earlier case of Skipp vs. Harwood, reported in 3 
 Atkins, Lord Hardwick said : 
 
 “Where a person attends the action to which he is a defendant 
 the whole tirhe of the hearing, and had notice of the decree by 
 being present when it was pronounced in court, if he does any 
 act that is in contravention of the decree, he is guilty of contempt 
 and punishable for it, notwithstanding that the decretal order 
 is not drawn up.” 
 
 If the court has announced its intention of granting an injunc- 
 tion, and the party goes out and does the act before the decree is 
 drawn up, he is guilty of anticipatory contempt. And this is the 
 unbroken line of the decisions ever since. In Endicott vs. 
 Mathis, 9 N. J. Eq. 1 14, the court said : 
 
 “With the view of maintaining the authority of the court, and 
 of giving vigor to its jurisdiction, courts of chancery have de- 
 
 81 
 
cided that a party is in contempt who knows that an injunction 
 is issued or is about to issue against him, but commits the act 
 before the injunction has been formally issued and served upon 
 him,” citing Hull vs. Thomas, 3 Edw. Chancery Rep. 236. 
 
 This is fiot the case of a man doing what he would naturally 
 do up to the time the bond is filed. If these parties had stood 
 by until December 25, and then had normally issued their paper, 
 on its proper day of issue, it might be different; but here is a 
 case where they avowedly rushed it out, hurried the time, for 
 the express, admitted purpose of outwitting the court and nullify- 
 ing its action. I submit if the court had based its judgment on 
 that act alone, under the authorities, it was contempt. Your 
 Honors are asked to say that the Court below erred in following 
 all the decisions, for more than one hundred years, and in not 
 following the claims of counsel, unsupported by any authority. 
 
 The third assignment of error is that the court erred in paying 
 any attention to the November 26 letter. In November, 1907, 
 the case had been argued and submitted to the court, and was 
 under consideration. The decision was not announced until 
 December 18. In November, 1907, these defendants issued a 
 circular letter advising members and friends of organized labor 
 that the case had been argued, that the decision would follow, 
 but, no matter what the decision might be, it could not alter 
 the case, that no injunction could preclude them from continuing 
 the boycott against the complainant. 
 
 I say the court does not base its action at all upon that letter, 
 but in giving a history of the case it mentions it, and that is said 
 to be error. If so, this court has also been guilty of error, be- 
 cause in its statement of the case it mentions that letter among 
 other things as a part of the history of the case, and it goes 
 further than the court below. It mentions it as evidence of the 
 fact that the boycott in this case was the result of the acts of 
 these defendants. 
 
 The fourth assignment of error is the alleged absence of any 
 connection between the speeches and communications of the ap- 
 pellants and the violation of the injunction. That is, that the 
 court erred in finding that the various speeches, communications, 
 etc., made and published by the defendants before the injunction 
 became effective, had any connection with the violation of the 
 injunctions. In other words, that the court considered those 
 speeches and communications of the appellants before the in- 
 junction was issued, in its opinion. The judgment does not find 
 them guilty of any speeches or communications prior to the 
 issuance of the injunction, or the giving of the bond; but in its 
 narration, its statement of the case, it mentions these various 
 speeches in which these parties had expressly declared that they 
 would not obey the injunction if it were granted, and the narra- 
 tion of these things in the opinion is assigned as error. 
 
 82 
 
Was it error? Suppose A is on trial for the murder of B. 
 He kills B under certain circumstances. Is it error to show that 
 for ten years he has been saying that if B ever gave him the 
 provocation which he ultimately gave, he intended to kill him? 
 Would that be error? Is it not competent upon the question of 
 animus? This court was of that opinion. At page 159 of the 
 Law Reporter of the present year this court says: 
 
 “It is also highly significant that, throughout the country, the 
 notice to dealers that they must stop handling the complainant’s 
 product was not the sporadic and unauthorized act of the individ- 
 ual unions, but, on the contrary, the act of accredited leaders. 
 From whom did they derive their inspiration? Was it a mere 
 coincidence that they acted in such perfect harmony to the same 
 end? We think not. In the editorial to which allusion has been 
 made, and which was brought to the attention of and endorsed 
 by the Federation in convention assembled, Mr. Gompers con- 
 tended for the right to do, and advised the doing, of exactly 
 what was done in this case. The bill of complaint was filed 
 August 19, 1907. The defendants were therein notified of the 
 exact nature of the boycott that was then being prosecuted against 
 the complainant; but, notwithstanding the knowledge thus ob- 
 tained, we find the Executive Council of the Federation on 
 November 26, 1907, reaffirming, without qualification and in an 
 official statement, as above stated, what had been done. In view 
 of all this, we think there is no room for doubt that this com- 
 bination or boycott which had its inception in St. Louis, was 
 inaugurated in pursuance of a settled policy of the American 
 Federation of Labor, and that, when the Federation in due course 
 endorsed and approved the same, it acted with full knowledge 
 of not only what had already occurred, but of what would be 
 likely to follow. If, therefore, anyone is responsible for what 
 happened, these defendants certainly are.” 
 
 The words, “We find the executive council of the Federation 
 on November 26, 1907, reaffirming, without qualification and in 
 an official statement as above stated,” refer to the letter of that 
 date, which, it is now said it was error for the court below to 
 mention in its opinion. In other words, this court agrees with 
 the court below that these proceedings, speeches, acts did occasion 
 these non-sporadic, simultaneous acts of boycotting all over the 
 country. Yet our friends assign that as error. 
 
 The Chief Justice: What was the date of the temporary 
 injunction? 
 
 Mr. Darlington: December 18, 1907. I will pass briefly over, 
 without dwelling upon it, the fifth assignment of error, which is 
 of very much the same character, that the court erred in con- 
 sidering prior declarations of the appellant. To this there are- 
 three answers. In the first place, the judgment finds no prior 
 intent to disobey. The opinion discusses it, but the facts found 
 
 83 
 
and acted upon were all subsequent. In the second place, the 
 punishment inflicted was not for prior intent to disobey, but for 
 acts subsequent to the injunction. In the third place, that the 
 appellants did actually disobey, and intended to do so, was 
 neither denied or disputed by any of them, at any stage of the 
 litigation. 
 
 On that subject let me show to the court, at page 8 of the 
 record : 
 
 “The original bill in this cause having been filed on to wit 
 the 19th day of August, A. D., 1907, and the process of sub- 
 poena having been served upon the said Samuel Gompers as a 
 defendant named in the bill, on, to wit, the 20th day of August, 
 A. D., 1907, thereafter, to wit on the same day, or the day fol- 
 lowing, the said Samuel Gompers not only stated his intention of 
 not complying with any order which might be passed by the 
 court, pursuant to the prayers of the said bill, but publicly stated 
 such intention in an interview with the representatives of three 
 prominent newspapers, and the said interview was extensively 
 published throughout the country, including the city of Wash- 
 ington and the District of Columbia. In the course of said 
 interview so published the said Samuel Gompers said : ‘When 
 it comes to a choice between surrendering my rights as a free 
 American citizen or violating the injunction of a court, I do 
 not hesitate to say that I shall exercise my rights, as between the 
 two.’ This statement of the said Samuel Gompers, at or about 
 the time of the filing of the bill in this cause, was made in ac- 
 cordance with and pursuant to the suggestion and purpose out- 
 lined by him at the Nashville convention before mentioned, ten 
 years earlier.” 
 
 That was an announcement made by him ten years before, 
 referred to in the opinion of this court, that if injunctions were 
 granted they were not to be obeyed. Now, his answer to this 
 allegation of the petition will be found on page 24. This 
 charges two things : first, that he declared he would not obey 
 the injunction if passed and, secondly, that he did so in accord- 
 ance with that proclamation. 
 
 “10. Answering the tenth paragraph of the petition, this 
 defendant says that he admits the correctness of the quotation 
 there made, and does not surrender his rights as a free Ameri- 
 can citizen, and will not assume that the courts will hold any 
 line of conduct illegal which he pursues within his rights as 
 such citizen; that at the time of such interview he did not have 
 in mind in any way the words attributed to him as having been 
 used in the Nashville convention.” 
 
 That is, he did say he would not obey any injunction that 
 might be granted. He does not deny that it was pursuant to 
 the purpose outlined at the Nashville convention, but does deny 
 that he had that in mind at the time he made the declaration. 
 
 84 
 
In this connection I will ask the court, in order to save time, 
 to please read when you come to consider the case the 22d, 23d, 
 24th and 25th paragraphs of the petition, and the reply of Mr. 
 Gompers to them in his answer in this case, in each of which 
 he admits them. In pursuance of a like plan or like purpose 
 to defy the injunction he said: 
 
 “I want to assure you on my word of honor that so long as I 
 live I will never buy a Loewe hat or a Bucks stove or range until 
 these gentlemen come into agreement with organized labor 
 and grant us conditions of fairness. Then they will get support 
 and help. Until then you may call it by any other name — 
 boycott or no boycott — but I won’t buy your hats anyhow.” 
 
 The answer admits that he used that language and it makes 
 no denial of the fact that he used it for the purpose charged. 
 
 Mr. Justice Van Orsdel : Do these defendants answer sep- 
 arately or jointly? 
 
 Mr. Darlington: Separately. Now, let me refer to the 
 argument of the learned gentleman yesterday who asked the 
 court to notice that the final sentence, beginning at the bottom 
 of page 17 of the record was a mere editorial “squib,” which 
 in no manner referred to the injunction, and therefore could 
 not constitute contempt. Let me ask the court to read that 
 squib in connection with the whole quotation. It is not a segre- 
 gated thing. The quotation begins with the preceding paragraph. 
 
 The whole quotation is this: 
 
 “The temporary injunction issued by Justice Gould of the 
 Court of Equity of the District of Columbia, in the (Van 
 Cleave) Bucks Stove & Range Company of St. Louis vs. The 
 American Federation of Labor, its officers and all others, has 
 been made permanent. The case will now be carried to the 
 Court of Appeals of the District of Columbia. 
 
 “It should be borne in mind that there is no law, aye, not 
 even a court decision, compelling union men or their friends 
 of labor to buy a Bucks stove or range. No, not even to buy a 
 Loewe hat.” 
 
 How can it be said that the latter sentence is to be separated 
 from the immediately preceding sentence, and by that process be 
 held to have had no reference to the injunction? 
 
 I think in the economy of time I must pass by the sixth 
 and seventh assignments of error, except to call the attention 
 of the court to a little law in connection with the seventh. 
 
 The seventh assignment of error is that the court erred in 
 finding that defendants violated the injunction by the issuance of 
 the Urgent Appeal of January 24th and the editorial in connec- 
 tion therewith, “the same having been the proper and necessary 
 steps in their own defense and not in furtherance of any boy- 
 cott.” 
 
 85 
 
In so far as the question of fact is concerned that was dis- 
 cussed on yesterday. The injunction was against doing the 
 things specified. It contained no exceptions, allowing them to 
 be done because the parties preferred to ask voluntary contri- 
 butions rather than to assess, as they might do. But upon the 
 question of law involved, this court has held in its opinion that 
 the injunction was too broad in so far as the Urgent Appeal 
 is concerned. At least, I believe that is the decision. Did that 
 justify disobedience to it? Can that be considered upon the ques- 
 tion of contempt? 
 
 On that subject the Supreme Court of New Jersey say in 
 Richards , vs. West, 2 N. J. Eq. 456: 
 
 “While the writ of injunction remains in force it needs must 
 be implicity obeyed. The party is not at liberty to speculate 
 on the intention of the court.” 
 
 The next citation in the brief is a typographical error : 
 Ketcham vs. Edwards should be 153 N. Y. instead of 153 N. J. 
 
 The Chief Justice: On what page of your brief is that? 
 
 Mr. Darlington: Page 23. I only read a few sentences 
 from these decisions to show the trend of them. This bears on 
 the main question in this case, namely, what is jurisdiction? 
 Does an erroneous decision of a constitutional question defeat 
 jurisdiction? If the question is before the court for decision, 
 if the court has the right to decide the question at all, either 
 one way or the other, does a decision the wrong way withdraw 
 jurisdiction? 
 
 “It is, of course, not subject to debate that the order of a 
 court having jurisdiction must be implicity obeyed, however 
 erroneous it may be, and that it is no answer for one called upon 
 to answer for a disobedience, that the order or judgment was 
 broader than the facts warranted, or gave relief beyond what 
 was demanded, or what the court, upon the facts, was justified 
 in awarding. The interest in maintaining respect for the action 
 of the courts, and of orderly jurisprudence, forbids that liti- 
 gants should be permitted, under plea of hardship or injustice, 
 real or pretended, to nullify or set at naught orders or decrees, 
 however improvidently made, even if it may seem certain that 
 the court acted in granting them under misapprehension or 
 mistake.” 
 
 The next case from which I read is Franklin Union No. 4 vs. 
 The People, 220 111. 368 : 
 
 “When a court has before it, as it is conceded the court had 
 in this case, a party complainant asking that an injunction issue, 
 and a party against whom it is asked to issue, upon a bill 
 stating a case falling within its general equitable jurisdiction, the 
 court has jurisdiction to decide whether an injunction should 
 
 86 
 
issue or not, and the character of the injunction which should 
 issue, and should the court err in ordering an injunction to issue 
 when one ought not to issue, or should it order an injunction 
 broader in its term than the averments of the bill would justify, 
 its action, on appeal or writ of error would be set aside ; but 
 upon an attachment for contempt, which is in its nature col- 
 lateral, for violation of the injunction, a party who has violated 
 the injunction will not be heard to say the injunction ought 
 not to have issued, or was broader in its terms than the bill 
 justified, as an excuse for his action, as the error of the court 
 in granting an injunction, or in granting one broader than the 
 averments in the bill will justify, does not deprive it of juris- 
 diction to act, and its order directing the injunction to issue 
 is valid and binding until modified or vacated or set aside upon 
 appeal or writ of error.” 
 
 I will pass over also the eighth assignment of error referring 
 simply to our brief on the subject. 
 
 We come now to one of the principal specifications against 
 the appellant Mitchell. The Court was told on yesterday with 
 respect to the publication which occurred in the Mine Workers’ 
 Journal, of which organization Mitchell is president, that he 
 was ill for months and saw nothing of those resolutions and 
 knew nothing about them. Of course that was stated in good 
 faith and is simply an 'error in recollection of the testimony. 
 The 18th paragraph of the petition alleges that Mitchell pub- 
 lished in the journal of the organization a certain article of Jan- 
 uary 9, 1909. At page 306 of the record Mr. Mitchell says 
 that he usually receives this journal and that he usually reads it, 
 but on page 308 he says that when the issue of January 9 came 
 out he was absent from home, ill, and does not recall seeing 
 the issue of January 9, the one which contained the editorial 
 to which exception was taken. That is the only issue of the 
 journal he claims he did not see or did not read and the only 
 issue of the journal in connection with which he mentions his 
 illness, and the court did not find him guilty of that act. It 
 accepted his explanation of it. It does not find Mitchell at all 
 guilty of the allegation contained in the 18th paragraph of the 
 bill, which is the one dealing with that issue ; and we come to 
 another matter on which it does find him guilty. That is, that, 
 notwithstanding the terms of the injunction, which I need not 
 repeat as it is in the minds of the court, he presided over a 
 convention of these mine workers on the 25th day of January, 
 1908; that he entertained a resolution offered by one Stroud, 
 which recited that the Bucks Stove & Range Company had gone 
 into court to enjoin the Federation from putting its name on 
 the unfair list; that it was thereby striking at one of the prin- 
 cipal weapons of the Federation of Labor, its right to boycott, 
 and thereupon resolved that any member of the United Mine 
 Workers’ organization, 300,000 strong, who should buy any pro- 
 duct of the Bucks Stove & Range Company should be fined five 
 dollars and should be expelled if he did not pay the fine. 
 
 87 
 
The petition alleged that Mitchell entertained that resolu- 
 tion, that he put it to a vote, that he declared it adopted, and 
 participated in its passage to that extent. 
 
 Mr. Justice Van Orsdel : Let me ask a question there. This 
 is, you claim, a criminal proceeding? 
 
 Mr. Darlington : Yes. 
 
 Mr. Justice Van Orsdel : The petition then becomes some- 
 thing like an indictment in an ordinary criminal proceeding. On 
 that theory Mr. Mitchell could sit silent. It was encumbent on 
 you to prove all the allegations made by you. 
 
 Mr. Darlington : Yes. 
 
 Mr. Justice Van Orsdel: And if you failed to prove those 
 allegations, under the ordinary rule of criminal procedure there 
 should be a verdict of not guilty. 
 
 Mr. Darlington : Yes. If there is no ■ evidence, then the 
 reviewing court could say there was no evidence. Of course 
 if there was a finding of fact below, upon legally sufficient evi- 
 dence, this court can not set that aside. Now, your Honor has 
 not heard the evidence on that point. Your Honor has only 
 heard what our friends have said. 
 
 Mr. Justice Van Orsdel: Yes; I gathered from the argu- 
 ment on yesterday that there was no evidence here excepting 
 the affidavit of Mr. Mitchell. 
 
 Mr. Darlington : I was afraid your Honor had got that im- 
 pression. I was going to show you how far from the fact that 
 
 is. Mr. Mitchell’s defence of that is simply, “I do not recollect 
 
 it. ” It is not, “If I did it, I did it inadvertently, did it without 
 knowing it at the time.” He simply says, “Now, I do not recollect 
 it,” and when he is cross-examined — 
 
 Mr. Justice Van Orsdel : Does he deny knowledge of what the 
 resolution contained? 
 
 Mr. Darlington : No, he denies nothing except present rec- 
 ollection of it, and I am going to show that on cross-examination 
 he practically abandons that. I read from my brief, and I give 
 the page reference at every point. In his deposition he testi- 
 fies that he takes it for granted that the minutes are correct in 
 'stating that he was in the chair when the resolution in question 
 was put and declared to be adopted ; that he has no doubt about 
 it (Rec. p. 300) ; that he does not recall anything about the 
 introduction or passage of the resolution; that he sees from the 
 record that he was in the chair, but he has no independent rec- 
 ollection about it (p. 301) ; that no doubt the resolution was 
 read in his presence and, though he does not remember hearing 
 it, he has no doubt that he did so (pp. 302-3). That is his 
 deposition. On the other hand, Mr. Stroud, the man who 
 
 88 
 
offered the resolution testifies that Mr. Mitchell was in the chair, 
 that the resolution was read in a loud voice by the chairman 
 of the committee reporting it, standing ten feet from Mitchell; 
 that Mitchell appeared to give close attention to everything that 
 was going on in the convention, and, furthermore, that this 
 resolution was an important one, regarded as important, that 
 it had been printed and circulated among the members before 
 it was reported, the day before, and a copy put in the hands of 
 every person present. 
 
 Mr. Justice Robb: Was Stroud impeached in any way? 
 
 Mr. Darlington: No, our friends introduced no evidence 
 at all. 
 
 Mr. Justice Robb : What was Stroud’s relation to the res- 
 olution ? 
 
 Mr. Darlington : He introduced it. 
 
 Mr. Justice Robb: Was he an officer? 
 
 Mr. Darlington : He was a delegate to that convention, and 
 he introduced the resolution. Mr. Stroud prepared the reso- 
 lution and had it endorsed by his local organization before the 
 convention met, and that is his testimony, that Mitchell was in 
 the chair, that the chairman of the committee reporting it read 
 the resolution in a loud voice, ten feet away from Mitchell, that 
 Mitchell appeared to be giving good attention to everything that 
 transpired. The man who seconded it testifies lo the same ef- 
 fect, and the stenographer who reported the convention testified 
 from her notes that Mitchell was in the chair, and that he put the 
 question and declared it adopted. 
 
 Now, I must say, even if this court could review the question 
 of fact, there is absolutely no ground to question the correctness 
 of the findings of the court below that Mitchell did these things. 
 Still less can this court be asked to say that the findings of the 
 court was without any evidence, or any legally sufficient evidence, 
 upon this point. Mr. Beck calls my attention to the fact that this 
 resolution was of a kind that would have attracted the attention 
 of everybody in the convention, in view of the campaign which 
 had been made throughout the entire order against the Bucks 
 Stove & Range Company. Now, the defense of Mr. Mitchell is, 
 that he does not recollect it ; not that he did not understand it, 
 not that be did not do it, not that he would not do it again, but 
 simply that he does not now recollect it. And we have here a very 
 curious further defense. The court is told in the opposing brief 
 that the court will take judicial cognizance of the fact that Mit- 
 chell is a man of law-abiding character, a man who would not 
 do anything in violation of law. Now, the very curious thing 
 to which we refer is that the witnesses who testify that Mitchell 
 was a man of good character, and would not do a thing of the 
 kind charged, are the men who did it, the man who introduced 
 
 89 
 
the resolution and the man who seconded it. The men who did 
 the lawless thing they claim Mitchell would not have done are 
 the only men who are called to substantiate that view of his char- 
 acter. But what does Mitchell himself say? In his book, “Or- 
 ganized Labor; Its Problems, Purposes and Ideals,” published 
 in 1903, he says: 
 
 “Moreover, when an injunction, whether temporary or per- 
 manent, forbids the doing of a thing which is lawful, I believe it 
 is the duty of all patriotic and law-abiding citizens to resist, or 
 at least to disregard the injunction. It is better that half the 
 workingmen of the country remain constantly in jail than that 
 trial by jury and other inalienable and essential rights of citizens 
 of the United States be abridged, impaired or nullified by in- 
 junctions of the courts.” The Supreme Court of the United 
 States has on three different occasions held that trial for contempt 
 by the court was not the taking away of any right, but Mitchell 
 says it is, and that to hold otherwise is a violation of an inalien- 
 able and essential right of a citizen of the United States. 
 
 Again, in December, 1906, Mr. Mitchell said, in a public ad- 
 dress : 
 
 “I wish to say for myself — and I yield to no man living in loy- 
 alty to this country — that if a judge were to enjoin me from 
 doing something that I had a legal, a constitutional and a moral 
 right to do, I should violate the injunction. I shall, as one 
 American, preserve my liberty and the liberties of the people, 
 even against the usurpation of the Federal judiciary, and in do- 
 ing this I shall feel that I am best serving the interests of my 
 country.” 
 
