unions are just as important and necessary at the present time, in view of the combinations of capital brought into life by capitalists in the past generation or two, as these capitalistic aggregations are themselves useful in promoting the resources of the country.

Out of the confusion of many authorities, we may draw the well-defined conclusion that whenever and wherever the unions have transcended the natural rights of American citizens, and trespassed upon the rights of other American citizens, the imperial arm of the law has been outstretched to repress these invasions. However, the unions may take comfort in the fact that no less sternly have our courts dealt with unlawful aggregations of capital. Take, for instance, the dissolution of the Northern Securities Company, this Titanic corporation; all of which illustrates that so far there has been no aggregation of power so great, whether of labor or capital, that, whenever its operations became too extensively illegal, has it been able to resist the volcanic eruption of an American sentiment, whether that sentiment be expressed in the courts, in the legislative halls, or at the bar of public opinion.

Corporations have learned that this is not a government of the corporations, by the corporations, or for the corporations, though it cannot be denied that the great corporations have endeavored to fasten their influences upon government through their representatives in high places. The American people have resented this aggression, and the pendulum perhaps has swung too far in retaliation.

Labor organizations must also learn that this is not a government of labor unions, by labor unions, or for labor unions. They, too, have endeavored and are now endeavoring to compel, in many instances by harsh demands, our legislative bodies. to pass laws guaranteeing immunities to their organizations not assured to the citizens of the country at large. American independence will resist and resent any encroachment upon fundamental rights guaranteed to every citizen alike by our Constitution, and it is up to the unions to learn in this respect the same lessons that have been rudely and emphatically taught the aggregations of capital.

APPENDIX L.

REPORT OF THE COMMITTEE ON FEDERAL

LEGISLATION.

The Committee charged with the duty of reporting upon such Federal legislation, proposed or enacted, as may be of interest to the legal profession, and especially such as affects the Federal Judicial System, procedure and practice in the Federal Courts, would respectfully report:

That the tendency in National legislation is distinctly Hamiltonian, not only within the express grants of the Constitution, but sometimes beyond reasonable deductions therefrom. While it was, and may still be considered, the declared policy to confine the jurisdiction of the Federal Courts to matters clearly committed to them by the Act of 1887-1888, defining their jurisdiction, still as Congress continues to legislate on a great variety of subjects, the jurisdiction of these courts must necessarily be enlarged, as litigation therein frequently originates under some claim arising under a Federal statute.

LEGISLATION.

To promote the general welfare by imposing sundry restraints on all persons engaged in interstate commerce seems to have been the object of some of the recent legislation by Congress. In this connection your Committee might mention the Pure Food Law, of June 30, 1906, which was an act to prevent the manufacture, sale or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes; the Safety Apppliance Act, regulating automatic appliances on cars, etc., the Railroad Rate Law, 1906, the Nine Hour Law of March 4, 1907, and the Employer's Liability Act,

of June 11, 1906.

Your Committee deem it impracticable within the limits of this report to consider all of these acts at length. Apart from the Rate Law and its ramifications it might be interesting to know that several other laws have received judicial construction by the Supreme Court of the United States. As affecting transportation, which has been uppermost in the public mind for some time, the Safety Appliance Act, for example, was held constitutional by the Supreme Court in the case of Johnson v. Southern Pacific Railway, 196 U. S., 369.

Among other things the Court said:

"The primary object of the Act was to promote the public welfare by securing the safety of employees and travellers, and it was in that respect remedial, while for violations a penalty of one hundred dollars, recoverable in a civil action, was provided for, and in that respect was penal. But the design to give relief was more dominant than to inflict punishment."

The Nine Hour Law of March 4, 1907, provided that no operator, train dispatcher, or other employee who by the use of the telegraph or telephone, despatches, reports, transmits, receives or delivers orders pertaining to or affecting train movements, shall be required or permitted to remain on duty for a longer period than nine hours in any twenty-four under circumstances named, and it is to be assumed that this act will be construed in the same way as the Safety Appliance Act, that is, that its primary object, apart from its penalties, is to promote the public welfare by securing the safety of employees and travellers.

On June 11, 1906, Congress entered boldly into the realm of master and servant and passed what is known as the Employer's Liability Act. This act made common carriers engaged in commerce between the several States liable to employes or in case of death to his representatives for damages that might result from the negligence of any other employee or for any defect due to negligence in the operation of its cars, engines, roadbed, etc. The act also abolished the doctrine of contributory negligence and of fellow-servants.

A suit was brought under this act by one Damselle Howard

against the Illinois Central Railroad Company. The defendant raised the constitutionality of the act upon the ground that Congress had no authority to legislate upon the subject at all, and because the act sought to regulate all commerce, and Congress had no power to regulate commerce wholly within a State. The act was held unconstitutional upon the latter ground. The Court held that Congress might prescribe, under the power to regulate commerce, such rule as that indicated by the statute, but it held, as the regulation included intrastate as well as interstate commerce, that the intrastate regulation was beyond the power of Congress to enact, and was so illegally joined and imbedded with the constitutional regulations as to render the whole act inoperative and void. Among other things the Court

said:

"The test of power is not merely the matter regulated, but whether the regulation is directly one of interstate commerce, or is embraced within the grant conferred on Congress to use all lawful means necessary or appropriate to the execution of the power to regulate commerce. . . We fail to perceive any just reason for holding that Congress is without power to regulate the relation of master and servant to the extent that regulations adopted by Congress on that subject are solely confined to interstate commerce, and therefore are within the grant to regulate that commerce or within the authority given to use all lawful means appropriate to the exercise of the power conferred," and accordingly held that while Congress could regulate as to interstate movements, it had no power to regulate matters exclusively within the State.

It may be interesting to note how the members of the Court viewed the question involved. Mr. Justice White wrote the opinion, in which Mr. Justice Day concurred. Mr. Justice Peckham, the Chief Justice, and Mr. Justice Brewer concurred in the result of the decision, while Mr. Justice Moody dissented at length, holding the act to be constitutional, and with him concurred Justices Harlan and McKenna. Mr. Justice White's opinion not only declared the act void, but at the same time stated what in the opinion of the Court Congress might do. He said:

"If it be that from the nature of the subject no power whatever over the same can under any conceivable circumstances be possessed by Congress, we ought to so declare, and not by an attempt to conceal the inconceivable assume the existence of some authority, and thus it may mislead Congress in giving rise to future contention."

This practically informed Congress that it might pass another act within the terms of this ruling; and this Congress immediately proceeded to do, and on April 22, 1908, it received the approval of the President. This act is entitled "An Act relating to the liability of common carriers by railroads to their employees in certain cases," and provides that "every common carrier by railroad engaged in commerce between the States shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce or in case of his death to his widow, etc., where such injury or death results in whole or in part from the negligence of any officer or employee of such carrier or by reason of any defect or insufficiency due to negligence in its cars, machinery, appliances, track, etc., and the fact that the employee has been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."

Again, on June 1, 1898, Congress passed an Act relating to arbitration and settlement of disputes between carriers engaged in interstate commerce and their employees and among other things provided that if any employer should threaten any employee with loss of employment or unjustly discriminate against any employee because of membership in a labor organization, he should be guilty of a misdemeanor, and upon conviction fined, etc. One Adair, a Master Mechanic in the employ of the Railroad Company, discharged one Coppage, who was a member of the Order of Locomotive Firemen, because of his membership in such labor organization. Adair was indicted and convicted, and, upon appeal to the Supreme Court, this judgment was reversed. The Court held:

That there was no such connection between interstate com