are, how wise we are, how we have kept alive the glimmering spark of liberty through all the ages, and have fanned it into. that fire that lights the world. It is customary to do that, you know, in any meeting of lawyers; and we believe it, for it is true. But it is not necessary to be always alluding to it and then when we are put to the test of the courage of our convictions to run away. I think we ought to meet this question fairly and squarely. Now what is the question? The Congress of the United States has said, and the people of the United States have approved nothing that has been done by Congress more than they have approved that, that certain things are unlawful, and, by way of punishment in an action at law, damages shall be recovered. That is so wise and so prudent a provision of law that great lawyers of this nation and of this Association, who have had committed to their care great public questions and great public interests have withdrawn, and properly withdrawn, from the consideration of great questions because there was an effort to hamper and restrict them in the performance of a high public duty, and the people of this country have approved their wise action in that behalf. Now, conceding that it is unlawful to enter into combinations against the trade and commerce of the country, we were advised, as I am informed by this minority report and I assume it is true until I hear to the contrary, I do not recall the language exactly of the majority report-that the majority of the committee said in 1904: "The committee do not understand that a person so specially injured by unlawful combinations will not be protected by a court of equity if irreparable injury or other conditions to the exercise of equity jurisprudence exist." Mark you, the committee did not say "we do understand." It said "we do not understand.” This Association is not particularly to be influenced or enlightened by what somebody does not understand. It is what they do understand. If it be true that these associations and combinations are unlawful-so much so that in an action at law there is the absolute right to maintain an action for damages and

treble damages-is it not important that there should be no question, even if a majority of the committee lacks understanding on that subject, that a court of equity should have this jurisdiction conferred upon it, and not have to wait until the door is open and the horse stolen and a man's business injured and a suit for treble damages is brought by his trustee in bankruptcy? Let him go into court and say: "Here are these unlawful acts threatened, and I ask this court to lay its hand upon these parties and say to them that they shall not do this unlawful act to my prejudice." That is all that is proposed by this amendmant to the Sherman Act-to give a man not only his action at law for treble damages, punitive damages, penal legislation of the highest character, but to give him direct and speedy redress through the court's laying its hand upon the party that is threatening to violate the law, and saying, stop! I think the members of the American Bar Association ought to resolve that in their judgment it is the duty of Congress to give to the courts the power to say stop.

George Whitelock, of Maryland:

I think it appropriate to remind the Association of the report submitted last year on behalf of the majority of the committee in St. Louis, in order that the position of the majority may be fully understood before final action upon the resolution now pending. The subject was recommitted in 1903 by this resolution:

Resolved, That the part of the report of the Committee on Commercial Law relating to modern commercial combinations be recommitted to the committee for the ensuing year, and that said committee be instructed to report specific remedies in legislative form for any unlawful combinations which may threaten. commercial intercourse."

The matter was thereafter considered by the whole committee, and they had before them the text of the Act of Congress of 1890, which provides in section 7 as follows:

"Any person who shall be injured in his business or property by any other person or corporation, by reason of anything

forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States for the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained and costs of suit, including a reasonable attorney's fee."

This is the pertinent part of the act, and I shall now state the conclusions of the majority of the committee as to the desirability of amending that act by providing additional

remedies:

"Congress has by recent legislation (Act of February 11, 1903) provided what the Supreme Court has held since the last meeting of the Association to be a prompt and efficient procedure on behalf of the government against illegal commercial combinations. It is true that this summary remedy is not available for private litigants. The committee realize the importance of securing to every suitor speedy and certain redress for every wrong, and of providing in every practicable way for the simplification of our remedial procedure. The committee are not satisfied, however, that there is at present any emergency calling for the extension to private actions of this summary remedy provided for suits by the government against illegal combinations. It is, as a rule, the interest of the public rather than the interest of any private individual capable of redress in private action which is threatened by the combinations now adjudged to be unlawful obstructions to commerce. The committee are, therefore, of opinion that until the existing remedies recently provided by law for the protection of commerce against illegal combinations are further invoked, and their efficiency further tested, it is not necessary to propound additional legislation extending the summary procedure. It is now provided by the Anti-Trust Act of Congress (section 7) that a party especially injured in his property or business by unlawful combinations may recover treble damages as well as reasonable attorney's fees.'

I am sorry that the learned gentleman from Indiana is not satisfied with this provision. He can understand, I suppose, that it was rather more polite to state it in that way, in view of the differences of opinion in the committee. I think I may go to the point of saying, with Mr. Judson's concurrence, that

the committee do understand that a party specially injured has a right to invoke the aid of a court of equity if irreparable injury or other conditions to the exercise of equity jurisdic

tion exist.

The report further says:

"If it should be decided that the general jurisdiction of a court of equity, as distinguished from the summary jurisdiction under the act, does not extend to such cases of private litigants suffering special injury from unlawful combinations, the committee would recommend legislation conferring the requisite jurisdiction; but the committee are not satisfied that there is any present necessity for such legislation."

That report was signed by Senator Manderson and Mr. Hensel, both of whom are now in Europe, and by Mr. Judson and myself, and I have stated the contents of the report so that the Association may know what the committee laid before the meeting last year at St. Louis.

Here is the difference between us. Mr. Logan, in his minority report, now advocates an amendment of the Act of Congress so as to confer this special equity jurisdiction in private actions upon the courts of the United States. The majority of the committee are not in favor of such move. There has been no demand for it. We have heard of no injustice under the present state of the law. In the opinion of the majority, there is already a sufficient remedy: First, the remedy by common law actions under the Act of Congress. Secondly, by a resort to a court of equity in the exercise of its general equitable jurisdiction and apart from any congressional legislation. Until there is some demand for the amendment, by reason of a miscarriage of justice, the majority of the committee do not believe that any congressional action is necessary.

Frederick N. Judson, of Missouri:

When lawyers are asked to give their endorsement to an amendment of federal legislation, they ought to understand clearly the scope and exact effect of the proposed amendment.

If the majority of the committee had believed, as stated by the gentleman from Indiana, that under the present law a man who was threatened with irreparable injury to his business by any illegal combination, either of labor or of capital, did not have a right to appeal to a court of equity for redress and protection, we would have heartily joined the minority of the committee in recommending the amendment. Hence, what I say is this: We ought to understand that the Sherman law did not create the right of the citizen to have protection against an illegal combination, but it gave remedies for the enforcement of that right and gave the public certain remedies. If there had been no Sherman law at all, the citizen would have had the right to appeal to the courts of the country for protection against illegal combinations, whether of labor or of capital, and the state and federal courts have exercised and are exercising that jurisdiction irrespective of the Sherman Act. What is the effect of this amendment? Its only practical effect and that gentlemen must clearly understand when they vote upon it will be to give a very large and important addition to the jurisdiction of the federal courts as against the state courts. Why is that? Turn to section 7 of the Sherman Anti-Trust Act, because, I assume in passing, as every lawyer will understand, that unless you can go into the federal court on the ground of a federal question you must have the test of citizenship for your jurisdiction. Let me illustrate. A manufacturing corporation comes to you and says, We want protection against a labor organization which is interrupting our business. You say to the corporation, If the defendants are citizens of the same state, we will go into the state courts. If the parties, however, are residents of different states, then, of course, you have a right to go into the federal court. If you have a federal question raised or a federal right raised in the litigation, and it is decided against you, of course you can appeal by writ of error to the Supreme Court of the United. States. But here is the important point: In that large class cases, and the dockets of the state courts in the country

of