 Again, in the economy of time, I will pass over the 10th and 
 12th assignments of error. This leaves only the 11th and 13th, 
 which raise the principal question of law in this case. This is 
 the question, whether an order or decree of a court which holds 
 that a certain act is not a constitutional right, is beyond the 
 jurisdiction of the court if a higher court holds that it is a con- 
 stitutional right; in other words, whether a decision against a 
 constitutional right of a party, where that issue is presented be- 
 fore the court in such shape as to authorize and require that 
 court to pass upon it, is in excess of its jurisdiction if it de- 
 cides the question erroneously, and therefore makes its decree 
 void. Does its jurisdiction depend on how it decides the pacticu- 
 lar question, brought before it for decision, or does its juris- 
 diction depend on its right to pass upon the question, whether 
 it does so correctly or otherwise? 
 
 We have certain concessions of counsel, on both sides, which 
 bring this question down to a very small compass. I read from 
 page 30 of my brief, quoting from the brief of the other side. 
 Counsel for appellants agree that the question in the present case, 
 “arises collaterally, the respondents challenging the validity of 
 the decrees below, when an attempt is made to give them efficacy.” 
 
 90 
 
Counsel for the appellee, on the other hand, agree that decrees 
 by a court without jurisdiction, of either the parties or of the 
 subject matter, are void, and can not be made the basis of punish- 
 ment for contempt. Counsel for the other side, at page 40 of 
 their brief, further agree that they are “brought, then, to the posi- 
 tion that the decrees below in respect to the publication or ut- 
 terances * * * were in excess of the jurisdiction of the 
 
 court,” and that decrees “may be attacked collaterally as void 
 when the court acts without jurisdiction over the person or of 
 the subject matter, or is without jurisdiction to make the par- 
 ticular order.” 
 
 We have, then, a question, not of constitutional right, not of 
 error or the want of error, but the question of jurisdiction; and 
 the only question presented, therefore, is, was the court below 
 without jurisdiction to grant the injunctions which the appel- 
 lants violated? 
 
 It is not denied that the court had jurisdiction of the parties. 
 That can not be denied. It is not denied that the court had 
 jurisdiction of the subject matter, because this court has af- 
 firmed that it had a right to hear and decide the case. Was there 
 any allegation of the bill which the court had no jurisdiction to 
 hear and pass upon? That is jurisdiction. The distinguished 
 counsel for the appellants on yesterday undertook to compare 
 the case, by analogy, with the case of a statute which is partly 
 constitutional and partly not so, where the constitutional and the 
 unconstitutional parts are so blended that you cannot separate 
 them. He says that the whole is void. In that case that is true: 
 but is there the slightest analogy between such an act of Con- 
 gress and the decree of a court in a matter in which it has 
 jurisdiction? We are dealing here with a question which does 
 not enter at all into legislative action. There is, there, no juris- 
 diction, no right to hear and determine causes. In other words, 
 the action of a legislative body must be either valid or void. It 
 is either wholly void or wholly valid. There is no intermediate 
 or simply voidable status. There is no class of erroneous enact- 
 ments, valid until declared void. The very question in this case 
 is wholly non-existent in the case of legislative acts, and, there- 
 fore, all analogy is wholly absent. No authority has been cited 
 in the opposing brief, and we submit no authority exists, for the 
 proposition that, where a court has a case before it, and there 
 is in it a question which it is the duty of the court to pass upon, 
 its jurisdiction depends upon how it passes upon that question. 
 The question always is, Has the court the right to hear and de- 
 cide the question? not how has it decided it. Had the court the 
 right to hear and determine the question which it has decided, not 
 has it determined that question correctly. 
 
 Now, as I have said, the brief on the other side cites no case 
 in which any court has ever held that, where the court below had 
 the right to hear and determine the case, to decide it at all, any 
 
 91 
 
decision that it has made is void for want of jurisdiction. In- 
 deed, that is an evident antagonism of terms. 
 
 The Chief Justice : What do you say to this : Take a case 
 where the jurisdiction depends upon the existence of certain 
 facts. Now, the courts are not precluded by the finding of the 
 court below that those facts existed. What gives the court juris- 
 diction is the fact, as for example in the case of Thompson vs. 
 Whitman, where the court had to determine whether a vessel 
 was seized within certain waters. It determined that fact and 
 condemned the vessel, but the court held that judgment void. It 
 inquired into the fact whether the court had erred in determin- 
 ing where the vessel was. 
 
 Mr. Darlington: Did it hold the decision void, or simply re- 
 verse it? 
 
 The Chief Justice : As I understand it, they held it void, for 
 the second suit was a suit regarding the title of the property 
 which had passed in the condemnation. It was a collateral 
 attack. 
 
 Mr. Darlington : It did not involve the question of the duty of 
 the parties to obey the court’s order at all, until the question was \ 
 determined ? 
 
 The Chief Justice: No. 
 
 Mr. Darlington: That is the question we have here. 
 
 The Chief Justice: I am talking about the proposition that 
 the court ascertained the facts which are necessary to determine 
 the jurisdiction. The court did so, but another court in a col- 
 lateral attack on it inquired into the question of the jurisdic- 
 tion. It is like a divorce case where the court in one state de- 
 cided it had jurisdiction of the person, but courts in collateral 
 attacks in another state inquire into the question of whether it 
 had jurisdiction, and find the judgment void. 
 
 Mr. Darlington : Those are on questions of fact, and they 
 are in cases where the court can determine the questions of 
 fact. Those are cases where the jurisdiction depends on a ques- 
 tion of fact, and the reviewing court has the power to review 
 the facts upon which the question of jurisdiction depends. And 
 in the cases your Honor has in mind the courts have perhaps 
 used the term “void,” but have not decided the question we have 
 here, which is whether a decree of prohibition or inhibition upon 
 a party, a personal judgment or decree, directing a thing to be 
 done or forbidding it to be done, may be violated, and the party 
 escape punishment if a reviewing court holds it to be void in the 
 sense your Honor mentions. They do not touch the question we 
 are now considering, which is whether so long as the decree re- 
 mains unreversed, it is not binding on the party who is ordered 
 to abstain. 
 
 92 
 
The Chief Justice: Take the case of in re Sawyer, where 
 the court exercised jurisdiction over municipal officers who dis- 
 obeyed a writ. It had jurisdiction of their persons, and per- 
 manent jurisdiction as a matter of law, as a court of equity, 
 over these municipal officers. They violated an injunction; they 
 were imprisoned. A writ of habeas corpus was taken out, and 
 the Supreme Court discharged them upon the ground that the 
 judgment was void, because the court had no real jurisdiction 
 over municipal officers on a matter of that kind. 
 
 Mr. Darlington : That is one of the cases on the other side 
 which we point out has no bearing here. 
 
 Mr. Justice Robb: Tl^e court had no jurisdiction of the 
 parties ? 
 
 Mr. Darlington: The Court had jurisdiction of the parties but 
 not of the subject matter. 
 
 Mr. Justice Robb : It was held that the court could not pass 
 upon a case involving municipal officers. 
 
 Mr. Darlington: That it was absolutely without jurisdiction 
 to pass upon the question of removing the incumbent from a 
 municipal office. It had jurisdiction of the parties, but not of 
 the cause. 
 
 The Chief Justice : What is the difference between that and 
 a case like this, where this court held that the court below had 
 no jurisdiction to issue an injunction against the publication, un- 
 less that publication be in fact for a criminal purpose, making 
 that an exception? Now, taking the decision of a majority of 
 the court in this case, that the court had no constitutional power 
 to issue a writ of injunction — 
 
 Mr. Darlington : Power is one thing — 
 
 The Chief Justice: Yes, the Constitution forbids it, and there- 
 fore it has no power. 
 
 Mr. Darlington: Does your Honor construe power and juris- 
 diction to be the same thing? 
 
 The Chief Justice : They are hard to distinguish. I remem- 
 ber distinguished lawyers trying to distinguish between judicial 
 power and jurisdiction. I must say the question is not clear to 
 me. 
 
 Mr. Darlington : Jurisdiction is the right to hear and decide 
 the question. I think we all agree on that. Does this court 
 hold that there is any claim here that the lower court had no 
 right to hear and pass upon the questions, or any of them, pre- 
 sented by the bill in this case? 
 
 The Chief Justice : There are cases in which the court had 
 partial jurisdiction — the jurisdiction to do certain things but not 
 to do others. 
 
 93 
 
Mr. Darlington : That is true, but my inquiry is, was there 
 a single thing in this bill that the court had not the right to 
 hear and determine, one way or the other? If there is such a 
 thing, then the court had no jurisdiction; but if it had the right 
 to hear and determine the question, whether it is a question of 
 constitutional law or statutory law, then it had jurisdiction. 
 
 The Chief Justice: The court has the right to hear and deter- 
 mine the case of a party charged with crime; but if the court 
 exceeds its jurisdiction in inflicting the penalty, that judgment is 
 void, as the Supreme Court held in the habeas corpus case. 
 There was a case in which it had jurisdiction, and simply erred 
 in the construction of the statute. 
 
 Mr. Darlington : It had no jurisdiction to pass a certain sen- 
 tence. That is one of the cases cited on the other side. 
 
 The Chief Justice: Had the court in this case jurisdiction to 
 enjoin the publication? 
 
 Mr. Darlington : If your Honor will pardon me — 
 
 The Chief Justice : This court held that the court below had 
 not, except for certain purposes. 
 
 Mr. Darlington : The question is not whether the court had 
 power to enjoin. If the court had the power to hear and decide 
 that question, the fact that it decided it erroneously raises no 
 question of its jurisdiction. 
 
 The Chief Justice : I do not see how you can make that 
 distinction. It had the power to hear the question generally, 
 but it had no power to order a certain thing to be done. It 
 could order other things to be done in the course of the litigation, 
 but it exceeded its power when it ordered the parties not to pub- 
 lish a certain article. According to my notion, the whole publi- 
 cation ought not to have been enjoined under any circumstances. 
 That is my construction. Therefore, I have no hesitation in say- 
 ing that if the court enjoined the publication of an article, libelous 
 or whatever it might be, that while the party might be punished 
 for that act, that the court had no jurisdiction, by virtue of the 
 constitutional prohibition, or no power, whichever you call it, 
 to enjoin the act, and therefore its judgment would be a nullity, 
 as in the case of in re Sawyer, because it had no power or no 
 jurisdiction to do the thing which it undertook to do. 
 
 Mr. Darlington : Let us assume that the court had been unani- 
 mous on the subject, although they were not. 
 
 Mr. Justice Robb : They were not. 
 
 Mr. Darlington : I know they were not : but, to get a broad 
 illustration of the question of jurisdiction, suppose this court 
 had been unanimous on the proposition that no injunction should 
 have been issued against tjie publication. But the bill had asked 
 
 94 
 
that it be enjoined. Was it not within the jurisdiction of the 
 court to hear and determine that question, whether the publica- 
 ' tion should or should not be enjoined? Does any member of 
 this court doubt that, under this bill, it was the province and the 
 duty of the court below to hear and decide that question in one 
 way or the other? 
 
 The Chief Justice: Yes; but it would be its duty to decide one 
 way, if the Constitution provided but one way, and whenever it 
 exceeded that — 
 
 Mr. Justice Robb: Who is to say? 
 
 The Chief Justice : If the court below does not say it right, 
 the appellate court says it. The Supreme Court of the United 
 States issued a writ of habeas corpus and discharged a man, 
 in a criminal case, where the court had jurisdiction, but inflicted 
 a penalty which it had no authority to inflict, where it misinter- 
 preted the statute and inflicted a severer penalty than the statute 
 permitted. The court said that judgment was void because it 
 was in excess of the jurisdiction of the court. 
 
 Mr. Darlington : We have now gotten through one of the 
 stages of the process that runs through my own mind in the 
 consideration of this question, the stage that the court had the 
 power, and it was its duty, to decide the question. The com- 
 plainant claimed the right to have an injunction issued, the de- 
 fendants denied it, and that question was before the court. It 
 had to decide that question. Then the objection, or the proposi- 
 tion, is that it can decide it only in one way, and that whether 
 it has done so or not goes to its jurisdiction; that the right of the 
 court to hear and determine a case depends on how it deter- 
 mines it. Well, that must be equally true if the question to be 
 decided arises under a statute. The court has no more right to 
 deny a man a statutory right than a constitutional right. 
 
 The Chief Justice: What do you say to those divorce cases, 
 for example? There the court was given jurisdiction by state 
 law and constitution of all proceedings in divorce cases, but the 
 exercise of that power depended on a certain condition to give 
 the court jurisdiction. 
 
 Mr. Darlington: To get jurisdiction of the person. 
 
 The Chief Justice: But in that case he was the person who 
 brought the suit. 
 
 Mr. Darlington: True, but that was only one of the parties. 
 
 The Chief Justice: And the other was brought into the suit 
 in the manner prescribed by law. 
 
 Mr. Justice Robb: But he never was in the state. 
 
 The Chief Justice: It does not make any difference whether 
 he was in the state or not. There was provision for service by 
 
 95 
 
publication, and the courts have held that personal service is not 
 necessary. 
 
 Mr. Darlington: Not merely in divorce cases, but in civil 
 suits. Take Pennoyer vs. Neff; the statute of Oregon provided 
 that, in an attachment suit, you could reach the property of a 
 defendant by publication, and if its proceeds were insufficient 
 to pay the debt, a personal judgment could be recovered for the 
 deficiency. The Supreme Court of the United States held that 
 the statute had no extra territorial application. That is, the 
 courts of Oregon could not, by means of its provisions, get 
 jurisdiction of the person of a defendant who lived in California. 
 
 The Chief Justice: Undoubtedly, but that it could as to the 
 attached property. It was also said in regard to proceedings 
 in rent , in a suit to quiet title, that that is a proceeding in perso- 
 nam , and therefore a nonresident defendant could not be bound 
 by a judgment obtained by publication. 
 
 Mr. Darlington: Now with respect to the divorce matter, a 
 complainant brought suit in Connecticut, against a wife who lived 
 in New York and had never lived in Connecticut, a suit for di- 
 vorce, and he obtained publication against her under the Con- 
 necticut statute, and a divorce which was perfectly good in Con- 
 necticut, like the attachment which was good in Oregon ; but the 
 Supreme Court of the United States said that the Connecticut 
 legislature could not give its court jurisdiction of a New York 
 resident by anything it could do; that the court never obtained 
 jurisdiction of the person of the wife, and that therefore, outside 
 of Connecticut, the Connecticut statute had no validity, and 
 that the decree elsewhere was void. I see no conflict. It is 
 simply an application of the universal rule that state statutes 
 have no extra territorial effect, and that they can not affect the 
 rights of persons who are not residents of the particular state. 
 
 The Chief Justice : But, in the case I mention, the act of the 
 legislature did have an extra territorial effect, and it was so 
 held. It has been held constantly that decrees of divorce have 
 extra territorial effect provided the court has jurisdiction of the 
 subject matter and of the party. 
 
 Mr. Darlington: Of both parties? 
 
 The Chief Justice: No, of the complainant, because the de- 
 fendant is brought in by publication. 
 
 Mr. Darlington : Pardon me for asking, but does your Honor 
 recall any instance in which the court held that there was such 
 extra-territorial effect ? 
 
 The Chief Justice: There is a case in 181 U. S., 155. 
 
 Mr. Darlington : What was the extra territorial effect? 
 
 The Chief Justice: The party was married in New York. 
 They lived in Kentucky. They" established their residence in 
 
 96 
 
Kentucky. She abandoned him there, and he brought suit for 
 divorce under the Kentucky law, and served her by publication. 
 She in New York brought suit against him for divorce, and 
 he pleaded the Kentucky decree in bar. The New York Court 
 of Appeals held that the Kentucky court did not have jurisdic- 
 tion; the Supreme Court of the United States held that it did. 
 
 Mr. Darlington : There the parties had both lived in Ken- 
 tucky. That state had been, alone, the matrimonial domicile — 
 the only domicile of the status sought to be dissolved. 
 
 Mr. Beck : That case was distinguished by the later case of 
 Haddock vs. Haddock. 
 
 The Chief Justice : And Haddock vs. Haddock decided that 
 it was not such a judgment as was bound to be respected under 
 the statutory provision requiring courts to give effect to the 
 judgments of other courts, and they held that it was optional 
 with the states, practically. That was all that the case decided. 
 
 Mr. Darlington: Now, I come back to the proposition I 
 started with, that not one of the cases cited on the other side is 
 authority for the doctrine that, where a case is presented by a 
 record before a court, in such a way that that court is called upon 
 to decide the question, its erroneous decision ever affects its 
 jurisdiction. Of all the cases cited, the only one which touches 
 that question at all is in re Parks, 93 U. S., 18, and that case, 
 I submit, is conclusive against the proposition. In it a man was 
 indicted under a Federal statute and was convicted and im- 
 prisoned. He brought habeas corpus, claiming that the offense 
 with which he was charged did not come under that statute. The 
 Supreme Court said : 
 
 “But the question whether it was or was not a crime within 
 the statute was one which the district court was competent to 
 decide. It was before the court, and within its jurisdiction. No 
 other court, except the circuit court for the said district, having 
 concurrent jurisdiction, was as competent to decide the question 
 as the district court. Whether an act charged in an indictment 
 is or is not a crime by the law which the court administers (in 
 this case the statute law of the United States) is a question that 
 has to be met at almost every stage of criminal proceedings. 
 
 * * * The court may err, but it has jurisdiction of the 
 
 question.” 
 
 No matter how the court decided it, it was a question which 
 the court was competent to decide. It was before the court and 
 within its jurisdiction. That is all that is necessary to constitute 
 jurisdiction — that the question shall be before the court and that 
 it is within its jurisdiction to decide it. 
 
 I think we have now agreed, if I understand the court, that 
 this question whether or not this publication should be enjoined, 
 was before the court, and was a question upon which the court 
 
 97 
 
had jurisdiction to pass. If it had decided it in favor of the 
 appellants, no one could have questioned the jurisdiction or the 
 validity of the decree. It is only because it decided against them 
 that it is contended the jurisdiction did not exist. Now, I do 
 not understand that the majority opinion of this court holds that 
 the Constitution was involved in the decision rendered; but, if 
 it was, we should have, at most, simply a case where a court of 
 competent jurisdiction has made an erroneous decision against 
 a constitutional right. In the case of in re Parks no other court 
 except the Circuit Court for the District having concurrent juris- 
 diction, said the Supreme Court, was as competent to decide the 
 question as the District Court. In the case at bar there was not 
 even a court of concurrent jurisdiction. The Supreme Court 
 of the District of Columbia was the only court which was 
 competent to pass upon the questions presented by the bill. 
 The Supreme Court said : “Whether an act charged in an indict- 
 ment is or is not a crime by the law which the court administers, 
 is a question which has to be met at almost every stage of 
 criminal proceedings. * * * The court may err, but it has 
 competent jurisdiction of the question.” 
 
 That is the only case in the long list cited by counsel which 
 bears at all upon this question of an erroneous judgment of a 
 question which the court has the right to hear and determine. 
 
 Now, let us take the others very briefly. In re Mills, 135 U. 
 S., 63, was the case of a sentence to the penitentiary for a period 
 less than one year, under a statute authorizing penitentiary sen- 
 tences only where the term was for one year or longer. If the 
 gravity of the offense was such as to require less than a year, 
 the court had no jurisdiction to pass such a sentence. The court 
 had no right to hear the question whether or not a penitentiary 
 sentence should be imposed, if the offense was one for which less 
 than a year’s imprisonment was to be imposed. 
 
 Ex parte Fisk, 113 U. S., 713, was a commitment for con- 
 tempt by a Federal court for the refusal of a witness to obey a 
 state statute in a matter of practice, which statute was applicable 
 to state courts only. The Supreme Court of the United States 
 held that it was without jurisdiction to decide whether, under that 
 statute, which had no application to the Federal courts, a man 
 was guilty of an offence. 
 
 In ex parte Robinson, 19 Wall, 505, the penalty for contempt 
 was limited by statute to either a fine or imprisonment. The 
 court undertook to hear and determine the question whether a 
 man could be disbarred for contempt, a thing wholly outside of 
 its jurisdiction. It was given no authority to decide that ques- 
 tion. The utmost question of authority was whether he should 
 have been fined, or imprisoned. 
 
 In re Ayres, 123 U. S. 443, there was an injunction, followed 
 by contempt proceedings against the attorney general of a state. 
 The Supreme Court of the United States held that, although 
 
 98 
 
the suit was nominally against the attorney general, it was really 
 against the state, and, that, therefore, the court below was with- 
 out jurisdiction to hear and determine the cause at all. 
 
 In ex parte Lang, 18 Wall, 163, the statute authorized fine or 
 imprisonment, but the court imposed both fine and imprisonment. 
 The Supreme Court held that this did not make it void. The 
 invalid thing there was that, after the accused had paid the fine, 
 and after the term of court had ended, the court lost jurisdiction 
 of the matter. Afterward, it undertook to recall the man before 
 it, to vacate its prior decision and impose a sentence of imprison- 
 ment. The Supreme Court said the court below had no jurisdic- 
 tion to do that, just as this court held, in the case of Carrick vs. 
 Wetmore, that, after the close of the term, the court had lost 
 jurisdiction. 
 
 In ex parte Siebold, 100 U. S., 371, the jurisdiction of the court 
 depended on the constitutionality of the statute under which the 
 court acted. The Supreme Court simply held that the question 
 of the authority of the court to try and imprison the party, that 
 is, to determine the constitutionality of the law under which it 
 acted, might be reviewed on habeas corpus, and it further held 
 that an error in the judgment or proceedings under and by virtue 
 of which the party was imprisoned, constituted no ground for 
 the issuance of the writ. 
 
 Referring further to in re Parks, the Supreme Court held that 
 the court below had jurisdiction of the case, and it refused to 
 interfere because the court had jurisdiction of the cause. 
 
 The Chief Justice : What do you say about this case, where 
 the Supreme Court released parties who were convicted under 
 information when they held that they should have been indicted? 
 The court there had jurisdiction of the criminal offense. 
 
 Mr. Darlington : Did they have jurisdiction at all, under — 
 
 The Chief Justice: They had jurisdiction of the criminal of- 
 fense, and the court was called upon to determine the question 
 of law, whether the prosecution could proceed under an indict- 
 ment or an information, and it held that it could proceed under 
 an information, and sentenced the party, and the Supreme Court 
 of the United States released the defendant on a writ of habeas 
 corpus, on the ground that the judgment was null and void be- 
 cause the Constitution required in that class of cases that there 
 should be a prosecution by indictment. 
 
 Mr. Darlington : That case appears to me to be very clearly 
 one of jurisdiction, purely. The fact that a court has jurisdiction 
 of criminal cases does not give jurisdiction of crimes, which are 
 not brought before it in some authorized manner. 
 
 _ The Chief Justice : But the court has to determine that ques- 
 tion. The court had to determine whether this was .an infamous 
 crime. If it was, then it could not be prosecuted except upon 
 
 09 
 
indictment. If it was not an infamous crime, then the proceed- 
 ing could be upon information. The court decided that the 
 crimes were not infamous, and permitted the prosecution, and 
 sentenced the defendants upon an information -and they were re- 
 leased, because the Supreme Court of the United States held 
 that the court below erred in determining that this was not an 
 infamous crime. 
 
 Mr. Darlington : It seems to me that the process by which 
 a man is brought before the court is jurisdictional, a question al- 
 ways to be inquired into; that it would be just as competent to 
 try a man for murder without either indictment or information 
 as to try him on information. It seems to me that would be the 
 clearest kind of a jurisdictional question. The court does not get 
 jurisdiction of the person of the defendant. 
 
 Mr. Justice Robb: He was never before the court. 
 
 Mr. Darlington: Not at all. The court did not get jurisdic- 
 tion of his person in that class of cases. That is the distinction 
 that occurs to me. 
 
 The Chief Justice: He found that he was before the court. 
 He found himself in prison ; but of course you mean in the legal 
 contemplation. But, as a matter of fact, I am just following 
 out your doctrine, it seems to me, to see what it will lead to, 
 that, wherever a court has to determine any question with rela- 
 tion to its jurisdiction or power, that then it has jurisdiction to 
 that extent that its judgment would not be void. 
 
 Mr. Darlington : No, I am not contending that the court’s de- 
 cision as its own jurisdiction is conclusive. That has been very 
 many times determined the other way; but, where there is a case 
 which the court must decide, in one way or in another, 
 the fact that it decides it erroneously, does not affect, and can 
 not enter into, the question of its jurisdiction. 
 
 In ex parte Rowland, the court had ordered certain assessing 
 officers to collect a tax which they had no authority under the 
 law to collect. Therefore, the court had no jurisdiction. 
 
 In In re Sawyer (124 U. S., 200), the court undertook to 
 enjoin a mayor and council from removing a police judge. The 
 Supreme Court held that to be in violation of the well-settled 
 principle that a court of equity has no jurisdiction over the 
 appointment and removal of public* officers. That was a question 
 of jurisdiction. 
 
 Elliott vs. Piersol, 1 Peters, 328, the remaining case cited in 
 the opposing brief, was a case in which a county court undertook 
 to exercise a jurisdiction not conferred by statute, thus, also pre- 
 senting a question, not of error, but of jurisdiction. 
 
 No one of these cases is authority for the proposition that a 
 court, having jurisdiction to hear and determine a cause, in one 
 way or in another, loses that jurisdiction if it decides the case 
 in a manner which the appellate court decides to be erroneous. 
 
 100 
 
And now, after a very brief reference to a long line of cases, 
 which I shall cite very briefly, I will conclude an argument which 
 is much longer than I had intended it to be. 
 
 The first is the leading case, leading both in the citations on 
 which it rests, in its reasoning, and in the fact that it will be 
 found cited in nearly every case in which this question is dis- 
 cussed, the case of The People vs. Sturtevant, 9 N. Y., 266-7 : 
 
 “To enable us to say whether the Superior Court had juris- 
 diction, and whether, consequently, its injunction * * * 
 
 was void or not, it will be convenient to recur to some almost 
 elementary notions upon the subject. In the State of Rhode 
 Island vs. The State of Massachusetts, 12 Peters, 718, Mr. Jus- 
 tice Baldwin, delivering the opinion of a majority of the Su- 
 preme Court of the United States, says : ‘ Jui-isdietion is the 
 power to hear and determine the subject matter in controversy 
 between the parties to the suit; to adjudicate, or exercise any 
 judicial power over them; the question is, whether on the case 
 before the court, that action is judicial or extra judicial; with 
 or without the authority of law to render a judgment or decree 
 upon the rights of the litigant parties. If the law confers the 
 power to render a judgment or decree, then the court has jurisdic- 
 tion; what shall be adjudged or decreed between the parties, and 
 with which is the right of the case, is judicial action, by hear- 
 ing and determining it.’ (See also, Grignons Lessee vs. Astor, 
 2 How. 338.)” 
 
 That is the principle I have been contending for. Jurisdiction 
 is the power to hear and determine the subject matter in con- 
 troversy between the parties to the suit, and this is what the 
 Supreme Court says, as quoted and followed in this case. The 
 opinion continues : 
 
 “This, I apprehend, points to the true line of inquiry to deter- 
 mine the question of jurisdiction. We are not called upon to say 
 whether the courts decided right or not, in granting the injunc- 
 tion, but whether it became their duty to decide either that it 
 should be granted or denied. If such was their duty, then they 
 had jurisdiction, and their decision, be it correct or erroneous, 
 is the law of the case until it shall be reversed on appeal ; and 
 can only be questioned upon a direct proceeding to review it, and 
 not collaterally.” 
 
 Now, can there be any question, in the case at bar, that it 
 was the duty of the court below to decide whether or not the 
 injunction asked should be granted or denied? 
 
 Again, on pages 269 and 270, the court continues : 
 
 “Jurisdiction does not relate to the right of the parties, as be- 
 tween each other, but to the power of the court. The question 
 of its existence is an abstract inquiry, not involving the existence 
 of an equity to be enforced, nor the right of the plaintiff to 
 
 101 
 
avail himself of it if it exists. It precedes this question, and 
 a decision upholding the jurisdiction of the court is entirely con- 
 sistent with the denial of any equity either in the plaintiff or in 
 any one else. The case we are considering illustrates the dis- 
 tinction I am endeavoring to point out, as well as any supposed 
 case can. It presents these questions : Have the plaintiffs shown 
 the right to the relief which they seek : and has the court author- 
 ity to determine whether they have shown such right? A wrong 
 determination of the first question is error, but can be re-ex- 
 amined only on appeal. The other question is the question of 
 jurisdiction. It is that alone with which we now have anything 
 to do. Whether the plaintiffs are the proper persons to main- 
 tain the suit, or whether the attorney general should have brought 
 it, or whether the facts show a right in either to have a decree 
 in their favor, are questions which we are not in this proceeding 
 called upon to consider. They relate to the equity of the claim, 
 and not to the power of the court.” 
 
 The case of Pokagama Sugar Pine Lumber Company vs. 
 Klamath Lumber Company, in 86 Fed. Rep. 538-9, presents the 
 same question, whether a restraining order was void or voidable ; 
 whether or not it was contempt to disobey it after the restrain- 
 ing order was issued : 
 
 “When this restraining order- was issued, there had been pre- 
 sented to the judge of this court a verified bill of complaint, in 
 which the complainant demanded equitable relief, and set forth 
 facts upon which this relief was claimed, and upon these facts 
 the restraining order was made. When the bill of complaint 
 was presented to the judge of this court, it became his duty to 
 consider and decide, upon the facts, whether or not to grant the 
 order asked for by the complainants. He had the power to de- 
 cide this question, and, having determined that the facts were 
 sufficient to warrant him in issuing the order, the order so is- 
 sued was valid and binding, and should have been received and 
 obeyed,” citing a number of authorities, Federal and State. The 
 objection that the order was mandatory in its effect has been 
 considered and disposed of on the motion to modify the order. 
 But for the present purpose it is sufficient to say that, although 
 it may ultimately be determined that this order for that reason 
 was erroneous, it was nevertheless within the power of the court 
 to grant, and it should have been obeyed. If there was any doubt 
 as to its scope and character, the question should have been sub- 
 mitted to the court for its determination.” 
 
 So in the case before this court, the bill presented a case for 
 the court to pass upon, and that this necessarily the power to 
 pass upon it either way. Whether it passed upon it erroneously 
 or otherwise was a matter which might be determined, only, upon 
 appeal. 
 
 In the case of Forest vs. Price, 52 N. J. Eq. Rep., 23, Forest 
 had recovered a judgment against Price, and, the judgment 
 
 102 
 
being unsatisfied, had filed a bill to restrain the de- 
 fendant from collecting certain money which was about 
 to be paid to him by the Treasurer of the United 
 States pursuant to an act of Congress. A restraining order was 
 issued, subsequent to which Price received certain treasury 
 drafts, upon which he collected the money. He was cited for 
 contempt in violating the restraining order, and interposed sev- 
 eral objections, one of which was that, this being public money, 
 it was unconstitutional to attach it, because it tended to paralyze 
 the operations of the government. The court said : 
 
 “It is no excuse in a contempt proceeding that the orders con- 
 demned are erroneous in law. The method of correcting such 
 error is by appeal, not by disobedience. When a person is pro- 
 ceeded against for disobedience to an order or judgment, he 
 can not allege as a defense that the court erred in that order or 
 judgment.” 
 
 The Chief Justice: I do not think that anybody denies that if 
 it is a mere error, that if the court had merely erred in the exer- 
 cise of jurisdiction which it has — nobody denies that this order 
 must be obeyed until it is reversed, and that it can not be col- 
 laterally impeached. 
 
 Mr. Darlington : And it can not be alleged as a defense that 
 the court erred in that order and judgment. In order to be 
 successful, they must go further and make out that thefe was, 
 in effect, no order, by showing that the court had no right to 
 judge between the parties on that subject. Can that be said of 
 this injunction, or any phase of it? Was not the court properly 
 called on to decide between the parties? 
 
 The Chief Justice: Your contention practically is that, if the 
 court had jurisdiction of the case for certain purposes, or to a 
 certain extent, then it may exceed its power and the judgment can 
 not be impeached collaterally. 
 
 Mr. Darlington: No, sir; I am not contending for that. I say 
 there is no question presented in or by this bill which the court 
 was not properly called upon to pass upon, and to decide. If the 
 court below had decided that these appellants were not subject to 
 injunction, there is nothing in this case which would have led 
 your Honors to hold that there was no jurisdiction. It was only 
 because the case was decided the other way by the court below 
 that it is suggested there was error. 
 
 The Chief Justice: We have held that it had jurisdiction, but 
 the question is that it exceeded its jurisdiction in that part of 
 its decree. 
 
 / 
 
 Dr. Darlington: Was there any phase of the bill, any claim 
 in the bill, which this court has held, or will hold, that the court 
 below had no right to judge as between the parties and to de- 
 cide? If there is anything in the bill which, if decided in favor 
 
 103 
 
of the appellants, it could have been claimed was beyond its 
 jurisdiction — suppose it had denied everything that this court has 
 held ought to have been disallowed? Could it have been con- 
 sidered to have had no jurisdiction? If it had jurisdiction to deny 
 them, it had jurisdiction to allow them, and this under all the 
 authorities. 
 
 The Chief Justice: The court takes jurisdiction of a case and 
 issues certain orders. Certain of those orders may be perfectly 
 legal and perfectly correct. But the court may exceed its power 
 and order a person to do something that no court has the author- 
 ity to do. Can you not make any distinction between those or- 
 ders and say that the order stands as to the one and does not 
 stand as to the other, which the court had no power to do? 
 
 Mr. Darlington : There is the very greatest distinction in my 
 mind, in such a case. If this bill had sought any relief as to the 
 complainant’s right to which the court had no jurisdiction to 
 decide, the court must have denied it, not on the ground that the 
 complainant was not entitled, but on the ground that it had no 
 jurisdiction to entertain the bill, or to decide upon the question 
 presented by it. 
 
 Mr. Justice Van Orsdel : In restraining the distribution or 
 the sending through the mails of the American Federationist? 
 
 Mr. Darlington : Yes. Now, had the court the right to decide 
 whether the Constitution prohibited that or not ? This court 
 has held that it did have the right to enjoin the putting into 
 the papers that went through the mails the name of this cqm- 
 plainant in this unfair list, for the purpose of a boycott. The 
 Constitution did not prohibit the enjoining of these appellants 
 from doing that. There was no violation of a constitutional 
 right in that. Had not the court the right to pass upon the ques- 
 tion whether sending the Federationist containing that statement 
 through the mails was or was not an unlawful violation of the 
 rights of the complainant and subject to injunction? Had not the 
 court the right to pass upon that question, to decide it one way 
 or the other? Because, if it had the right to decide it in one 
 way, it had the right to decide it in the other. That is jurisdic- 
 tion, the right to hear and determine — not the right to hear and 
 determine correctly, only. 
 
 The Chief Justice : Congress has the power to legislate gen- 
 erally. It has jurisdiction or power to legislate — 
 
 Mr. Darlington: Not jurisdiction. 
 
 The Chief Justice: Not in the sense of a court, but it has 
 political jurisdiction. 
 
 Mr. Darlington : Jurisdiction belongs entirely to the courts. 
 
 The Chief Justice : Congress is called upon to construe the Con- 
 stitution. It enacts law. When it does that it is acting within 
 
 104 
 
its power. Yet the man who disobeys a law of Congress is not 
 subject to any penalty if the courts find that Congress exceeded 
 its constitutional power, in other words erred in its construction 
 of the Constitution in that particular case. 
 
 Mr. Darlington : I agree that if the power of Congress to 
 pass laws has any analogy to the jurisdiction of a court to hear 
 and determine cases, then it would be very difficult to sustain 
 any actions of a court which may ultimately be found to be er- 
 roneous. 
 
 The Chief Justice : If you make a distinction between juris- 
 diction and power, it might be so. But there are other powers 
 in this government. The legislature has the power to do cer- 
 tain things. It has to consider and determine its power. It 
 has to construe the Constitution every time it legislates. Now, 
 the court is vested with power to examine the Constitution, the 
 power to say whether a certain act of Congress is the law which 
 is in conformity to the Constitution, and if it finds that the legis- 
 lature has made a mistake in its construction, it declares its law 
 null and void in any case that arises under it. 
 
 Mr. Darlington : Let me illustrate what I mean. Your Honors 
 agree — we must all agree — that the court may make an erroneous 
 decision, one which it erred in making, but which will be bind- 
 ing, nevertheless, until it is reversed by a court of review. It 
 may mistake the rights of the parties, certainly under the com- 
 mon law, certainly under the statute law, and as certainly, I sub- 
 mit, under the constitutional law. Suppose your Honor’s view 
 of that is correct, and I am wrong. The court may make a de- 
 cree which is erroneous, and so erroneous that it will be deter- 
 mined to be invalid. We all agree that, until it has been reversed 
 by the upper court, it is binding, but that is not true of the 
 legislature. The legislature can pass no law which is binding un- 
 til some higher authority reverses it, and therefore, there is no 
 analogy whatever. It is like the answer that theologians make 
 when it is said that as the grass of the field perishes, so perishes 
 the human race; it is answered that there is no analogy, because 
 the grass has no soul, so that the attempted analogy is with a 
 body which lacks the very element the immortality of which is 
 in dispute. 
 
 The Chief Justice: People say, “This legislation is foolish and 
 ill-advised.” But that is not a question for the court. That is 
 a matter which Congress must determine. 
 
 Mr. Darlington: That does not affect its validity. 
 
 The Chief Justice: But the courts may act erroneously and 
 its errors stand like those of Congress, against any collateral im- 
 peachment. 
 
 Mr. Darlington : Does an act of Congress ever stand against 
 collateral impeachment? That is, can there be any analogy be- 
 tween the error of an act of Congress which affects its validity, 
 and the errors of a court? 
 
 105 
 
The Chief Justice: The only thing that a Court can inquire 
 about an act of Congress is as to the power of Congress. The 
 act may be ruinous to the country, and yet the court must let it 
 stand if Congress has the power to enact it. 
 
 Mr. Darlington : If the error of Congress, in the case supposed, 
 goes to the validity of the act, then it never had any existence 
 at any time. It does not last until some court can pass upon it ; 
 it is invalid from the beginning. If the error affects its validity, 
 it is void from the beginning. In a judicial proceeding that is 
 not true. There may be error in the decision of the court, and 
 such error that, whenever it reaches the court of review, it is 
 held invalid and set aside, but until that occurs it is binding. 
 
 The Chief Justice : Of course. 
 
 Mr. Darlington: Now, we are discussing the question whether 
 this injunction falls in that class. It has no analogy to an act 
 of Congress, or to any legislation, because legislation, if erro- 
 neously passed, possesses no such instant and binding force until 
 reversed. There is no analogy, to apply. 
 
 In this case of Forest vs. Price, the court continues : 
 
 “To be successful, he must go further and make out that there 
 was, in legal effect, no order, by showing that the court had no 
 right to judge between the parties upon the subject.” 
 
 That there was, in effect, no order to violate. 
 
 “Recognizing this well-established principle, the defendant 
 denies the jurisdiction of the court to make the order here in 
 question, upon three grounds : 1st, because the fund is a gov- 
 ernmental bounty to him, designed for his personal maintenance 
 and comfort, and therefore is not liable to application to the satis- 
 faction of the judgment of the complainant, however meritorious 
 it may be ; 2d, because the restraints of the endorsement of the 
 government drafts tended to interfere with and delay the fiscal 
 operations of the government.” 
 
 Suppose the trial court had passed an order that the treasurer 
 of the United States should not issue any warrants to pay the 
 police force of the army. Could that have been a stronger case 
 than there was in this case? 
 
 The Chief Justice : Do you not think such an order would be 
 absolutely void, if the court undertook to enjoin an officer of 
 the United States concerning matters that the United States and 
 not the officer was concerned in ; that because no one can sue the 
 United States, the court could not issue an order against it that 
 would bind it, and that would not be absolutely void? 
 
 Mr. Darlington: The analogy would not be absolutely per- 
 fect, because the court would have no jurisdiction over the of- 
 ficer, but otherwise I think it is correct. The court in this case 
 proceeds : 
 
 106 
 
“3d, because the assignment of the moneys to a receiver, as 
 contemplated by the orders of October 10, 1892, and December 
 21, 1893, would contravene the letter and policy of the law 
 enacted in the 3,477th section of the Revised Statutes of the 
 United States, as being a nullity. In Munday vs. Vail, Chief 
 Justice Beasley defines jurisdiction to be a right to adjudicate the 
 subject matter in a given case, to constitute which it is essential 
 that the court must have cognizance of the class of cases to 
 which the one adjudged belongs; that the proper parties shall be 
 before the court, and that the point decided must, in substance 
 and in effect, be within the issue made by the pleadings. Test- 
 ing the present case by this definition, we first ascertain that 
 its subject matter is the application of the defendant’s established 
 and ascertained property in possession of the United States to 
 the satisfaction of the complainant’s judgment. That this court 
 has cognizance of this class of cases is not disputed. The de- 
 fendant is regularly before the court, and the points to be de- 
 cided are clearly within the issues presented by the pleadings. 
 To urge that the particular money in question is exempt from 
 the application desired, is to present a defense upon the merits 
 of the case, and to object that the temporary restraint of the en- 
 dorsement of drafts will injure and delay the fiscal operations of 
 the United States, is to offer a reason why the court should not 
 continue its temporary restraint, and so the insistment that, under 
 the section of the United States Revised Statutes which has 
 been referred to, the assignment to a receiver would be a nullity, 
 may be a reason why the court should not order it to be made. 
 None of these matters, however, go to the court’s jurisdiction — 
 they are defenses belonging in the cause which the court has 
 power to adjudicate upon. If the courts err in that adjudication, 
 the remedy is by appeal.” 
 
 If the courts err in denying a right to a man which is conferred 
 by a statute of the United States, the remedy is by appeal, and 
 it does not justify the violation of an injunction. 
 
 In in re Sawyer, the court says : 
 
 “As this court has often said, ‘where a court has jurisdiction, 
 it has a right to try every question which occurs in the cause, 
 and, whether its decision be correct or otherwise, its judgment, 
 until reversed, is binding in every other court.’ ” 
 
 So that the question in our case is, was there any question pre- 
 sented by the bill which the court was without jurisdiction to 
 decide ? 
 
 (At 12 :30 o’clock, p. m., the Court took a recess until 1 o’clock, 
 p. m.) 
 
 AFTER RECESS. 
 
 Mr. Darlington : There are two authorities which I desire to 
 add to those cited by me this morning on the subject of a common 
 law record. The first is Bullock Company vs. Westinghouse 
 Company, 129 Fed. Rep. 
 
 107 
 
The Chief Justice: You want to add that to your brief? 
 
 Mr. Darlington: Yes, on the motion to dismiss. 
 
 Mr. Justice Van Orsdel : That comes at the end of your brief? 
 
 Mr. Darlington: At the beginning, the first part of it. Bul- 
 lock Company vs. Westinghouse Company, 129 Fed. Rep., 
 106-7. Your Honors will find it on the brief filed by Mr. Daven- 
 port. 
 
 The other case is Board of Councilmen vs. Deposit Bank, 127 
 Fed. Rep., 812. Both are Circuit Court of Appeals cases, and 
 both hold that these matters must be brought up on a common 
 law record. 
 
 Now, I want to call the attention of the court to a case which 
 it seems to me it would be impossible to distinguish from this 
 one. That is the case of People vs. Bouchard, 27 N. Y. Sup., 201. 
 
 “I think the plaintiff, upon this motion to punish the defendant 
 for contempt and for violating an injunction, has failed to estab- 
 lish that the defendant has sold oleomargarine or butterine ‘as 
 butter the product of the dairy/ It is not, however, denied by 
 the defendants but that he has since the service of the injunction 
 upon him, sold oleomargarine or butterine; and it is charged 
 by the plaintiff, and not denied by the defendant, that such oleo- 
 margarine or butterine is an ‘imitation or a semblance of but- 
 ter, the product of the dairy and he has therefore violated that 
 portion of the injunction prohibiting him from ‘selling oleomar- 
 garine or butterine which is an imitation or semblance of butter 
 the product of the dairy/ The defendant is therefore guilty of 
 contempt, for ‘unless the order was void upon its face for lack 
 of jurisdiction on the part of the judge (court) who granted it, 
 it was the duty of the defendant to obey it/ * * * I do not 
 
 think it profitable to review the question raised by the defendant 
 as to the constitutionality of that portion of section 26 of 
 chapter 338 of the Laws of 1893, which prohibits the manufac- 
 ture or sale of ‘any article or substance of human food in imi- 
 tation or semblance of natural butter/ ” 
 
 Here was a case where the question depended on the consti- 
 tutionality of the law. 
 
 “If that portion of the act is unconstitutional, and the in- 
 junction order heretofore granted was in that particular er- 
 roneous, the remedy of the defendant was to move to vacate 
 or modify the same, or appeal from the order granting it, and 
 not to undertake to test the question by disobeying the order of 
 the court.” 
 
 As I say, if this case is in any respect distinguishable from 
 the one here, I have failed to discover it. 
 
 “Assuming the act in question to be unconstitutional, I do not 
 think that would render the injunction void on its face. The 
 court had jurisdiction of the person of the defendant and the 
 subject matter of the action. It had jurisdiction to determine 
 whether the act under which the plaintiff proceeds is a valid act. 
 ‘Jurisdiction is the power to hear and determine the subject mat- 
 
 108 
 
ter in controversy between the parties to a suit; to adjudicate 
 or exercise any judicial power over them. The question is 
 whether, in a case before a court, their action is judicial or 
 extra judicial, with or without authority of law to render a 
 judgment or decree upon the rights of the litigant parties. If 
 the law confers the power to render a judgment or decree, then 
 the court has jurisdiction. What shall be adjudged or decreed 
 between the parties, and with which is the right of the case, is 
 judicial action by hearing and determining it,’ Fisher vs. 
 Hepburn, 48 N. Y., 41. The only question is, had the court 
 power to pass upon the question? If it had, the order is not 
 void upon its face, although the court may have come to a 
 wrong determination. People vs. Sturtevant, 9 N. Y., 263. 
 Whether the law is constitutional or not is a judicial question 
 to be determined by the court, and it could prohibit action by 
 the defendant until it could investigate and finally determine. 
 People vs. Dwyer, 90 N. Y., 402.” 
 
 The Chief Justice: What court is this? 
 
 Mr. Darlington: 27 N. Y. Sup., p. 201-2. Now a much older 
 case, that of Davis vs. Packard, 10 Wendell, 71 : 
 
 “The power to decide correctly, and to enforce a decision 
 where correctly made, necessarily implies the same power to de- 
 cide incorrectly and to enforce a decision when incorrectly made.” 
 
 In other words, there are but three classes of laws, namely : 
 constitutions, statutes, and the common law. Whether the 
 right upon which the court is asked to pass is constitutional, 
 statutory or common law, the rule is the same. If the court has 
 the power to hear and determine the cause, then its act is 
 binding until its action is reversed or reviewed. Its jurisdiction 
 can not depend on the manner in which it decides the ques- 
 tion. The jurisdiction is the right to decide it at all. . 
 
 In Chase vs. Christiansen, 41 Cal. 253, the court said: 
 
 “It is not the particular decision which determines jurisdic- 
 tion, but it is the authority to decide the question at all. Other- 
 wise the distinction between erroneous exercise of jurisdiction on 
 the one hand, and the total want of it on the other, must be 
 obliterated.” 
 
 We have here a new definition of jurisdiction, or rather, a 
 new way of stating it: “Jurisdiction is the right to put the 
 wheels of justice in motion, and to proceed to a final deter- 
 mination of the case upon the pleadings and evidence;” 
 
 If the court below had that right, then it had jurisdiction. 
 
 “It exists in the circuit courts of the United States under the 
 express terms of the act of August 13, 1888, if the plaintiff be 
 a citizen of one state, the defendant a citizen of another; if the 
 amount in controversy exceed $2,000, and the defendant be 
 
 109 
 
properly served with process within the district. Excepting cer- 
 tain qusai- jurisdictional facts, necessary to be averred in par- 
 ticular cases, and immaterial here, these are the only facts re- 
 quired to vest jurisdiction of the controversy in the circuit courts. 
 It may undoubtedly be shown in defense that plaintiff has no right 
 under the allegations in his bill, or the facts of the case, to 
 
 bring suit, but that is no defect of jurisdiction, but of title. It 
 
 is as much so as if it were sought to dismiss an action of 
 
 ejectment for the want of jurisdiction, by showing that the 
 
 plaintiff had no title to the land in controversy. At common law, 
 neither an infant, an insane person, a married woman, alien 
 enemy, or person having no legal interest in the cause of action, 
 can maintain a suit in his or her own name; but it never would 
 be contended that the court would not have jurisdiction to in- 
 quire whether such disability in fact existed, nor that the case 
 could be dismissed on motion for want of jurisdiction. The 
 right to bring a suit is entirely distinguishable from the right 
 to prosecute the particular bill. One goes to the maintenance 
 of any action ; the other to the maintenance of the particular 
 action. Thus it was held in the case of Smith vs. McKay, 161 
 U. S., 355, and Blythe vs. Hinckley, 173 U. S., 501, that it 
 was not a question of the jurisdiction of the circuit court that 
 the action should have been brought at law instead of in equity.” 
 
 I thank the court for the attention given to a much longer argu- 
 ment than I had intended to make, and submit the case in so 
 far as the opening upon our side is concerned. 
 
 ARGUMENT OF HON. JAMES M. BECK. 
 
 If the Court please: 
 
 Mr. Darlington is entirely too modest in the conclusion of his, 
 as it seems to me, most effective argument, in speaking of it 
 simply as an opening. In point of fact, it will be the main argu- 
 ment for the appellee in this case. Indeed, I feel the greatest 
 embarrassment in saying anything, and only do so because of 
 the exceptional importance of the case, an importance far beyond 
 the immediate litigants, and having large public aspects, which 
 it is impossible to Jgnore, even though we would. Therefore I 
 feel constrained to say a few words in addition to what Mr. Dar- 
 lington has said, although I will disclaim at the very threshold 
 any intention whatever to go over the legal points which he has 
 so fully covered. To do so would be needlessly to 
 trespass upon both the time and the patience of the court. If 
 I pass them over, it will not be because I do not fully agree in 
 Mr. Darlington’s contentions, but because he has fully discharged 
 the professional duty of counsel for the appellee in that respect. 
 As to the purely legal side of the case, I am therefore very 
 much in the position of the inconspicuous member of Parliament 
 who, being called upon to follow Edmund Burke, could only 
 feebly ejaculate, ‘T say ditto to Mr. Burke.” 
 
 110 
 
In the little time I shall ask the attention of the court I shall 
 only refer to some of the general aspects of the question, especi- 
 ally those which bear upon the justice of what has been done 
 in this case. And that brings me to several points that were 
 suggested in the opening of the case by Judge Parker. 
 
 He laid very much emphasis upon the fact (as though it were 
 a fact, and if a fact, one of any importance in the ultimate ad- 
 judication of this cause) that this case was not brought by the 
 United States Government, but by a private litigant ; and the im- 
 plication, if there was any legitimate implication, was that because 
 it was brought by a private litigant, it had less claim to the 
 careful and sober consideration of the court, and to the affirma- 
 tion of that which was done by Judge Wright. In the first place 
 the premise is faulty, because while it is true that the machinery 
 of the court has been put in motion at the instance of a private 
 litigant, the case as a matter of fact is most fortunately stripped 
 of all aspects that make it a purely private controversy between 
 the Bucks Stove & Range Company and the defendants in this 
 proceeding. ,The complainant could, if it had seen fit in institut- 
 ing this contempt proceeding, have asked the remedial process 
 of the court to compensate it for that which the record plainly 
 shows to be the great damage inflicted upon the Bucks Stove 
 & Range Company, by the flagrant, wanton and avowed con- 
 tempt of the process of the Supreme Court of the District of 
 Columbia. It would have been within the clear legal rights 
 of this petitioner in this proceeding, to have asked Mr. Justice 
 Wright that in formulating his decree he should embody in it a 
 provision requiring that these defendants, before they could 
 purge themselves of contempt, should to the extent of their 
 means make good to the uttermost penny the great wrong that 
 they have done by this great conspiracy against the rights of the 
 Bucks Stove & Range Company to enjoy its property, and the 
 right of its employees to enjoy the labor of their hands as they 
 saw fit. But as a matter of fact the petitioner asks nothing of 
 the kind. As a matter of fact, and fortunately in view of the 
 public importance that this case has assumed, Mr. Justice Wright 
 put by him altogether any question of the wrong and hardship 
 to this petitioner, and treated it solely and exclusively as a case 
 in which there had been a deliberate affront to the court, and 
 an avowed defiance of its authority and a deliberate attempt to 
 obstruct the orderly administration of justice in ways not recog- 
 nized either by the Constitution or the laws of the United States. 
 Therefore while in the first instance the matter was brought to 
 the attention of the court by a private litigant, who had its own 
 private wrong and its own individual damage, yet as a matter of 
 fact from the time that we filed our information, the matter 
 ceased to be a private controversy, and became in the largest and 
 most important way a public controversy, in which the real 
 issue at stake was the majesty of the law, and the question 
 whether the so-called court of last resort of labor, or the court 
 recognized by the laws of the land, was to prevail. 
 
 Ill 
 
As a matter of fact, if the petitioner had had any idea that 
 the proceeding was going to be to its pecuniary advantage, it 
 must have been very sadly undeceived. As a matter of fact I 
 have no doubt whatever that far from this proceeding doing 
 the Bucks Stove & Range Company any substantial good in 
 the mere matter of preventing the further infliction of loss and 
 damage, it has largely failed in that purpose. Indeed it is that 
 circumstance that gives this case surpassing importance; because 
 in every other case of which I have any knowledge, when the 
 chancellor said either by restraining order or final decree, “Thou 
 shalt not ! Thus far and no further !” there was loyal, absolute 
 obedience to the decree of the court, and property rights, and 
 the rights of other workmen than those who are members of 
 this organization, were recognized, and the course of law went 
 smoothly on. But this case, it seems to me, marks almost the 
 turning point in the history of labor controversies in this 
 country. It gives it, as I said before, its exceptional impor- 
 tance. In this case the decree of the chancellor, while of some 
 avail, is largely impotent, because before the chancellor put 
 his pen to the decree, these men, employing a power vaster 
 than any man ever employed outside the machinery of the 
 Government, said that they would not obey it, and when it 
 was signed they took a most effective method of prevent- 
 ing the possibility of any obedience to it by those who fol- 
 lowed them in their lawless course. Therefore, we have this real 
 crisis in the industrial affairs of this country, as well as in the 
 authority of the courts; because it affects the court just as much 
 as it affects property rights. Therefore we have this crisis, 
 of the chancellor’s decree being nullified by an organiza- 
 tion which stretches from the Atlantic to the Pacific, which 
 in its lawless conspiracy has no justification or warrant 
 in law, which even declines the privilege accorded it by Con- 
 gress to be incorporated, and to have some responsibility as a 
 corporate entity. I say we have this defiance confronting the 
 court ; and we have now been told by distinguished counsel 
 that the punishment imposed by the court for an avowed de- 
 fiance of the decrees of this court is to be treated as excessive 
 and as the reckless action of a judge whose sense of judicial 
 discretion had been wholly swept away by personal passion. I 
 am coming to that in a few moments, because it would be unjust 
 to Mr. Justice Wright if something were not said of the 
 remarkable criticisms embodied in the brief which Judge Parker 
 has filed in this court. Therefore I say that so far as this 
 private litigant bringing this proceeding wholly for the purpose 
 of benefitting itself, or for the purpose of preventing further 
 harm to itself, it was almost as impotent in accomplishing its 
 object as, for example, it would have been if after Marc Antony 
 had lashed the mob into, fury and with firebrands they were 
 running through the streets of Rome, setting fire to private prop- 
 erty in every direction, the chancellor (if there had been a chan- 
 cellor in Rome) had served a writ of injunction upon Marc 
 
 112 
 
Antony to stop instigating his followers to riot and trespass 
 upon property rights. 
 
 The issue here is the authority of the court, not merely to 
 make a final order, but as I shall presently show the broader 
 authority, which has been somewhat lost sight of in the argu- 
 ment, the authority by a preliminary restraining order to pre- 
 serve the status quo until the court can determine by orderly 
 process what are the respective rights of the parties litigant 
 in the controversy ; because as I shall presently argue, the right to 
 preserve the status quo is not a right which is to be disposed 
 of upon the same narrow grounds as the right to make a final 
 decree. The chancellor acts in the exercise of different power 
 in the two cases. 
 
 Therefore, this suit is not to be treated as a mere private 
 controversy. It is to be treated as a public suit of great im- 
 portance, in which the litigant simply did its duty to the court, 
 a duty from which the property sought to be protected could 
 derive little personal advantage, but a duty which it thought 
 and its counsel thought it owed to the judge who signed this 
 decree, to bring to the attention of one of the Justices of the 
 Supreme Court, an avowed, flagrant and intentional violation 
 of that decree. 
 
 Now it was said by Judge Parker in his opening that one 
 reason for special consideration to the defendants in this pro- 
 ceeding is that theirs was a following and a leadership that 
 was simply unsurpassed. I quite agree with the premise, but 
 not with the conclusion, because it is the very character of the 
 following and the leadership, and the very character of the po- 
 tent power that each gave, which gave significance and force 
 to utterances and actions which, had they been those of an 
 individual, would have been comparatively unimportant. 
 
 I had occasion to refer to the fact in the argument before 
 Mr. Justice Wright, and I desire to refer to it again, that in 
 the record in this case there was included a document in which 
 Mr. Gompers was referred to as the “master of a million minds.” 
 Well, as the men in buckram in King Henry grew very rapidly in 
 the somewhat heated imagination of Falstaff, so the one 
 million has grown in Judge Parker’s imagination to three mil- 
 lions. The fact is that far from Mr. Gompers’ acts being treated 
 with any greater leniency and consideration because he is the 
 master of one or three million men, who follow him as a leader, 
 he ought to have known that the law would exact a greater duty 
 on his part not to misuse a power so remarkable and so potent 
 for good or evil. Thomas Carlyle once said that the very words 
 of Luther were battles. In the same sense, in an organization 
 of such compact and concentrated power as the American Fed- 
 eration of Labor, Mr. Gompers’ words ceased to be mere words, 
 and became deeds; they were battles, and very destructive bat- 
 tles at that. 
 
 113 
 
As my learned friend, Judge Parker, has ventured to quote 
 Dr. Lyman Abbott as a court of last resort to reverse Judge 
 Wright, I suppose I can quote John Stuart Mill as certainly no 
 less worthy of acceptance in this court. Said Mr. John Stuart 
 Mill in his Essay on Liberty : 
 
 “No one pretends that actions should be as free as opin- 
 ions. On the contrary, even opinions lose their impunity 
 when the circumstances in which they are expressed are 
 such as to constitute their expression a positive instigation 
 to some mischievous act. An opinion that corndealers are 
 starvers of the poor, that private property is robbery, ought 
 to be unmolested when simply circulated through the press, 
 but may justly incur punishment when delivered orally to 
 an excited mob assembled before the house of a corn- 
 dealer, or when handed to the same mob in the form of a 
 placard.” 
 
 I think Mr. Mill’s distinction between the potency of words, 
 when uttered merely as a private opinion, and the effect of words 
 when they are the means of carrying out some unlawful purpose, 
 and spoken under circumstances that inevitably lead to lawless- 
 ness, is to be constantly borne in mind when this court comes 
 to consider this record, with its reiterated story of expressions, 
 which divorced entirely from Mr. Gompers’ leadership, divorced 
 entirely from his immense following, divorced entirely from the 
 conspiracy, would be found to be comparatively unimportant. 
 An ordinary individual might say, “For my part I am not going 
 to buy a Loewe hat,” and the remark would have no significance 
 at all ; but when it is said so as to reach the ears of three million 
 men and carry out a conspiracy that had been found to exist, 
 which the court had declared unlawful when its obvious pur- 
 pose was to continue that which the court had said should 
 
 stop, then the words are not merely an expression of Mr. 
 
 Gompers’ individual preference for a Dunlap or a Knox 
 over a Loewe hat, but become a potent deed. Words 
 
 then become battles. They are the call to arms ; to use Mr. 
 
 Justice Robb’s expression in his opinion in this case, they are 
 “talismanic.” Just as the C. Q. D. flashed across the waters 
 meant as much as if a whole volume had been sent out from the 
 sinking ship, so the word “unfair,” in itself not a very offensive 
 word, or “We Don’t Patronize,” or “I, for my part, will not 
 wear a Loewe hat,” are words which have a defined meaning to 
 Mr. Gompers’ following which cannot be mistaken. Their pur- 
 pose is manifest, and their result inevitable. In such a case, just 
 as in the instance given by Mr. John Stuart Mill in the extract 
 that I have quoted, words become actions, and to say that they 
 are necessarily protected by the Constitution of the United States 
 is to negative the rule laid down by Mr. Justice Holmes, 
 speaking for the Supreme Court of the United States, in the 
 case of Aikens vs. Wisconsin, that the most constitutionally pro- 
 tected of all acts are not legally protected if they are simply 
 a means whereby some unlaw fill purpose is about to be carried 
 out. 
 
 114 
 
I was about to say something with reference to the brief 
 of my friend, Judge Parker, a brief which is a psychological 
 study, for (he will pardon me for saying it) it illustrates a fact 
 of which I should otherwise have been somewhat doubtful, 
 that is, that a very good lawyer can be for a number of years a 
 member of an Appellate Court, and acquire the judicial habit 
 of looking on two sides of a question, and then can step from 
 the Bench, and apparently for the time being, and for the 
 exigencies of a case, wholly lose the power to see both sides 
 of a question. At all events, Judge Parker, in his argument, 
 seems to have tolerant sympathy for everybody in this case 
 except the complainant and Mr. Justice Wright. If Mr. Gom- 
 pers, for example, consigns the court to perdition by a 
 profane expression, it is simply “wanting somewhat in re- 
 spect” ; but when Mr. Justice Wright, indignant as I think 
 any fair-minded man would be at the unfairness, cowardice 
 and brutality of the potent leaders of two million men making war 
 upon one man, with whom they have no legitimate war whatever, 
 then the words become the words of “torrential passion which ut- 
 terly unfits for the exercise of judicial discretion.” I am reading 
 just a few sentences of this part of the brief. Judge Parker says: 
 “It must be that the decree was written by his Honor immediately 
 after he had written his opinion. I am unable to persuade myself 
 that he could have imposed so extraordinary a sentence in his 
 calm moments, and except in the excited condition which accord- 
 ing to psychological laws necessarily resulted from the heated 
 condition of mind which is apparent from the reading of the 
 opinion.” 
 
 Then a little further on he says : 
 
 “What wonder then that a mind so inflamed as must have 
 been his which produced these heated declarations, this fervid 
 declamation, should have become unfitted for judicial calmness, 
 and the exercise of judicial discretion, and should have in the 
 course of its torrential flow swept before it and made a wreck of 
 all precedents — ” 
 
 By the way the precedents that were made a wreck of were 
 conspicuous by their absence either in Judge Parker’s brief or 
 oral argument — 
 
 “and culminated in this harsh, cruel, unusual and unprece- 
 dented sentence, which can be productive of no possible good,” 
 etc. 
 
 Then, after referring to the entire willingness of these gen- 
 tlemen to accept the halo of martyrs, he goes on to say that if 
 these men are punished “it will be simply and only because they 
 have dared to use their pens and to lift up their voices in protest 
 against what they, and many jurists, and statesmen and civilians 
 in other, the highest walks of life, deem an invasion of a right, 
 without which there cannot long exist government by the people 
 and for the people, and the octopus of aggregated wealth and 
 
 115 
 
judicial tyranny as its efficient ally would crush out every as- 
 piration of labor to rise above the plane of hewers of cisterns and 
 drawers of water; and then indeed would those who bear the 
 heat and brunt of the day in the great field of labor, their wives 
 and children, be left naked, defenseless, and undone to the tyrant 
 of Greed, whose cry, like that of the horse leech’s daughter, 
 is always and forever more.” 
 
 That is the language of an ex-Chief Judge of a great Appel- 
 late Court, criticizing the language of a Judge of this Court. 
 Then he goes on to what I am about to say is his definition 
 of what is liberty and not license. Having laid down the prin- 
 ciple that a man can say and write just what he pleases, only 
 subject to a suit for damages or a criminal prosecution by in- 
 dictment and a trial by a jury, he then baldly states the proposi- 
 tion as follows : 
 
 “Subject only to this liability any citizen or association of 
 citizens may assail and traduce any other person or association 
 (for whatever purpose associated) 'in the severest and even vil- 
 est terms and without a shadow of excuse. * * * so long 
 
 as I and those who join me go not beyond the expression of sen- 
 timent and opinion.” 
 
 If that means anything, it means that if Mr. Samuel Compers, 
 instead of contenting himself with impotently spitting at the 
 Supreme Court of this District through the columns of the 
 American Federationist, had led a mob of men into the court 
 room of Mr. Justice Wright, and had applied to him language 
 that was applied in the columns of the Federationist to Judge 
 Gould, then there could be nothing whatever done except to 
 indict him and give him a trial by the jury, with the uncertainties 
 of a trial by jury, or allow Mr. Justice Wright to sue the partic- 
 ular man and his followers, who thus crowded his court and 
 insulted his dignity, in a suit for damages ; in other words, that 
 the judge would have to leave his ermine on the Bench and step 
 down into the arena, and litigate with those men, who mocked 
 at the court and insulted its majesty in a suit for damages, or 
 by a prosecution in the criminal court, the question whether such 
 words were with propriety addressed to him. 
 
 When a very capable and able lawyer like Judge Parker can 
 advance such propositions and put them soberly into print, 
 it is not surprising that his clients have a conception of the 
 liberty of free speech that I do not think is generally shared 
 by the profession or by the Bench in this country. If it should 
 be, there would be an end to law and order in this country. 
 
 Another very remarkable fact is the attempt to cloud this whole 
 issue by extraneous considerations which have, and ought to have, 
 no bearing or influence with this court. I mean, for example, the 
 statements made by Judge Parker in his opening that it was not 
 only important that the judgment of this court should be just, 
 but that it should seem just. At first that seems very plausible, 
 
 116 
 
but it is altogether wrong, as a matter of fact. To support his 
 statement to which I am coming presently, we have in the ap- 
 pendix to his brief Dr. Lyman Abbott’s editorial in the Out- 
 look, which doubtless is interesting to the readers of the Out- 
 look, but of very little importance to the courts or lawyers of this 
 country. Secondly, we are also told that Mr. Gompers and Mr. 
 Mitchell went to the banquet of the Civic Federation in New 
 York, and that there very pleasant words were said by Mr. 
 Low in introducing Mr. Mitchell, and that Mr. Carnegie also 
 said something very pleasant; and then it is said that Mr. Gom- 
 pers said this of himself, and therefore it ought to be accepted : 
 “I have been brought up to have a rather high conception of 
 Americanism, of American ideals and of American fair play ; to 
 fight your battles fair and square, and then even for a time to 
 honestly and faithfully yielding and abiding by the results.” 
 
 Of course I will not stop to say that the unanimous opinion 
 of the Bench of this country is that the boycott — Mr. Gompers’ 
 chief weapon — is a cold-blooded, cowardly, brutal and malicious 
 conspiracy, that it has nothing to commend it either in law or 
 morals ; and that inasmuch as the boycott is the chief weapon 
 and the great purpose of the organization of which Mr. Gompers 
 is the very effective head, that fact with its long record of some 
 hundreds of successful boycotts, contrasts very strangely with 
 this declaration of love for American ideals and fair play; but 
 be that as it may, I was about to suggest that whether or not the 
 banquet of the Civic Federation gives the defendants any better 
 standing in this court, it is wholly apart from the purpose 
 whether what your Honors do or whether what Mr. Justice 
 Wright did seems just to the public or not. Of course, if it were a 
 matter of any importance it might be very easy to contrast 
 with Dr. Lyman Abbott’s editorial, other editorial expressions 
 which are to the contrary, but I think it would be un- 
 worthy of the case to do so. Mr. Justice Creswell of 
 the English Bench was once charging the jury. In the 
 midst of the charge he said something that appealed to the 
 popular ear and there was a ripple of applause. The Justice 
 at once stopped the applause as an insult to the court, and said : 
 “The cause of justice is in very great danger when the applause 
 of a court room is agreeable to a judge’s ear.” In the same 
 way I think it is true that it would be a very great mistake for 
 the court, whether the court of first instance or the Appellate 
 Court, to have any regard except for the law and the justice of 
 the case, wholly without consideration to what interpretation the 
 public may or may not put upon it. Having said that much, to 
 what does the case reduce itself? 
 
 Mr. Darlington has, I think, demonstrated to this court be- 
 yond question, that these gentlemen, in the teeth of our protest, 
 in the teeth of our willingness to open the judgment imposed be- 
 low, to enable them to get a bill of exceptions, have deliberately 
 refused the only method of bringing before the court any legal 
 questions. The testimony in the case by a bill of exceptions is 
 
 117 
 
not here. What reason they had for disregarding that which is 
 the plain decision of the Supreme Court, that this matter could 
 only be heard by writ of error and then on bill of exceptions, 
 I know not. Of course the mere fact that it is now called under 
 the code an appeal does not strip the appeal of its essential char- 
 acter as a common law writ. 
 
 What is there before your Honors? Simply the petition, the 
 return, and the judgment of the court. With respect to the 
 judgment of the court so far as the petition is con- 
 cerned, it can not be said that this judgment could be reversed on 
 that account. The proceedings, the answer, the return, admitted 
 everything that we charged against the defendants except the 
 intent with which it was done. Of course there would be no 
 possibility of reversing the judgment on that account. It comes 
 then to the proposition whether or not, without any bill of 
 exceptions, there is anything on the face of this record that would 
 justify this court in setting aside that whjch was done by Mr. 
 Justice Wright in the court below? In that connection, I want to 
 call your Honors’ attention to this fact: Mr. Justice Wright 
 specifically found certain facts, and among these facts was the 
 following: Having recited these various infractions of the pre- 
 liminary injunction, all of them subsequent to the time it became 
 effective — 
 
 Mr. Justice Van Orsdel : Assuming that your proposition is 
 correct, that this case should have come here on error, and there 
 is no bill of exceptions before us, and we have nothing to .con- 
 sider in order to determine whether there was an error of law 
 but the pleadings and the judgment, do you contend that we are 
 precluded from looking into the findings made by Justice Wright, 
 and also the opinions delivered by Mr. Justice Wright, to ascer- 
 tain how he arrived at this judgment? 
 
 Mr. Beck: I think so far as the decree is concerned, you are 
 certainly entitled to look at the findings of facts with respect to 
 it, but if there be any portion of the decree to sustain the 
 sentence, it seems to me it is precisely like the case of an at- 
 tempt to reverse a conviction on an indictment of fifty counts, in 
 which some counts are good and some faulty. 
 
 Mr. Justice Van Orsdel: What do you think of our right to 
 look into the opinion? 
 
 Mr. Beck : That is something of which I have not thought 
 particularly, but personally I would have no objection at all to 
 the court looking at anything that Judge Wright had said with 
 respect to it. 
 
 Mr. Justice Van Orsdel: That was a question that arose in 
 my mind. 
 
 Mr. Beck : I do not think there is any lack of harmony be- 
 tween the two. 
 
 118 
 
The Chief Justice: It might be a material question in case 
 we should find that the case ought to be brought up by a bill of 
 exceptions, in the nature of a special finding by the court, of the 
 facts on which he based the decree. 
 
 Mr. Beck: Of course the opinion is not in any sense a finding 
 of facts. The opinion is simply the expression of the court, 
 giving his reasoning through which he makes a specific decree. 
 The decree is the specific finding of facts. 
 
 The Chief Justice: In order to determine the question of 
 whether a thing has been adjudicated, we are frequently forced 
 to look at the findings of the court, or the instructions of the 
 court, as to whether certain facts were taken into consideration 
 or not. 
 
 Mr. Beck : The only point I am making is this : I think 
 that so far as specific violations of the injunctions for which this 
 punishment was imposed are concerned, your Honors ought to 
 look only to the judgment, because the judgment had for its pur- 
 pose the specification of the grounds upon which the sentence 
 was imposed. Of course the opinion contains allusions to many 
 other facts in the record that were evidential, that were part of 
 the reasoning by which the judgment was reached, but not the 
 offenses for which the punishment was imposed. For instance, 
 all that took place before the injunction became effective were 
 facts that went to animus and intent and aggravation. Of course 
 the court in imposing sentence had to look over the whole record, 
 and determine how far this was an aggravated, intentional viola- 
 tion of law, and how far it was an honest mistake or misappre- 
 hension without any deliberate intent to affront the majesty of 
 the court. But the reasoning, that gives aggravation or mitigation 
 to the sentence, I do not think is before the court for the purpose 
 of determining the validity of the judgment, because it only goes 
 to the quantum of punishment, with which I apprehend this court 
 really has nothing to do. The judgment specifically finds the 
 truth of certain facts, and also certain paragraphs of the peti- 
 tion, by reference. The last of these is 26, and I want to call 
 your Honors’ attention to one clause of 26. Having recited the 
 decree, the court says : 
 
 “Yet, by the acts, means, devices and subterfuges afore- 
 said—” 
 
 “Aforesaid” are the preceding paragraphs. I am now reading 
 the 26th paragraph of the petition, which the court has found to 
 be true — 
 
 “the said Samuel Gompers, Frank Morrison and John Mitchell 
 have designed and sought to continue in force and effect, and 
 have continued in force and effect, in wilful disregard, violation, 
 disobedience and contempt of the aforesaid order and decree of 
 this court, the boycott against petitioner and the conspiracy 
 recited in the bill to destroy its business which they and the other 
 
 119 
 
defendants have been and are, by the said order and decree, re- 
 strained and enjoined from continuing.” 
 
 All that is said in the previous part of this judgment must 
 be' read in connection with that statement ; in other words, these 
 declarations of Mr. Gompers and these acts of Mr. Mitchell, 
 like his submitting the resolution to continue the boycott to the 
 United Iron Workers, etc., were the devices, the means and the 
 subterfuges by which these respondents sought to continue in 
 full force and effect, boycotts which had been preliminarily re- 
 strained by an unreversed decree of the court, as to which there 
 was not even a supersedeas allowed. 
 
 The first thing I want to suggest to the court is whether or not 
 the things for which they have been punished are not within even 
 the modified decree. I do not say that it is necessary that they 
 should be, but I say are they not as a matter of fact? The sub- 
 stantial criticism that this court by a majority made with refer- 
 ence to the final decree below was that it enjoined certain acts, 
 without reference to the fact whether they were or were not “in 
 furtherance of the boycott.” If you could, from the face of this 
 judgment, determine that these men had been sentenced for acts 
 which they did not do in furtherance of any boycott, then, of 
 course, the court, if you have any power collaterally to attack 
 this injunction, could say, “This is not within the modi- 
 fied decree.” I am now leaving aside for the moment the 
 question suggested and argued by Mr. Darlington, as to whether 
 they could defy even an erroneous decree, if the court had general 
 jurisdiction. But the trouble is that you can not find in this 
 judgment, with its specifications of facts upon which these men 
 were adjudged guilty of contempt, that anything they did was 
 not “in furtherance of the boycott” ; and I assert, the court has 
 specifically found that each and every action and each and every 
 statement, and each and every printed sentence, were “in fur- 
 therance and with the design and purpose of continuing this 
 boycott” against the petitioner. 
 
 So the first argument I shall address to your Honors is that 
 even if you have the right to measure the justice of what was done 
 in the court below by your modified decree, yet nevertheless it 
 is within the modified decree because every essential fact is 
 found by the court ; and such findings of fact are conclusive in 
 this tribunal with or without a bill of exceptions. You have a 
 specific finding of facts that all of them were in “furtherance 
 of the boycott.” 
 
 But suppose I am wrong in that. These men were punished 
 for doing these acts in violation of a preliminary injunction. This 
 court has not said yet that this preliminary injunction was in ex- 
 cess of the power of the court. It has not passed on the ques- 
 tion. This question has not been before this court. What your 
 Honors said was that the final decree was, as a matter of fact, 
 too broad in certain respects, in not including the sentence “in 
 furtherance of the boycott” and other minor details not essential 
 to this argument. 
 
 120 
 
Mr. Justice Van Orsdel : Was not the final decree an exact 
 copy of the preliminary? 
 
 Mr. Beck : Practically so. 
 
 Mr. Justice Van Orsdel: Is it not before us in these two rec- 
 ords? 
 
 Mr. Beck : Oh, yes. 
 
 Mr. Davenport : They are both in the petition. 
 
 Mr. Beck: I am conceding that outside of minor and un- 
 essential variance, the two decrees were the same; but does it 
 follow at all that because the final decree was modified by a 
 majority of the court, that the other decree has not the full 
 force of law? I say it does not follow for two reasons. The 
 power of the court to exercise its great prerogative of preserving 
 the status quo is a very different power than the power to finally 
 decree. The best illustration of that is this : It is the 
 highest and most palpable error for a court to enter a 
 final decree without hearing the other party. It is vital 
 to our institutions that no man shall have a final decree entered 
 against him until he has had his day in court and been heard. 
 But as to a restraining order that is not so. It is the immemorial 
 prerogative of the chancellor, that even this great funda- 
 mental principle of our institutions that no man shall have any 
 order entered against him until he is heard, does not apply to that 
 which is absolutely essential to equity jurisprudence, namely, the 
 right of a .chancellor upon an ex parte statement of one litigant, 
 when he sees that the thing in controversy might be wholly de- 
 stroyed pending litigation, and his power to do justice finally be 
 defeated unless he stays the hand of the other party until he can 
 hear the cause, to preserve the status quo. So that great 
 prerogative right of the chancellor is much broader than 
 the power to enter a final decree. This must be so. The 
 Judiciary Act of 1789 was passed at a time when the 
 equity powers were not so necessary, because our society 
 was a great deal less complicated, and combinations were 
 not such a deadly menace as they are today. Under that Judi- 
 ciary Act of 1789, no injunction could be issued without notice 
 to the other side; but in 1872 the necessities of civilization re- 
 quired a different rule, and whatever may be said of Congress 
 in recent years, it has steadfastly refused to change the rule that 
 it made in 1872. That rule was (I can not quote the exact lan- 
 guage, but your Honors know it) that there could be a restrain- 
 ing order entered without notice, whenever to the chancellor there 
 was reasonable apprehension of irreparable harm to the litigant. 
 In this case these respondents are before the court in part, al- 
 though I can not candidly say wholly, for the violation of the 
 preliminary injunction; not wholly so, because the final order 
 punishes them for disobeying both the preliminary and the final 
 decree. But after all it does not really matter which they did, 
 for the purpose of imposing punishment, because the affront to 
 the court is quite as important, whether done on one occasion 
 
 121 
 
or two. But the preliminary injunction in this case was issued 
 by Judge Gould to preserve the status quo. Now, it often hap- 
 pens that for the time being the court must temporarily prejudge 
 a controversy, prejudge the very question at issue, in order to do 
 ultimate justice at all, because otherwise the thing in controversy 
 may be utterly destroyed. For instance, you take the very re- 
 cent case in the Supreme Court of the United States, of the 
 United States vs. Shipp, where a man had been convicted in Ten- 
 nessee of an unspeakable crime, and he had been sentenced by 
 the State courts to be hanged. He sued out a habeas corpus in 
 the Circuit Court of the United States. The Circuit Court of 
 the United States held that it had no jurisdiction, and dismissed 
 the petition. He then went to Mr. Justice Harlan and got the 
 allowance of an appeal to the Supreme Court of the United 
 States. Thereupon, Judge Harlan remanded the man to the 
 custody of the sheriff of the Tennessee County, with instructions 
 to keep him until the Supreme Court could determine whether 
 it had jurisdiction. You will observe that the interference of the 
 Supreme Court was an interference which temporarily assumed 
 the very point in question, namely, whether it had jurisdiction to 
 hear the controversy at all. But the court had to do that, other- 
 wise no justice could be done. The result is they said, “True the 
 Circuit Court of the United States below says it and no United 
 States court has any jurisdiction. If it has none, we have none by 
 way of appeal. Yet we will preserve the status quo, namely, the 
 life of this prisoner, until we can pass upon this question;” and 
 when, through the connivance of the sheriff, and a mob, the man 
 was lynched, and contempt proceedings were instituted in the Su- 
 preme Court, Mr. Justice Harlan rendered an opinion in which 
 he said in answer to the objection that was made that there was 
 no jurisdiction of the Supreme Court to issue the order, and 
 that there could be no contempt of an order for which there was 
 no constitutional or other authority, the Supreme Court said, “No. 
 True we might not have had jurisdiction to have allowed this 
 writ, but we had a right to say so, and until we said so we had a 
 right to preserve the status quo ; because if you hang this man 
 first, it was idle for us afterwards to determine whether we had 
 jurisdiction and whether in the courts of Tennessee he had a fair 
 trial or not.” 
 
 It is precisely so here. Here is a preliminary injunction grant- 
 ed to preserve the status quo, and to prevent these men from 
 doing something which they claim they had a right to do, and 
 which Mr. Justice Gould did not say they did not have the right 
 to do, but which, if they went on and did it before the decision, 
 the Bucks Stove & Range Company might have been in the hands 
 of a receiver. Mr. Justice Gould said: “True, I must temporarily 
 assume the very point at issue, but I am going to stay your hand 
 until I have the opportunity to determine whether you have a 
 right to do it.” Therefore this injunction was issued. 
 
 I wish to call the attention of the court to the fact that 
 if I get a voidable decree and the other side does not appeal, 
 
 122 
 
and no step is taken to correct it, my right in what I have ob- 
 tained in the due course of law is mine, whether the thing is 
 voidable or not. So here these defendants could have brought 
 an appeal from that interlocutory injunction, or that preliminary 
 injunction. They did make a motion to modify it. It was de- 
 nied, and they took no exception to it. They did not take any 
 appeal from it. This court never passed upon it. It did pass 
 upon the final decree, but never upon the preliminary decree. 
 Therefore we have a sentence imposed for a defiance by these 
 men of a preliminary order, which this court has neither modified 
 nor reversed, and which was not appealed from in order to de- 
 termine its validity. It seems to me the judge who granted it, in 
 the absence of a reversal as to that decree, had a right to punish 
 for contempt, and this petitioner has property rights in that de- 
 cree, even if it were voidable. 
 
 But after all it is not important for this court to determine 
 either of those contentions. I will not go over Mr. Darlington’s 
 argument. I can not anticipate what impression it has made upon 
 the court, but to me it seems unanswerable. Certainly it is un- 
 answerable if the weight of authority is to be followed, and the 
 fact remains unassailable that until the decree of a court, which 
 certainly had jurisdiction of the subject matter, concededly had 
 jurisdiction both of the subject matter and the parties, was re- 
 versed in the orderly course of judicial proceeding, it was a de- 
 cree which was the law of the land, and pro tempore it was the 
 law of the land, and had to be obeyed as such. Now that law 
 is very old. The decision as cited by Mr. Darlington substan- 
 tiates that. But let me simply refer to the language of Mr. 
 Chief Justice Marshall in ex parte Watkins, 3 Peters, 193, in 
 which he says the cases are numerous which decide that the judg- 
 ments of a court of record, having shown “general jurisdiction” 
 of the subject, although erroneous, are binding until reversed. 
 
 Now, of course, to that proposition there does not seem to be 
 any serious dissent, but the question arises wholly on what is 
 the meaning of having “general jurisdiction.” 
 
 When a court commits error, it acts in excess of its authority. 
 If it did not, it would not be in error; and when it acts 
 in excess of its authority, it is in a minor and vague and 
 general sense lacking jurisdiction. But within the mean- 
 ing of this rule as announced by the great Chief Justice, lack of 
 jurisdiction is lack of fundamental jurisdiction, or general juris- 
 diction of the subject matter and of the parties. And I think a 
 great deal of the confusion that has arisen in some of the decisions 
 in some of the States, and perhaps the difference that apparently 
 existed between Mr. Darlington and possibly one member of the 
 court in his suggestions, is the fact that we have been using “juris- 
 diction” in two different senses, one in its fundamental, constitu- 
 tional sense, which is one thing, and the other in a lesser sense, 
 which is really not fundamental jurisdiction, but which simply 
 has reference to exercise of authority in a matter that is inciden- 
 
 123 
 
tal to a general cause. For example, take stockholders’ suits : 
 It has been held by the Supreme Court of the United States that 
 even if a man brings suit in behalf of a corporation without con- 
 sulting the corporation, notwithstanding that Rule 94 says he 
 can not do it, and notwithstanding the fact that he has no com- 
 mon law or equitable right to sue for the corporation, except 
 upon conditions that equity may prescribe — the Supreme Court 
 says that the question is not so fundamental and jurisdictional 
 that he can go to the Supreme Court under the Act of 1891. In 
 other words, it is not jurisdictional in any fundamental sense 
 whatever, but simply goes to the propriety of equitable relief. 
 So there are many uses of the word “jurisdiction” in connection 
 with the exercise of authority, that are to be sharply differen- 
 tiated from the use of the word “jurisdiction” in the sense 
 in which Chief Justice Marshall has used it in this particular sen- 
 tence, and as it has been used in the cases cited by Mr. Darling- 
 ton. 
 
 Can it be disputed for one moment that Mr. Justice Gould 
 had jurisdiction of this bill in equity by the Bucks Stove 
 Company against these respondents? They never disputed it. 
 They never suggested in their answers that they were not prop- 
 erly before the court, that they were not suable in the District of 
 Columbia. They never suggested by demurrer that the bill 
 be dismissed, and no proceeding was taken of that kind, except I 
 should say in frankness that there was a suggestion as to whether 
 the American Federation of Labor could be sued as though it 
 were an entity. But to the extent of these individual defendants, 
 the jurisdiction of the court was never challenged, and the right 
 of the court to adjudicate the quarrel between these individuals 
 and the petitioner is a right which has never been disputed at any 
 stage of the proceedings. The Court may have made the pre- 
 liminary injunction too broad. We do not concede this but 
 urge the contrary; but suppose it did? Its error may be very 
 grave. It may be an error in the misapplication of the Consti- 
 tution of the United States, but that does not make it any the 
 less a mere error, that does not go to its jurisdiction in the funda- 
 mental sense, but simply goes to the propriety of what the court 
 has actually done. In that sense I think Mr. Chief Justice Mar- 
 shall used the word “erroneous,” and in that sense it is abso- 
 lutely true that when Mr. Justice Gould entered his restraining 
 order, whether that order violated the Constitution of the United 
 States or not, that Constitution had prescribed its method, med- 
 iately or immediately, directly or indirectly, of reversing that 
 order, and until it was reversed it was the law of the land, and 
 as such every man had to obey it with all the loyalty due to the 
 decrees of a court. And especially I repeat is that true where 
 the order was of that preliminary character that had no other 
 purpose than to preserve the status quo so that final justice 
 should be done. 
 
 Without attempting to discuss the many interesting questions 
 that the case suggests, because it is idle to go over ground that 
 
 124 
 
has been so fully covered, I was about to say that this implicit 
 obedience to an order, even if it be erroneous, emphasizes that 
 which is to me the serious question in this whole case, and that is, 
 that this is not an ordinary contempt proceeding. It arises to the 
 dignity of a clash between two tribunals, one constituted by law 
 and the other constituted by individuals, for which the law has no 
 recognition whatever. Let me read what Mr. Gompers, with his 
 effectiveness of expression, has said. In discussing in one of the 
 annual meetings of the American Federation of Labor the duty 
 of obedience to what the executive committee or executive coun- 
 cil of that board direct in the interim between annual conventions, 
 and then speaking of the inferior affiliated bodies, he says : 
 
 “They are not only the local municipal council of industry, 
 dealing with sociological problems, but they are also the con- 
 crete power to enforce and execute within the jurisdiction of 
 their existence, the judgment of the highest court in the realms 
 of labor of America, the American Federation of Labor. When, 
 however, the final word has been spoken by the court of last 
 resort of labor, composed of the representatives of the intelligent 
 organized 'wage earners of America,” etc. 
 
 Now, it might be suggested that this had no reference to a clash 
 between the court of last resort of labor and the courts of the 
 country, and I say in candor that when the words were penned 
 such a conflict may not have been in the mind of the author of 
 /hat statement, but their significance was precisely that, for not- 
 withstanding the ample recognition by the American Federation 
 of Labor that the courts of this country had declared the boy- 
 cott illegal, the American Federation had, in large characters in 
 their constitution, made it their great end ; they had concentrated 
 the power over the boycott in their executive council, so as to 
 make it an exceedingly potent power, and then, as Mr. Justice 
 Robb in his opinion says, they had unseated the delegates of one 
 whole constituent body because this one particular body had re- 
 fused to obey a boycott when it had been ordered by “the highest 
 court in the realms of labor of America.” 
 
 And in that connection let me read a sentence from one of Mr. 
 Gompers’ annual reports, which is also quoted in Mr. Justice 
 Robb’s , opinion, because it has so effective a bearing upon Judge 
 Parker’s statement in his brief which I will now quote. Speak- 
 ing of Mr. Gompers and Mr. Mitchell, Judge Parker says : 
 “Whose voices and pens have been lifted and used continually 
 and uniformly and only in the conservation of good will and 
 kindly relation between capital and labor.” 
 
 Let me read as against the eloquent eulogium of counsel 
 what the American Federation of Labor, both by the address of 
 its president, Mr. Gompers, and in his annual report of the Com- 
 mittee on Boycotts, said : 
 
 “We must recognize the fact that the boycott means war, and 
 to successfully carry on a war we must adopt the tactics that 
 
 / 125 
 
history has shown are most successful in war. The greatest 
 master of war said that war was the trade of a barbarian, 
 and the secret of success was to concentrate all your forces upon 
 one point of the enemy, the weakest, if possible.” 
 
 This is the voice of one who loves fair play, to concentrate all 
 your forces on the weakest. In other words, the very things 
 that stand out in this record above all others are that here is a 
 power, according to Judge Parker, of three million men, con- 
 centrated in some eleven men of the executive councd. To 
 what they order with respect to the boycott there must be im- 
 plicit obedience. Otherwise a man is liable to be thrown out of 
 the American Federation, and possibly his whole constituent 
 body be deprived of its charter. And quite frequently they use 
 their power not merely against the liberty of the employer, but of 
 the far greater number of working men who are not enamored of 
 this particular form of trades unionism. Their purpose is to con- 
 centrate the vast potential power of this mighty army, an army 
 greater than was ever put into the field of battle by any general 
 or monarch in the known history of the world (unless we credit 
 the ridiculous exaggeration as to the size of Xerxes’ army) 
 upon one man at a time, or at the most three, as to any form of 
 industry, and these chosen victims are to be ground to powder 
 until they submit to the inevitable. That is a criminal conspiracy 
 which has been denounced by men eminent in public life as well 
 as by every court that has ever had occasion to speak upon the 
 subject. 
 
 Therefore this record presents the clear and sharp issue of 
 industrial liberty as against industrial slavery. It is appalling to 
 think of the consequences that would result if these respondents 
 leave this court or any court in this country with the conviction 
 that they can defy the decrees of the court of equity with impun- 
 ity. Because if so, the chancellor is absolutely valueless in any 
 future case arising out of a criminal or unlawful boycott, 
 especially where the boycott is national in its character 
 and scope. These respondents have stripped themselves 
 of any pretense of wanting to obey this decree. Their 
 contention is not the contention of their learned counsel ; 
 there is the widest discrepancy between the two. Their counsel 
 say that these gentlemen never intended to violate the law ; but 
 these gentlemen upon their statements, as set forth in this record 
 and admitted by them, said openly, frequently and emphatically, 
 said it in mass-meetings, said it in print circulated by the thou- 
 sands and thousands of copies, before the injunction was granted, 
 that they would not obey it, using the most profane and dis- j 
 respectful expressions with respect to the court ; and after it was i 
 granted they refused to obey it. To continue the boycott it did 
 not require a proclamation such as Napoleon issued to his sol- 
 diers. It did not require a long-winded statement from Mr. 
 Gompers to the effect that “this injunction has been granted, | 
 pay no attention to it, go ahead.” All he had to do was ta i 
 
 126 
 
j say what he would do and the rest would follow. Therefore; 
 these expressions, as I said in opening, in themselves seemingly 
 innocent, become battles, become a proclamation at least of bat- 
 tles, because they had an ascertained and inevitable significance 
 to these people, as to their duty to the great national organiation, 
 to which they were parties. The proof of the pudding is in the 
 eating ; because we know what did occur subsequent to these writ- 
 ten and printed utterances of Mr. Gompers. 
 
 The Chief Justice : Now what did occur, aside from what they 
 published and said, what did occur toward the furthering of 
 this boycott ? What did they do ? Was there any overt act 
 proved, by any of these people, similar to those that were going 
 on before the preliminary injunction? 
 
 Mr. Beck: The overt acts were these: Mr. Gompers went 
 from one end of the country to the other, preaching in mass 
 meetings, using words that could have only one legitimate import, 
 and that was that the boycott should go on and would go on, all 
 the injunctions to the contrary notwithstanding. 
 
 The Chief Justice : Suppose nobody paid any attention to 
 those remarks? 
 
 Mr. Beck: As a matter of fact they did, but it is a matter 
 of no importance whether anybody paid any attention to them or 
 not. The question of disobedience of the order is the important 
 thing. 
 
 The Chief Justice : It might be of considerable importance for 
 example in this way : Suppose an expression was equivocal in 
 its meaning, a remark addressed to a person. If that person 
 goes off and does a thing that is seemingly an execution of one 
 of its meanings, from that we might presume very strongly that 
 that was the intention of the party, that they were both acting 
 on that understanding ; but if it was addressed to another, to 
 whom it did not appeal in that way, the court might well find 
 that it was strong evidence of an intention that a particular re- 
 mark should be accepted as having a particular meaning. 
 
 Mr. Beck: Undoubtedly, if your Honors had any power to 
 leexamine the facts. I submit, however, that if you have not with- 
 out a bill of exceptions, then it would be of little evidential 
 value. . Even if you have the power to reexamine the facts, 
 the evidence is here. This company did a business of $1,200,000 
 previous to this action of these respondents and after that it did 
 a business of $600,000. Then we have specific instances proved 
 which I think are not hearsay, because they belong to that pecu- 
 liar class of cases where the things said are the res gestae, it 
 is a part of what took place; it is what took place after these 
 incendiary proclamations were issued. 
 
 . Right in that connection I wish the time permitted but 
 it is not important, because the judge did not base his 
 
 127 
 
decision on that, it would be most interesting to discuss 
 the question whether, before an injunction becomes effective 
 a man can start in operation a chain of consequences which 
 he knows will inevitably continue after the injunction be- 
 comes effective. In other words, to use an illustration 
 that I used before Judge Wright, if I know that the 
 chancellor is about to sign a decree forbidding me to destroy 
 a certain building that I want to get out of the way, and I have 
 a time fuse, if I light it just before the decree is signed, and 
 the explosion takes place after the decree is signed, destroying 
 the building, can I be allowed to say, “Why, I did nothing except 
 before the decree was signed” ? The fact of the matter was that 
 when they rushed out this edition ahead of its proper date of 
 publication, they were setting into operation a chain of circum- 
 stances which they knew they could never wholly recall, and 
 which they knew would inevitably defeat to some extent the very 
 purpose of the injunction. But that point is not before the court, 
 because Judge Wright was very careful not to base his decision 
 upon anything that was done before the injunction was effective, 
 except to the extent that it was evidential in showing malice 
 and intent, and except to the extent that it went to the aggrava- 
 tion or mitigation in that which was his exclusive prerogative, 
 namely, the determination of the quantum of punishment. They 
 were not punished for the substantive violations of the injunc- 
 tion, for anything that was done before that order became effec- 
 
 tive. , 
 
 I was diverted somewhat in thinking of that matter of the 
 injunction, in speaking of this power concentrated in the Ameri- 
 can Federation of Labor, and all that it implies. It may be, and 
 I am perfectly willing as a matter of charity, to assume that these 
 gentlemen have motives that are sufficient to them. Un- 
 fortunately, the courts have determined otherwise. Per- 
 sonally, so far as the attorneys of the petitioner are con- 
 cerned, we never suggested to Judge Wright in any way what 
 his punishment should be. We permitted our client as a litigant 
 to drop out of the controversy, because we felt there was a 
 much larger issue than any remedy to the petitioner. It was 
 purely a question of what the court should do in its own vindi- 
 cation; and the court, having due regard for the monstrous 
 character of the conspiracy, to which there is no fitting parallel 
 in the records of this country, imposed a sentence which is often 
 imposed for the most venial offenses committed in the District 
 of Columbia. 
 
 A great deal has been said about the sentences. We 
 are referred to the statutes of states which provide that 
 thirty or sixty days, or six months, shall be the limit of such 
 sentence. What is sufficient for the states is a question for 
 the states to determine. But even if that could be taken as a 
 measure of what is or is not judicial discretion, the answer is, 
 sufficient that that which is done within the borders of one 
 state is not comparable to that which is done from the Atlantic 
 
 128 
 
to the Pacific and from the Lakes to the Gulf, a conspiracy 
 extending to every corner of this land, and strangling not merely 
 interstate commerce, but strangling individual enterprise and the 
 right of the individual to work in various parts of the country. 
 
 Mr. Justice^ Robb: They were not punished — this was not 
 a punishment, was it? 
 
 Mr. Beck: Well, it was only a punishment to the extent of 
 a vindication of the authority of the court. Of course if your 
 Honor understood me to imply that the punishment . was to be 
 proportionate to the magnitude of the conspiracy to boycott, 
 why, I want to disclaim that intention. What I do say is that 
 it is one thing for John Smith to say a workman belonging to 
 one of these constituent unions, in a little local controversy, 
 violating a decree of the court, and it is quite another thing, 
 and a vastly different thing, when the “master of a million 
 minds,” having repeatedly avowed his contempt for the court, 
 having previously consigned it to perdition, having previously 
 said that he would go on and do that which he pretended to 
 think he had the right to do, “all the fool injunctions to the 
 contrary notwithstanding,” when that man sets an example of 
 lawless defiance to the court and puts into operation a chain of 
 circumstances which are absolutely beyond his recall, and makes 
 it absolutely impossible for this or any court to do justice. To 
 say under those circumstances that the punishment in this case 
 is so excessive as to be a violation of judicial discretion, seems 
 to me almost to border on the ludicrous. 
 
 I want to say that Judge Parker’s eulogium of two of his 
 clients, with respect to the fact of their disclaimer before the 
 court of any intention to violate these orders, notwithstanding 
 the fact that elsewhere they had freely claimed their purpose 
 to do that very thing, is rather remarkable in view of this 
 record, because there are certain circumstances which might well 
 justify a judge of less intense temperament than Mr. Justice 
 Wright in expressing his just indignation. It reminds me very 
 much of what I saw in today’s Washington Post. One of the 
 ladies of the D. A. R. told a story of a traveling evangelist who 
 had painted on one end of his wagon the words, “God is Love,” - 
 and at the other end of the wagon the words, “Our dog has all his 
 teeth.” So with these expressions of loyalty when haled before the 
 court for contempt, as compared with the most positive and. 
 profane expressions of disloyalty elsewhere. Their reconciliation 1 
 is impossible. As a matter of fact I ought to say, in justice to 
 
 Mr. Gompers, that he disclaims the word in the “ ” when 
 
 he said, “Go to with your injunctions,”' He says he simply 
 
 indulged in his love of classical literature, and what he really 
 meant was, “Go to with your injunctions.” He would have us 
 believe that it was an expression of Elizabethan English that 
 came to him in the watches of the night, and he thought it was 
 just as Shakespeare would have said it and therefore he simply 
 said, “Go to with your injunctions.” Well, I do not know that 
 
 129 
 
that would strip it of its contempt, but it does give some pause 
 to any judge as to the weight to be given to his other disclaimers 
 when he gravely tells the court that he did not mean what he 
 himself anticipated everybody else would understand him to 
 mean by the expression to which I have referred. In the same 
 way, when they filed their answer in this case, they deliber- 
 ately stated that they not only did not put these people on the 
 unfair list, but had no intention of doing it, although three 
 different numbers of the Federationist filed in this court had 
 these men on the unfair list. So it comes down to this propo- 
 sition, whether a court whose credulity has been somewhat 
 shocked, whose decree has been defied, whose authority has been 
 insulted, which has been the object of scorn, so far as these 
 gentlemen could make a judge of a court of the United States 
 an object of scorn among a law-abiding people like the Ameri- 
 can people — whether such men are entitled to any special con- 
 sideration in an appellate court when they ignore the only way 
 by which they could bring these questions of law before the 
 court. 
 
 Let me just say in conclusion that there never was a case in 
 which there ought to be less objection to an injunction 
 proceeding than the present case. With the single exception of 
 the absence of trial by jury, every single criticism that has ever 
 been preferred by one element of labor with respect to injunctions 
 and contempt proceedings, is absent in this case. We filed our 
 bill in August, 1907. We never asked for a preliminary injunc- 
 tion until the following November. We did not ask for it upon 
 ex parte statements, but we took testimony to a very considerable 
 extent. The court after hearing arguments, and hearing all that 
 the other side had to say, took a full month to decide it, because 
 December 16th was the time when the judge rendered his opinion 
 that this boycott was illegal, and the injunction was issued, and 
 he prescribed the very form of the injunction. Did we then 
 rush into court quickly and claim that the injunction was vio- 
 lated? Although that injunction became operative December 
 23d, we, as counsel for our client, stood with a patience that 
 was, if anything, unjust to our client — stood this open and delib- 
 erate and avowed violation of this injunction of December 23, 
 1907, until the late summer of 1908. 
 
 Mr. Darlington, Mr. Davenport and I not only owed a duty 
 to our client, but an even greater duty to the court that had 
 at our instance entered this decree. Nevertheless, at the possible 
 sacrifice of the interests of our client, .we stood by until patience 
 fully ceased to be a virtue, and we never applied for an attach- 
 ment in contempt proceedings from December 23, 1907, until 
 some time in August, 1908. 
 
 And then did the judge act in haste? Did he hale these 
 people to the bar of the court and give them no chance or oppor- 
 tunity to be heard? On the contrary, we took testimony for 
 months in different parts of the country, set forth in this vol- 
 
 130 
 
uminous record. And when that was done, did this judge at 
 once pronounce judgment upon these men? Did he without ar- 
 gument, without consideration, in a fit of choler and passion, 
 as intimated in Judge Parker’s brief, at once render judgment? 
 Why, on the contrary, for a full month he reserved his judg- 
 ment. We argued the case November 16, and it was not decided 
 until the middle of the following month, I think December 23. 
 Then he rendered an opinion which, if it were somewhat intense 
 in expression, was fully justified by the character of the record. 
 But whether it was or was not, they were not words spoken in a 
 fit of choler or anger or resentment. They were words that he 
 had carefully written out, giving his reasons, giving the facts* 
 substantiating them by reference to the record, and then he 
 waited and asked these gentlemen, before he imposed any sen- 
 tence, what they had to say. What did they do then? My friend 
 has gone so out of the record that I may be pardoned when I 
 allude to the fact that before -ever Judge Wright could pronounce 
 his sentence they announced that they would not pay any fine, that 
 they wanted to go to jail and would go to jail in order that they 
 might be made martyrs. Did they say, “We thought we were 
 doing right; we are very sorry, we will now obey the decree 
 of the court, we regret what has been done”? There was not 
 a word of apology for the violation of the injunction nor for the 
 disrespect to this court. 
 
 I think, therefore, for this court to reverse this judgment, 
 would be to “crucify justice afresh, and put it to an open shame.” 
 
 ARGUMENT OF JACKSON H. RALSTON, ESQ. 
 
 The first question to which it seems necessary to address myself 
 briefly will be the question of the jurisdiction of this court under 
 this record. 
 
 It is strenuously urged that this court should not pass upon 
 this case, for the want of a bill of exceptions. The first sugges- 
 tion, for the want of a writ of error, seems to have been aban- 
 doned. Now, our own theory of the case, considering it as a 
 matter of adjudicated law, is sufficiently illustrated by Bessette 
 vs. Conkey Company, which has been referred to by Mr. Dar- 
 lington, and I will read a few lines from the opinion of Mr. 
 Justice Brewer. Commenting upon the two classes of injunctions 
 he says : 
 
 “Doubtless the distinction referred to in .this quotation is the 
 cause in the difference in the rulings of various state courts as to 
 the right of review. Manifestly if one inside a court room dis- 
 turbs the order of proceedings, or is guilty of personal miscon- 
 duct in the presence of the court, such action may properly be 
 regarded as a contempt of court, yet it is not misconduct 
 in which any individual suitor is specially interested. It is 
 
 131 
 
more like an ordinary crime which affects the public at large, 
 and the criminal nature of the act is the dominant feature. On 
 the other hand, if in the progress of a suit a party is ordered 
 by the court to abstain from some action which is injurious to 
 the rights of the adverse party — ” 
 
 Which is the case here, and this is the language which seems 
 to us to become appropriate to the present case — 
 
 “and he disobeys that order, he may also be guilty of contempt. 
 But the personal injury to the party in whose favor the court 
 has made the order gives a remedial character to the contempt 
 proceeding. The punishment is to secure to the adverse party 
 the right which the court has awarded to him. He is the one 
 primarily interested, and if it should turn out on appeal from 
 the final decree of the case, that the order was erroneous, there 
 would in most cases be the great propriety of setting aside the 
 judgment which was imposed for disobeying an order to which 
 the adverse party was not entitled.” 
 
 He states that it is often difficult to distinguish between the 
 two classes ; and passing the paragraph in which he elaborates 
 that idea, and which is not for the moment necessary, he says : 
 
 “In the case at bar the controversy between the parties to 
 the suit was settled by final decree, and from that decree, so far 
 as appears, no appeal was taken. An appeal from it would not 
 have brought up the proceeding against the petitioner, for he 
 was not a party to the suit.” 
 
 Now that, if your Honors please, was the situation in the 
 Bissette case and in the Christiansen case, decided a little later 
 in this same volume, the condition of affairs in case in 162 Fed. 
 which has been cited, and in every one of the cases upon the 
 brief put in here by Mr. Davenport except one, and that under- 
 takes to apply the law as to writs of error between parties who 
 are not parties to the suit, to a case where the only persons 
 restrained are the parties themselves to the action, and it does 
 it with mere reference to those cases, which do not decide what 
 that case quotes them as deciding, and with a complete ignoring 
 of the qualifying words which I have read, and- which are care- 
 fully repeated in the subsequent decision in this volume, by Mr. 
 Chief Justice Fuller and repeated in other decisions. Now, I 
 think I speak with exact correctness when I say that is the only 
 case which has been decided where a writ of error was employed 
 or allowed when the person offending was a party to the suit 
 itself. That was a case decided in the United States Circuit Court 
 of Appeals in another jurisdiction. Now the relative condition 
 of affairs as between other jurisdictions where this question may 
 have arisen and here is very decisive. 
 
 Mr. Davenport: In re Christiansen completes Bissette vs. 
 Conkey. 
 
 132 
 
Mr. Ralston: I beg your pardon upon that point. In re 
 Christiansen draws the distinction and points out that in two or 
 three previous decisions of the United States courts, in the Hayes 
 and Fisher case, in which the City of New Orleans was involved, 
 and in other cases the distinction was made. In a case the name 
 of which slips my mind for the moment — in one of those cases 
 at least, the matter came up on appeal to the Supreme Court 
 of the United States, where only the parties involved in the 
 original suit were the parties involved in the contempt proceeding, 
 and the court there held that the judgment of the court was 
 remedial, being between the parties, and entertained an appeal, 
 and reversed the principal decision, and as a matter of fact the 
 decision in contempt fell at the same time. 
 
 Now, there I say is the distinction which is pointed out, and 
 the only possible line of difference there can be, and the only 
 possible criticism that can be made upon the suggestion I am 
 now making to the court is that in several of those cases the 
 court adjudicated a fine in favor of the plaintiff in the case. 
 But the fine was not the determinative feature of the case. It 
 did not govern it in its principle, as is plainly manifested in the 
 Bessette case. It makes no difference whether it be fine or 
 imprisonment, so long as it is imposed for the purpose of 
 rendering effective the relief which the court has sought to give, 
 and which it appears or which it is claimed has been ineffectually 
 done. As I say, if in the course of the suit the party is ordered 
 to abstain from some action which is injurious to the rights of 
 the other party, and he disobeys that order, he may be guilty 
 of contempt; but the personal injury to the party in whose 
 favor the court has made the order gives the remedial character. 
 It is not the particular order or sentence, whether it be imprison- 
 ment or a fine to the benefit of the party injured, but the remedial 
 character to the party affected. The situation is not as it was in 
 the Bessette case and as it was in other cases of parties who have 
 come in and interfered in the action, with notice of the existence 
 of an injunction. There was a direct attack upon the power of 
 the court, and there the relief was exclusively by writ of error. 
 
 Now, if your Honors please, the matter is not a new question 
 in practice before this court. The cases have come up both ways 
 , before this court; and where there was a contempt committed 
 in the presence of the court, against the immediate authority of 
 the court, in which an outsider had no interest, in those cases 
 it has come up in two ways, either by writ of error, I think in 
 one case in the Police Court, or on bill of exceptions, or by 
 habeas corpus. But it has come up twice at least in equity. 
 In one of those cases I myself was concerned as counsel in the 
 court below, a case which two of your Honors at least will 
 recall, having been upon the Bench at the time. No, I believe 
 only Judge Shepard was on the Bench at the time. That was 
 the case of Drew vs. Hobart. That was a case of a church 
 fight, between factions in a church. An injunction had been 
 
 133 
 
granted, as it happened, on behalf of my client, granted in fact 
 before I was in the case. The injunction was granted and after- 
 ward served upon the parties, and subsequently they were in 
 contempt, and so held by Mr. Justice Stafford. A hearing was 
 had before him. A number of witnesses were heard, their testi- 
 mony taken down; no bill of exceptions, nothing of the kind, 
 but taken down as an ordinary equity record. That case came 
 before this court on appeal. I was out of this country at the 
 time it came before the court, and my clients were not repre- 
 sented. In fact, at that time they had no further interest prac- 
 tically in the case. This court considered the question thoroughly, 
 found that the order had been inadvertently issued below, that 
 a bond had not been filed before the issuance of the preliminary 
 order, and that the order therefore had to be set aside, and 
 they were discharged from their contempt; because the court 
 below, as this court held, had no jurisdiction to issue the order 
 in the premises. 
 
 The other case is that of Lane vs. Lane, where a man was 
 committed to jail for contempt, in 27 D. C., for failing to obey 
 an order declaring him in arrears in alimony. A rule to show 
 cause had been served, and he submitted affidavits. The case 
 was considered upon affidavits, decided against him, he was sent 
 to jail, an appeal was taken to this court, and the action of the 
 court below was affirmed. So that we have two practical illus- 
 trations of practical precedents in this court. 
 
 The Chief Justice: This question was not raised in those 
 cases. 
 
 Mr. Ralston: No; no suggestion was raised that this court 
 did not have a perfect right to act under such circumstances. 
 
 Now the jurisdiction governing matters of appeals in this Dis- 
 trict is strikingly different from the legislation governing appeals 
 to the various circuit courts of appeal throughout the United 
 States. The language here is that any final order, judgment or de- 
 cree may be appealed from to this court. The language is simple 
 and direct. An appeal is allowable from any final order, and as we 
 know from certain interlocutory orders. Now, when we turn to 
 the circuit courts of appeal throughout the United States we find 
 the legislation is entirely different. I speak from memory, but 
 I think with practical accuracy, and we find there that the lan- 
 guage is substantially this, that the final orders of the District 
 courts my be reviewed by appeal, writ of error, or otherwise, 
 making a clear, clean distinction between various classes, whereas 
 here, as I say, everything goes up simply on appeal. I will call 
 your Honors’ attention to Section 226 of the District Code, which 
 I know you are thoroughly familiar with : 
 
 “Any party aggrieved by any final order, judgment, or decree 
 of the Supreme Court of the District of Columbia, or of any 
 justice thereof, including any final order or judgment in case 
 
 134 
 
heard on appeal from a justice of the peace, may appeal 
 therefrom to the said court of appeals ; and upon such appeal 
 the court of appeals shall review such order, judgment or de- 
 cree, and affirm, reverse, or modify the same as shall be just, ex- 
 cept as provided in the following sections.” 
 
 And one of the following sections refers to a different * form 
 of bringing questions before this court pertaining to the police 
 court. 
 
 Now, if your Honors please, before commencing a more elab- 
 orate discussion of this case, I want to invite your Honors’ 
 attention to what, even laying aside any question of evidence 
 at all, is directly before this court on Judge Wright’s order. 
 
 I may say that this case presents in a way an anomalous situa- 
 tion, and to all intents and purposes there are two sets of find- 
 ings of facts. There is an opinion which contains almost 
 throughout its entire extent what may be called findings of 
 fact, if you choose to give them that name. There are either 
 two sets of findings of fact, or there are none; but at different 
 intervals throughout the opinion the court finds so and so; and 
 then we come to the decree itself. On page 638 of the record, 
 after the recitals, “Now come the parties, etc.,” the court finds; 
 “It now finds the fact to be,” etc. And then it recites, to the 
 extent of a page, a large number of disconnected facts. But 
 in the latter part of the page (and it becomes necessary care- 
 fully to consider this, to see the exact bearing of this decree) the 
 court further finds as a fact that the respondents, Samuel Gom- 
 pers, Frank Morrison and John Mitchell, are guilty of the sev- 
 eral acts charged in paragraphs 17 and 26 of the complainant’s 
 petition. 
 
 Now, they are all found guilty of the several acts charged 
 in paragraphs 17 and 26. Turn to paragraph 26, if you will for 
 a moment, and you will find this situation : 
 
 “Though the said Samuel Gompers, Frank Morrison, John 
 Mitchell, and the other defendants in the original bill, their and 
 each of their agents, servants, attorneys, confederates — ” I 
 see that I am in it; I had forgotten that fact. — 
 
 “are, by the order of this court of December 18, 1907, re- 
 strained and enjoined pending litigation — ” 
 
 And then it recites the orders quite at length, and at the foot 
 of the page says : 
 
 “Yet, by the acts, means and subterfuges aforesaid, the said 
 Samuel Gompers, Frank Morrison and John Mitchell have de- 
 signed and sought to continue in force and effect, and have 
 continued in force and effect, in wilful disregard, violation, dis- 
 obedience and contempt of the aforesaid order and decree of 
 this court, the boycott — ” 
 
 And so forth. 
 
 Mr. Davenport : The boycott and conspiracy. 
 
 135 
 
Mr. Ralston : Oh, yes — “and the conspiracy recited in the 
 bill to destroy its business, which they and the other defendants 
 have been and are, by the said order and decree, restrained and 
 enjoined from continuing.” 
 
 If your Honors please, therefore, we have in that one para- 
 graph a finding by the court that all the statements set out in the 
 bill are found by the court to be facts, because there are no acts, 
 means, devices and subterfuges, except in everything that goes 
 before. It is not in this paragraph, because there are none set 
 up in paragraph 26 . 
 
 So that while we have distinctly argued in our brief errors of 
 which we think Judge Wright has been guilty in finding facts 
 antecedent to the injunction being signed, antecedent to the in- 
 junction becoming effective, and after the injunction became ef- 
 fective, while we have found our objections to those, referring 
 specifically to the different pages on which those things have 
 been separately found, yet taking a word that came very much 
 in vogue a year or so ago, they have been found en bloc in al- 
 most the last line of this particular part of his opinion, so that 
 we have the whole bill of complaint tumbled into the final order. 
 That, therefore, includes in the part of the findings of the Court 
 the various actions, which were committed or said to have been 
 committed by the various parties to this suit, long before, even 
 years before there ever was any injunction at all, and that is 
 found as a fact, and that all these things were done for the pur- 
 pose of carrying on this conspiracy, acts done years before there 
 was any conspiracy found by the court as being done for the 
 purpose of carrying on the conspiracy, and that is made a basis 
 and a foundation. 
 
 Now I think it is important (I may as well take it up at this 
 point as at any) that the court should clearly understand the 
 exact relations between the parties to this case, and those to 
 whom the parties in this case may be said to represent in a 
 fashion. I do not think it has been brought out fully yet. 
 
 This case has been treated, and the injury and trouble that 
 have fallen upon Mr. Van Cleave, have been treated as if they 
 were the result of some action to which Mr. Gompers, Mr. Mor- 
 rison and Mr. Mitchell were, if not the only parties, the super- 
 vising and directing parties, and it is on that theory that it is 
 sought to hold these gentlemen here for contempt, and sentence 
 them to jail. Now, there never was a more mistaken idea of a 
 fact than that, and an examination of the record will show it. 
 
 It will be found from the record that there is in the United 
 States an organization known as the National Association of 
 Manufacturers, that it claims an enormous membership scattered 
 all over the country, that its general purposes are antagonistic to 
 trade organization; that the chief head of that organization is 
 Mr. J. W. Van Cleave, the President of the petitioner here, his 
 corporation, if I am correct, being a member of the organization. 
 I am not sure whether the record discloses that or not, so per- 
 haps I ought not to say it. 
 
 136 
 
There is another organization in this country the purpose of 
 which is largely devoted to active antagonism in every shape and 
 manner to trade unions. That likewise is an organization for 
 the most part of manufacturers, of business men, and it is known 
 as the Citizens’ Industrial Alliance. I think that is the exact 
 title. That also appears from the record. The president of that 
 organization is Mr. Post, the manufacturer of Postum Cereal. 
 The vice-president of that organization is Mr. J. W. Van Cleave. 
 Mr. Van Cleave has been the president of the first-named organ- 
 ization for two or three years, I do not know the exact time, and 
 vice-president of the other organization for some considerable 
 length of time. Now, the relations between those bodies, of 
 which he is respectively president and vice-president, and the 
 trade organizations throughout this country have for years been 
 hostile and antagonistic. So much was this the truth that some 
 years ago, perhaps two years ago, Mr. Van Cleave recommended 
 to his associate manufacturers the advisability of raising a fund 
 of $500,000 a year to run over several years, for the purpose, as 
 he termed it, of education, but for purposes which were well 
 understood of attacks upon and antagonism to trade organiza- 
 tions. Presumably that money was raised. Certainly large 
 amounts of money have, as appears from the record, been spent 
 by somebody in certain directions which I will explain, and they 
 are not accounted for. It is in the testimony of Mr. Mitchell 
 and in the testimony of Mr. Gompers that sometimes for long 
 periods of time they have known themselves to be followed, 
 wherever they went, by detectives. Somebody had a purpose in 
 doing that. Whether it was the organization of which Mr. Van 
 Cleave is the head or not, I do not know. There is the fact. 
 Now, as appears in the record, that fact was widely known, 
 known all over this country, known to members of trade organ- 
 izations probably in every city in the Union. And I may say 
 that Mr. Beck has quoted several times to your Honors with ap- 
 parent relish a reference to Mr. Gompers as the master of a 
 million minds. I am justified in referring to that. The author 
 of that expression was a man who, it appears on the face of the 
 record, came to Mr. Gompers with credentials purporting at least 
 to come from a newspaper in New York City, of which Mr. 
 Van Cleave is the principal editor, and made to Mr. Gompers a 
 corrupt proposition within the past two years, involving his de- 
 sertion of the labor movement. That expression “Master of a 
 million minds,” is not the coinage of Mr. Gompers, not the coin- 
 age of Mr. Beck, but of that man who to-day is a fugitive from 
 justice in New York City, a man who is charged with having 
 forged the name of ex-President Cleveland to a letter last year. 
 
 Now, those facts are known throughout the length of the 
 country. Now, with all the evidence of that, and much more 
 that I might detail from this record, what is the use of Mr. 
 Beck or Mr. Darlington or Mr. Davenport arising before your 
 Honors and undertaking to charge the destruction of business 
 on these three gentlemen, and undertaking to charge them with 
 
 137 
 
the continuance of a boycott. The gentleman who has declared 
 war against them has himself inaugurated a corresponding feel- 
 ing of determination on the part of members of labor organiza- 
 tions, that they would have nothing to do with him. And so far 
 as he carried his own hostility to organizations, that he has boy- 
 cotted them and they know that fact. I read from the record 
 on page 103. One of his foremen is examined : 
 
 “Q. Are you a member of any organized trade union? 
 
 “ A . No, sir; I am not. 
 
 “Q. Have you ever been? 
 
 “A. I never have. 
 
 “Q. How about the remaining foremen in the plaintiff’s em- 
 ploy ? Do they belong to any organized — 
 
 “A. (interrupting). Not that I know of. 
 
 “Q. (continuing). Union? 
 
 “A. None. 
 
 “Q. To your knowledge are any members of organized trade 
 unions employed by the plaintiff? 
 
 “A. I don’t know of any. 
 
 “Q. I suppose you mean, except the iron-molders ? 
 
 “A. Well, I don’t know anything about the iron-molders, or 
 the men in that department. I know nothing about that work 
 at all. 
 
 “Q. What departments are you acquainted with? 
 
 “A. I am acquainted with the polishers’ department, and the 
 plating department. 
 
 “Q. What others ? 
 
 “A. That is all. That is all I have anything to do with. 
 
 “Q. Are any people employed in your department known as 
 ‘foundry employees’; that is, foundry laborers, in other words? 
 
 “A. No sir. No ; I haven’t anything like that. Metal polish- 
 ers, buffers and platers, that is all I have. 
 
 “Q. At the present time there are no members of organized 
 labor employed within your knowledge at that establishment? 
 
 “A. No; not within my knowledge, no. 
 
 “Q. If any one presented himself, would you employ him? 
 
 “A. At the present time ; no, sir. 
 
 “Q. You would not? 
 
 “A. No, sir; I would not. 
 
 “Q. By whose instructions would that be? 
 
 “A. That would be according to the instructions I receive 
 from headquarters at the present time.” 
 
 And what was headquarters? Mr. J. W. Van Cleave. It 
 could be nobody else. 
 
 “O. When were these instructions given? 
 
 “A. They were given after that — well, I don't know the 
 
exact date. Let me see — it was along after the strike was set- 
 tled — I can’t state the month. 
 
 “Q. Well, about? 
 
 “A. Let me see. Well, it was toward the latter part of the 
 year. 
 
 “Q. Which year; 1906? 
 
 “A. Of 1906; yes, sir.” 
 
 Now, there is the condition, a condition which, as I say, re- 
 peating myself, was known all over the United States. Now, 
 what have Gompers, Morrison and Mitchell done, and what has 
 been done, and what can properly be attributed to them as the 
 result of their action since the injunction order went into ef- 
 fect? I ought perhaps to say this, while I do not want to speak 
 disrespectfully of my friends on the other side, but it does seem 
 to me like a wilful and determined perversion of the words of 
 Mr. Gompers, when they stand up here and tell you that Mr. 
 Gompers in advance announced his intention of disobeying the 
 orders of this or of any other court. He did nothing of the 
 kind. There is not a word in the record to sustain that, nor did 
 Mr. Mitchell. But what he said was simply and solely this : that 
 when the orders of a court go beyond, interfere with, prevent 
 the exercise of my rights as an American citizen, then I will not 
 be bound by them. And that is what this court has said, if I in- 
 terpret its decision correctly, that is what each one of the jus- 
 tices here has said, in effect, that a decision going beyond the 
 powers of a court, taking away from a man his constitutional 
 rights, was no decision, was no order; and the thing that Mr. 
 Gompers has said he would not obey is no order at all. 
 
 Now, the injunction became operative on the 23d of December. 
 At that time there had been sent out several thousand (perhaps 
 four or five thousand, I do not know the exact number) copies 
 of the Federationist. It is idle even as an original proposition, 
 to attribute any considerable amount of loss incident, if there 
 were any at all from this boycott, to the circulation of these 
 copies, which contain nothing more than the placing of this name 
 in an obscure place, as it had been for three or four months 
 previously. Now, it was the desire of Mr. Gompers, even when 
 he felt that the order of the court infringed upon his consti- 
 tutional right, and even where it did infringe upon his consti- 
 tutional right, it was his desire to comply with the order of the 
 court, and from that day to this the name of the Bucks Stove 
 & Range Company has never appeared in any copy of the Ameri- 
 can Federationist in any unfair list, the most emphatic recogni- 
 tion and submission to the power of this court that could pos- 
 sibly have been given. 
 
 But it is said that about that time there were circulated copies 
 of the proceedings of the convention. I am sorry I have not here 
 (I intended to bring it with me; it is among the papers below) 
 a copy of the proceedings of that convention, embracing prob- 
 
 139 
 
ably four or five hundred pages, quite closely set matter, a re- 
 port of everything that happened, perhaps hundreds of resolu- 
 tions contained within its pages, and somewhere in those pages 
 there is a report of a certain resolution. Now, it became the 
 duty of Mr. Morrison as the Secretary of the American Federa- 
 tion of Labor, to see to the circulation, in the quarters where 
 it belongs, where it customarily went, of those copies. He pre- 
 pared the copy which was put in the printer’s hands, and was 
 perhaps printed before the order of the court was even signed, 
 much less before it became effective. 
 
 Mr. Justice Robb: That was all done in due course? 
 
 Mr. Ralston : That was all done in due course ; and when 
 Mr. Morrison’s attention was called to the fact that it contained 
 a copy of a resolution which was passed in November, 1907, af- 
 fecting the Bucks Stove & Range Company, he said, “I never 
 gave that a thought.” Nor did he. It was there. He might have 
 thought of it. It might have occurred to him. It is possible he 
 might have changed it and prevented that going out, but he 
 simply never gave that a thought. 
 
 Mr. Justice Robb: That was for purposes of record? 
 
 Mr. Ralston : For purposes of record, and scattered among 
 the trade unions, to which the reports of that convention went. 
 
 Mr. Davenport : Seventy-five or a hundred copies were dis- 
 tributed and sold. 
 
 Mr. Ralston : I do not think there is any evidence that one 
 copy was sold. I think the evidence is that not one copy was 
 sold. For why on earth, except it be for purposes of curiosity 
 or for keeping up a record, anybody would buy it, I can not 
 see, because it certainly is very dry reading, from what I Rave 
 seen of it. Nor was it circulated — I think your Honors must 
 come to that conclusion, that it was not circulated for the purpose 
 of carrying on any boycott, and the only circulation it had was 
 incidental. 
 
 Now, it is said some copies of the Federationist were sold, 
 containing this boycott resolution. It is probable that some were, 
 a small number. Mr. Davenport says a hundred. My recollec- 
 tion of the record is thirty-seven, but it does not matter par- 
 ticularly, either way. They were not sold under the orders of 
 Mr. Gompers, or Mr. Mitchell or Mr. Morrison. The fact is, 
 and it has been absolutely ignored in all the discussion by Mr. 
 Beck and Mr. Darlington, the fact is that immediately after the 
 reception of the notice of the order becoming effective, Mr. 
 Gompers called together all the people in his employ and told 
 them of that fact, and that they must be careful not to violate 
 the order, and if there was any question about it to come to him. 
 He did not want that order violated. He testifies that from my 
 office he received a telephone message about 3 :20 o’clock in the 
 
 140 
 
afternoon of the day the signing took place. He was notified 
 of course at once upon our reception of the matter, and imme- 
 diately after that he called together the employees, and gave them 
 that instruction. Now, that is what the record shows. 
 
 Mr. Morrison’s entire connection with any matter sugges- 
 tive of a boycott, suggestive of a violation of the orders of this 
 court up to this point, are entirely negatived. Now, suppose 
 there were, and there seem to have been, some copies sold. Do 
 your Honors believe for a moment that those copies were sold 
 for the purpose of carrying on a boycott? To me it is incon- 
 ceivable that a copy of the Federationist containing as I say, in 
 an obscure place, three lines about the Bucks Stove & Range 
 Company should be sold over its counters for the purpose of 
 carrying on a boycott. While we can not any of us claim any 
 special experience in that line, I think from observation and 
 from what we have heard of the subject matter, we can very 
 readily perceive very much more effective ways of doing that. 
 Now, up to this time Mr. Mitchell has not been brought into this 
 case, up to this point of the discussion, in point of time. Mr. 
 Mitchell knew of the existence of the order. He is charged in 
 the first place with being the editor and responsible for a publi- 
 cation which took place about the 8th or 9th of January, in the 
 United Mine Workers’ Journal. 
 
 Mr. Justice Robb : That would not seem to be very serious. 
 
 Mr. Ralston : He had absolutely no connection with it, al- 
 though he is found to have had. It is set out in full in the peti- 
 tion that he was the editor, and that he did so-and-so about it, 
 and Mr. Justice Wright finds that to be the fact. 
 
 Mr. Justice Robb: The most serious charge against Mr. 
 Mitchell, however, is that resolution. 
 
 Mr, Ralston : Yes. Now, your Honors will understand that 
 you ought to picture this situation in its entirety. Mr. Mitchell 
 has denied all recollection of the matter. He has denied more 
 than that. He has denied that he had anything to do with it 
 in any shape or knew anything about it. I think that is his lan- 
 guage, if I remember it correctly. I do not want to take the time 
 to refer to it. He was guiltless so far as the preparation or 
 introduction or passing of that resolution was concerned, save 
 that he was in the chair. There are several witnesses who testify 
 that he was in the chair. There is no witness who testified that 
 he paid any particular attention to that resolution, or that he 
 had his attention directed to the particular resolution at the time 
 of its passing. One or two witnesses do say that he was near 
 enough to the Secretary who was reading it to have heard him, 
 ten or fifteen feet away, a short distance. 
 
 The Chief Justice: Does he not say in his answer that no 
 doubt he did hear it, but that he does not recollect it; but no 
 doubt he did hear it. 
 
 Mr. Ralston : I think he uses some such expression. 
 
 141 
 
Mr. Justice Robb: He was a member of the Executive Coun- 
 cil ? 
 
 Mr. Ralston : He was a member of the Executive Council. 
 
 Mr. Justice Robb: And he had knowledge of the controversy 
 between the National Association and the Bucks Stove people? 
 
 Mr. Ralston : Yes ; he had knowledge. Now, perhaps I can 
 find exactly what he says. He had been ill immediately preced- 
 ing that time and unfit for business. I think he was ill at the 
 time the order was passed. That is my recollection of the record. 
 “He admits — ”• 
 
 Mr. Davenport: Are you reading from his answer? 
 
 Mr. Ralston: Yes; page 31. 
 
 Mr. Davenport : His Honor is referring from what he said 
 on my cross-examination. 
 
 Mr. Ralston: I will come to that. “He admits that on Jan- 
 uary 25, 1908, he was in the chair as presiding officer of the 
 19th annual convention of the United Mine Workers of America, 
 held at Indianapolis, Indiana. From reference to the minutes of 
 the proceedings had at that time, he finds that the resolution 
 referred to in said paragraph was submitted and carried by the 
 convention. That having no recollection whatever as to the mat- 
 ter, he can neither admit nor deny that he was presiding at the 
 time said resolution was submitted.” 
 
 He found afterward that he was in the chair, but it was 
 only by the record that he knew of it. 
 
 “That he took no active part whatever in causing the matter 
 of the boycott of the petitioner to be submitted to the convention, 
 and until the matter was brought to his attention by the filing 
 of the petition herein, did not know that the subject had been 
 acted upon by the convention referred to.” 
 
 Now, there is the testimony of Mr. Stroud, referred to in 
 connection with some incident, and that has been commented 
 upon. The direct testimony of Mr. Stroud has been commented 
 upon quite extensively by Mr. Gompers. The cross-examination 
 was not commented on; and there he says in effect, as I remem- 
 ber, that under the circumstances of that convention, that under 
 the rush Mr. Mitchell was under, the resolution might very well 
 have been submitted to the convention, without his having a real 
 knowledge of its contents ; that he was constantly being spoken 
 to, being called away, had to keep the general run of things. 
 Your Honors have to picture a convention of about a thousand 
 men, with all the crowd and confusion that would exist there, 
 and all the burdens that would fall upon the presiding officer. 
 He says, on page 301 of this record : 
 
 “I can not recall anything of the introduction of or passing of 
 the resolution. By referring to the transcript of the record I 
 see I was in the chair when the resolution was adopted. 
 
 “Q. But you have no independent recollection in regard to it ? 
 
 “A. I have not. 
 
 142 
 
“Q. What was the mode of procedure pursued by you in a 
 matter of that kind when the committee recommended concur- 
 rence in the resolution? This says that the recommendation of 
 the committee was concurred in, the vote being unanimous. 
 
 “A. The proceeding was simply the ordinary practice of the 
 chairman. A statement was made that the motion was received 
 that the report of the committee be concurred in and remarks 
 were called for. If there were none the motion was placed be- 
 fore the convention or declared carried or lost, as the case might 
 be. 
 
 “Q. And how was the fact that the vote was unanimous as- 
 certained ; was it declared by the chair ? 
 
 “A. Frequently, if there were no objections, the motion is 
 declared adopted. At other times the actual vote is taken. A 
 call is made for those in favor of the motion to say ‘aye’ and 
 those opposed to say ‘nay.’ I do not recall in this instance, as 
 I have no recollection of it, whether that was declared to be 
 carried in the absence of opposition, or whether an actual vote 
 was taken on it. I might say here that it is probable that in that 
 instance there was no vote taken upon the subject.” 
 
 That, I think, is substantially all of it. 
 
 Mr. Davenport: No; he is asked to read the record — 
 
 Mr. Ralston : I must be permitted to make my own argument 
 in my own way, my time is very limited. 
 
 The Chief Justice : Do not interrupt counsel. The time is 
 short. 
 
 Mr. Ralston : I can not read it, but I shall be glad to have the 
 court read all that Mr. Mitchell has said. I am favored now with 
 a copy of this report of the American Federation of Labor, con- 
 taining 356 double column, small type, pages. 
 
 The Chief Justice: That is the Norfolk convention? 
 
 Mr. Ralston : That is the Norfolk convention. I have stated 
 all with regard to Mr. Mitchell, except that he took part in the 
 “urgent appeal.” Much stress is laid upon that, and is laid upon 
 the editorial which accompanied it. The whole editorial is a 
 most interesting one, and to my mind a most able one. It is con- 
 tained in the record in the old case, I think on page 474, if I 
 remember correctly. I am not going to trouble your Honors with 
 it. It seems to me like a fair, temperate, and under the circum- 
 stances if you will, a courageous presentation of the views of a 
 man who dared to criticize an action which he believed to be a 
 wrong, and unjustified by the Constitution of the United States. 
 That editorial as I say accompanied this urgent appeal. The pur- 
 pose of the urgent appeal was to raise funds to enable these de- 
 fendants and their associates to further protect themselves by 
 an appeal to this honorable court. In its course it stated, as it 
 had to state, that the court below had adjudicated against them, 
 that the court below had found wrongfully, as they believed it. 
 that they had been guilty of a boycott, and that they were entitled, 
 they believed, to relief from that, and they asked in the name of 
 
 143 
 
labor, in the name of their Americanship, for funds. When 
 they did that, if your Honors please, they violated the terms of 
 that injunction, and I am here to admit it, and I do not hesitate 
 to admit it. They violated, grossly violated, if you will, if such 
 an expression can be used in that connection, the terms of that 
 injunction. That injunction forbade them to say or to write 
 that the products of the Bucks Stove & Range Company were 
 boycotted, or ever had been boycotted, and they wrote it in that 
 urgent appeal, and they had to do it to get their funds, and 
 they violated the order of the court below when they did it, and 
 they violated the terms of the order of the court below. But 
 what did that court below do? That court below in its order, 
 broad as it was literally interpreted, precluded them from taking 
 an appeal. Not only might they not appeal for funds in order 
 to help them to take an appeal, because in so doing they had to 
 say something, but they could not even take an appeal under the 
 terms of that order literally applied ; because what is the result 
 of an appeal? The clerk will have to write out these things at 
 their instigation, the printer will have to find out that they have 
 been guilty of contempt, and that the Bucks Stove & Range Com- 
 pany have been boycotted; and your Honors finally had to learn, 
 against the orders of the court below, that the boycott existed. I 
 say that is a literal interpretation of that order below, and I re- 
 peat, as I had occasion to say in this courtroom once before, 
 that when I prepared my brief, when I came before this court 
 to argue, I was in contempt of the order of the court below. 
 Now, an order which is so drawn, an order which will deprive a 
 man of his primary rights, his right of self-defense in a 
 court of justice, his right to get the means for a defense, is an 
 order which must be void from the beginning and all the way 
 through. 
 
 Now, I admit that violation in that sense and in that respect 
 of the order of the court below ; not for the purpose of further- 
 ing a boycott, not with the idea that a boycott would be furthered, 
 but in self-defense. 
 
 Now, passing on rather hurriedly as I must, what are the next 
 acts charged against these petitioners in the way of a boycott? 
 Mr. Gompers has been charged with making speeches, which I 
 am prepared to admit is a serious offense sometimes, particu- 
 larly when they are too long. But he has been charged with mak- 
 ing speeches in the course of which he has used language which 
 his Honor Mr. Justice Robb thought appropriate in his opinion, 
 and properly so. He has said they were not compelled, and they 
 could not be compelled, to buy the products of the Bucks Stove 
 & Range Company. Is that a boycott? Does that suggest a 
 boycott? I submit not. The decisions of this court, the decision 
 of this court in the last case, shows as it seems to me with ab- 
 solute clearness that any man and any set of men apparently 
 had a right to determine for themselves that they would not 
 buy the product of a particular man or deal with a particular man, 
 
 144 
 
but that it was when they went beyond that and used threats 
 or force, and brought in other people and said, “Unless you 
 cease your dealings with that man we will punish you’’ — until 
 that element, or some such element as that, was brought into 
 play, there was no boycott. 
 
 Now, if your Honors please, your Honors can not find charge- 
 able in any degree to the appellants here a single act except as 
 I have stated, going beyond the question of a so-called primary 
 boycott. Now, has anything ever been done pursuant to the 
 action — 
 
 Justice Van Orsdel : What do you say to the Mine Workers’ 
 resolution, where they passed a resolution to fine their members 
 five dollars if they purchased a stove of the Bucks Stove & 
 Range Company? Is not that coercion? 
 
 Mr. Ralston : That was coercion in a sense, and in a sense 
 not. Of course the alternative might have existed of leaving 
 the order. Of course that is the only thing that could be at all 
 suggested, and that resolution was not passed at the suggestion 
 of any one of these petitioners. 
 
 Now, it is said that notwithstanding that fact these various 
 speeches of Mr. Gompers were understood in a different sense 
 by his friends and associates from what the words would seem 
 to imply, and there have been inserted into the record here, in 
 a picturesque way, and particularly on pages 614 and 615, an- 
 nouncements contained in various papers throughout the coun- 
 try, some of them later in date than the decrees below, upon 
 which the contempt action is predicated, and which are attributed 
 to these appellants. By what authority are they so attributed? 
 There is not the slightest connection between one of these publica- 
 tions and the appellants here. The appellants have no control 
 over the papers in which they appeared, did not request their 
 publication, and in the only paper over which they had control, 
 such publications did not appear. There is not the slightest asso- 
 ciation with them so far; and if I may use the word, to such a 
 fairly ridiculous extent has this attempt to make a case been 
 carried, that some of these lurid representations are copied from 
 the Cleveland Citizen as evidence against Mr. Gompers. 
 
 Now, the fact sufficiently appears in the record to be this: 
 The Cleveland Citizen is conducted by Mr. Bandlow and Mr. 
 Hayes of Cleveland. They are both socialists, and the organiza- 
 tions to which they belong are largely permeated with the so- 
 cialistic idea. They never published the boycott notice of the 
 Bucks Stove & Range Company until the American Federationist 
 stopped doing it, and they did not do it out of any friendliness 
 to Mr. Gompers. Their attitude is easily understood : “Mr. 
 Gompers in Washington is afraid of the courts. We are not 
 afraid.” It was to cast discredit, not to follow Mr. Gompers, 
 but to cast discredit upon him. 
 
 145 
 
Mr. Darlington: Are you within the record? 
 
 Mr. Ralston : I think entirely within the record ; not in that 
 particular comment, but I think it is a fair inference from the 
 other facts which are in the record, a fair comment. And I say 
 that for this reason : There was a condition of absolute personal 
 enmity between these men, representing a branch of thought 
 with which Mr. Gompers has never had any sympathy, and Mr. 
 Gompers. Mr. Bandlow particularly speaks of the personal an- 
 tagonism that there had been between himself and Mr. Gompers. 
 Mr. Gompers did not regard him as a proper editor, did not 
 believe in his ideas, social and political, and yet Mr. Gompers is 
 here, being charged with responsibility for the acts of Mr. Band- 
 low. 
 
 Now, I go a step further. There are two witnesses here, aside 
 from these newspaper publications I speak of, two witnesses and 
 two only who testify to any overt act committed. Both of these 
 witnesses are employed of the Bucks Stove & Range Company, 
 Mr. Templeton, and I forget the name of the other gentleman. 
 They say that in various places since that time people have re- 
 fused to deal with them or to take their stoves, sometimes say- 
 ing, “Wait until the boycott is over,” and sometimes saying, 
 “Make your adjustment with the Federation of Labor or with 
 the labor organizations in the Federation, and we will be glad 
 to deal with you,” and some saying that a large number of labor- 
 ing men fmd told them that they would not buy those stoves, 
 and so forth. There has been no issuance of circulars, no 
 threats other than the non-intercourse threats such as I speak of, 
 and that proof comes to your Honors by way of hearsay, because 
 no man has come forward to say that because of any action of 
 the respondents, Gompers, Mitchell and Morrison, or of any 
 other member of the great organization, the Federation of Labor, 
 he has ceased to deal with the Bucks Stove & Range Company or 
 that he would not deal with them. That is, as I say, simply the 
 hearsay testimony of the two men upon that point. 
 
 Now, laying aside the question of hearsay, it is probable that 
 since the 23d day of December many men throughout the country 
 have said to dealers in stoves, “We will not buy those stoves.” 
 Mr. Gompers could not change their minds upon that subject 
 if he would, and if he were to attempt it it would involve his ut- 
 ter personal destruction. Why? Remember for the moment 
 what I have had to say of the antagonism existing between the 
 labor organizations throughout this country and Mr. Van Cleave, 
 or between the individual members of labor organizations all 
 through this country and Mr. Van Cleave ; an antagonism which 
 has no reference at all to the strike of thirty or forty stove polish- 
 ers in Missouri, not the slightest reference to that ; an antagonism 
 which antedates it, which has grown more intense because Mr. 
 Van Cleave and his organization (to supplement what I said be- 
 fore) stand against everything which looks in the line of human 
 progress for which labor organizations stand. For instance, as 
 
 146 
 
the testimony shows, his attitude is unfriendly, to say the 
 least, to child labor laws. It is unfriendly to the eight-hour 
 law, it is distinctly unfriendly to employers’ liability laws and 
 matters of that kind, and he boasts (the extended records in this 
 case are not all printed) of his success in antagonizing and fight- 
 ing some of those laws. So we have, from that point of view, 
 ample, abundant, abounding reasons for the feeling all over this 
 country against this man, and consequently against the particular 
 corporation of which he is the shining representative. 
 
 Now, I want to finish my idea. With that feeling permeating 
 two million men, if Mr. Gompers were to come out to-morrow 
 and say in the Federationist, “My friends, we have been all 
 wrong in our antagonism to Mr. Van Cleave; I wish you would 
 buy hiS stoves, do. not continue your refusal of intercourse,” 
 Mr. Gompers would not remain president of that organization 
 any longer than it would take his associates or some other com- 
 petent power to remove him, because they would feel that he by 
 such an attitude had betrayed them to their enemy, their enemy 
 on a score of fields ; their enemy politically, their enemy before 
 Congress, their enemy in the courts, their enemy in industrial 
 disputes. He would not dare on his life to take such a position, 
 and that is the position our friends would have him take, or 
 otherwise go to jail for a year. 
 
 Mr. Justice Van Orsdel : Is there anything in this record to 
 show the purposes of this National Manufacturers’ Association 
 in relation to labor unions? 
 
 Mr. Ralston : Yes, if youi3 Honors please. 
 
 Mr. Justice Van Orsdel : Do not stop to read it. I just wanted 
 to know. 
 
 Mr. Ralston: Yes. It is for the most part in a large number 
 of exhibits. I do not think that in my statement of its objects 
 I have gone one hair’s breadth beyond what has been shown by 
 abundant printed exhibits in this case. I may say I have not even 
 enumerated them all. One illustration I ought to give before 
 I completely leave that part of the case. I stated that Mr. Post 
 was the associate of Mr. Van Cleave in these various matters. 
 Your Honors will recall and I can ask your Honors to recall it 
 because it is in the record, that last summer in the papers in this 
 city as well as in papers all over the United States, there were 
 extensive appeals to prejudice against trade unions, most blatant 
 appeals (I would use the word blatant if I were not speaking oi 
 such respectable gentlemen instead of speaking of trades unions) 
 to prejudice, misrepresentation of facts, and everything of that 
 kind, put forward by this gentleman, Mr. Post. We can only con 
 elude that they were put forward out of this defense fund, be- 
 cause the cost of it must have run into thousands and tens 
 thousand dollars. 
 
 Mr. Justice Van Orsdel : Is there anything in the record that 
 shows an agreement between the members of this Manufacturers 
 Association not to employ trades union men? 
 
 147 
 
Mr. Ralston : Yes. I can not give you all the details of it 
 now, but there is a great deal. 
 
 Mr. Darlington: We differ totally on that. We claim there 
 is not a word of testimony on the subject, and we will leave it 
 to an examination of the record. 
 
 Mr. Ralston : I will be glad to have the court examine the 
 record. I can understand Mr. Darlington making that state- 
 ment, because Mr. Darlington was not present when the record 
 was being made. 
 
 Mr. Darlington : I have read every line of it. 
 
 Mr. Ralston : It would take you about three months to read 
 every line of it. 
 
 Mr. Darlington: I have read every word of it. 
 
 Mr. Ralston: I am glad you have been such a faithful reader 
 of all the exhibits. 
 
 The Court : We usually assume that counsel have read their 
 own record. 
 
 Mr. Ralston: Mr. Darlington was not present when the 
 record was taken, and I affirm — and I think I am incapable of 
 falsifying — 
 
 Mr. Darlington : I do not intimate that for a moment. 
 
 Mr. Ralston : I will appeal to the records, and your Honors 
 will find it in the fullest possible manner set out in connection 
 with the testimony of Mr. Gompers, in connection with the testi- 
 mony of Mr. Hayes, and of Mr. Bandlow, as to the employment 
 of detectives and the attempt to bribe Mr. Gompers, and there 
 are set forth, as I remember, editorials of the Manufacturers' 
 Association, editorials of Mr. Van Cleave, in which he boasts of 
 his various achievements in defeating these various objects to 
 which I have alluded, and all that. It is all in the record. It 
 would make a printed volume, I suppose, about five times as 
 large as what your Honors have before you, if it were all to be 
 printed, and your Honors fortunately are not to be burdened 
 with it. 
 
 Now, if your Honors please, I find that of the time allotted 
 to me, I have but a few minutes remaining, but I ought to de- 
 vote a moment at least to speaking of the character of the de- 
 cree upon which we say contempt can not be predicated. 
 
 Our contention is that a decree violative of a constitutional 
 right is absolutely void. If by way of example a court in this 
 jurisdiction, having before it a question of conspiracy, for which 
 I believe there is no fixed statutory penalty, were to find men 
 guilty of that offense, and were to sentence them to be hanged, is 
 it for a moment to be considered that that sentence would be 
 anything but void? Why? Because it is utterly in the teeth 
 of the constitutional prohibition against cruel and unusual pun- 
 ishment. In this case the court below has stripped these defend 
 ants, or undertaken to strip these defendants, naked of 
 their right to appeal to an upper court. It has un 
 dertaken to strip them of the right to comment, favorably or 
 unfavorably upon its own action, involving as it necessarily would 
 
 148 
 
the announcement or reference to the fact that once there had 
 been a boycott of the Bucks Stove & Range Company. What 
 different view, from the constitutional standpoint, is there be- 
 tween an order of a court which inflicts cruel and unusual pun- 
 ishment, and an order of the court which says, “You shall not 
 exercise your constitutional rights?” Is one provision of the 
 Constitution superior in authority to another? Is one to be fol- 
 lowed and another disregarded? This court has said, as I inter- 
 pret it, by all three of its members, that the decree went too far, 
 and why? Because it violated the constitutional rights of the 
 defendants, took them away from them. But we are told that 
 that is mere error, and it does not matter whether your con- 
 stitutional rights are taken away from you, you must seek your 
 remedy by way of appeal, in the face of the fact, as I said, 
 that there was certainly a technical violation of the order in 
 taking that appeal. Is that position correct? Can it be correct? 
 The question has been so largely argued in this court and so 
 largely argued in many other courts, that there is little that 
 I could presume to add to the discussion. But there is this sug- 
 gestion I want to make: If the executive power, great as it is, 
 independent as it is, a co-ordinate branch of this government — if 
 this great executive power passes an order unconstitutional in 
 its character, what will the courts of justice say of it? They 
 will say it is nugatory, absolutely void. If Congress, independent, 
 a co-ordinate branch of this government, passes a law violative 
 of a constitutional principle, taking away the rights of the citi- 
 zens, and that order is invoked in court, we know what happens 
 to it. We know that the rights of the citizen are protected 
 against the encroachments of Congress as well as against the 
 encroachments of the Executive and Congressional action and 
 Executive action alike fall in the temples of justice. Now, is it 
 to be supposed that there is one power superior, even for one 
 moment superior, to the Constitution, superior to the funda 
 mental laws of the land, and that that power is a nisi prius 
 judge? That what Congress may not do, what the Executive of 
 the United States may not do, a judge hearing the case in the 
 first instance may do with impunity, may with impunity take 
 away the rights of the citizen? It is of no avail to say that 
 there is an appeal. The rights may be lost pending the appeal. 
 They are lost in this case; they would be lost pending the appeal, 
 if the view of my friends upon the other side were correct, and 
 between the time of the entry of the order below and the cor- 
 rection of the gross error contained in it by the court above, 
 the appellants in this case would remain American citizens with 
 their constitutional rights taken away from them, with them- 
 selves robbed of those constitutional rights during that long 
 period. A constitutional right, if I understand it, is an absolute 
 and a sacred thing. It is not a thing which any man, Executive, 
 Congress or courts, has the right to deprive another of for any 
 length of time. 
 
 I am reminded of the case in which I took part many years 
 
 149 
 
ago, twenty years ago now, of Callan vs. Wilson, a case referred 
 to in subsequent cases, a case arising here in the police court. 
 At that time there was no trial by jury in the police court. I 
 asked for trial by jury, knowing it would be refused. It was 
 refused and the man was condemned. I got out a writ of habeas 
 corpus. His release was refused by the Supreme Court in 
 Special Term and General Term, and it went to the Supreme 
 Court of the United States, and the whole argument on the 
 other side was this : This man Callan has lost nothing, because 
 suppose he did not get his jury trial in the court below, he 
 had a right of appeal to the Supreme Court of the District of 
 Columbia sitting as a criminal court, and if he had taken his 
 appeal after his condemnation, why it would have been all right ; 
 so that as long as he had a right to appeal to a court where he 
 would get his constitutional right of trial by jury, he was de- 
 prived of nothing. But the Supreme Court of the United States 
 brushed that aside very quickly, said that the man was entitled to 
 his right of trial by jury in the first instance, and he was not 
 compelled to appeal to get his constitutional right. Now, as it 
 seems to me, your Honors here are in a position exactly anala- 
 gous. We ought not to be compelled to appeal for a constitu- 
 tional right, and that is the position in which our friends would 
 place us. 
 
 If your Honors please, the case is so large a one I feel almost 
 as if I could rival some of my opponents in the length of their 
 arguments, but I have covered it at least as best as I can in the 
 time allotted to me, and I have to thank your Honors for the 
 courtesy of your attention. 
 
 supplementary memorandum for 
 APPELLEE. 
 
 Upon examination of their argument of the legal question 
 principally discussed in the above cause, namely, that of the 
 validity or binding effect until modified or reversed or a judg- 
 ment or decree of a court of general jurisdiction, counsel for the 
 appellee find that they have perhaps failed to state with sufficient 
 clearness the distinction upon which, in their view, that question 
 turns, and which largely if not wholly reconciles any apparent 
 conflict among the decisions cited with respect to it. That dis- 
 tinction is, Where the court below was authorized to hear and 
 determine , i. e., to hear and decide the cause upon its merits, it 
 had jurisdiction , which jurisdiction could not be, and was not, 
 thereafter lost, and its judgment rendered ipso facto void or 
 not binding upon the parties, while remaining unmodified or un- 
 reversed, by the correctness, or incorrectness of the judgment 
 reached by it upon the merits, which it was thus authorized and 
 called upon to decide. In the cases suggested at the argument 
 of judgments of convictions upon information for offenses triable 
 only upon indictment, or of a finding by the appellate tribunal 
 
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against the jurisdictional facts determined by the lower court 
 and upon which finding it proceeded to judgrftent, or of a decree 
 of an equity court enjoining the removal of a municipal officer, 
 and the like, the absence of jurisdiction, and the consequent in- 
 validity ab initio of the judgment or decree rendered, were be- 
 cause of the fact that the lower court was without authority to 
 proceed to a decision upon the merits at all — in some of the 
 cases supposed, because the causes were not properly before the 
 court for determination or decision upon the merits, in others 
 because their subject-matter was not within its jurisdiction. In 
 no case cited upon either side, and we feel entirely warranted in 
 saying in none that can be cited, has it been held that, where a 
 case is properly before a court for decision upon its merits, and 
 the question presented is one upon which it is competent for 
 the court to pass, its decision is without jurisdiction, or in excess 
 of its jurisdiction, because it decides that question, however er- 
 roneously, in one way rather than in the other. Its incorrect de- 
 cision is error, but not want of jurisdiction, and is, therefore, 
 according to all the authorities, binding upon the parties, and to 
 be obeyed by them, until modified or reversed by some competent 
 authority. 
 
 Nor, it is submitted, is there either principle or authority for 
 any distinction in this respect between error as to rights arising 
 under constitutions, or those arising under statutes, or under 
 the common law. A court has no greater jurisdiction to deny a 
 litigant a right conferred by statute, or a right which belongs to 
 him by the common law, than a right under the constitution. To 
 hold that the jurisdiction, i. e., the authority of the court to 
 proceed to a decision at all, as to the existence or non-existence 
 of a right claimed on the one side and denied on the other, how- 
 ever it arises — whether under a constitution, a statute or the com- 
 mon law — depends upon the correctness or incorrectness of the 
 decision made, is wholly to abolish the distinction, recognized by 
 all the authorities, between jurisdiction, on the one hand, and er- 
 ror on the other, and to make the former wholly to depend upon 
 the absence of the latter. It postpones the test of jurisdiction, 
 until after the exercise of it. It reduces it from “the right to 
 hear and determine a cause,” to “the right to hear and determine 
 a cause correctly.” Where the question to be decided, whether of 
 fact or of law, is one upon which the court’s right to hear and 
 determine the merits of the case depends, the question is jurisdic- 
 tional and the correctness of the decision of that question is re- 
 viewable collaterally ; but where, as in the case at bar, the court, 
 beyond the possibility of dispute, had the right to decide upon 
 the merits of the issues raised, the very fact that it had that right 
 determines the question of jurisdiction, which question cannot be 
 made further to depend, at a wholly subsequent stage of the suit, 
 upon any inquiry in an appellate court whether or not there was 
 error in the decision reached. 
 
 This entire question is, of course, an immaterial one if the 
 appellee is right in its contention that the decision of this, court 
 
 151 
 
in the principal case sustains the court below upon the constitu- 
 tional question involved. The only constitutional question pre- 
 sented was, did the constitutional guaranty against laws impairing 
 the freedom of speech and of the press deprive the court below 
 of jurisdiction to enjoin appellants from the unrestricted right 
 of free speech and free press claimed by them? This court held 
 that it did not; that the appellants could be enjoined, without 
 violation of any constitutional right, from employing speech or 
 the press in furtherance of an unlawful purpose, and that the 
 decree below was too broad only in that it enjoined the exercise 
 of that right for purposes which were not illegal. Their consti- 
 tutional contention, that they could not be denied the exercise of 
 free speech and of free press, was denied, and this was the only 
 constitutional question involved. The further decision of this 
 court that certain acts, enjoined below, were not in furtherance 
 of an illegal purpose, and therefore should not have been en- 
 joined, does not involve such a question — and still less a jurisdic- 
 tional question, upon the considerations above stated and under 
 the principles and authorities cited at pp. 29-42 of our original 
 brief. 
 
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