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HOUSE OF COMMONS,
July 4, 1904.

MY DEAR MR. CHOATE:

You will recollect that when I told you I hoped to have the honour of availing myself of the invitation of the American Bar to address them at St. Louis I added that it was quite possible that circumstances might put it out of my power to

come.

I had hoped that I should not be thus prevented, but I much regret to find that the exigencies of public business this year absolutely forbid my further entertaining the hope of coming.

I felt it my duty to consult the Secretary for Foreign. Affairs and the Lord Chancellor on the point, and they were both clear that it was impossible for me consistently with my public duties to visit America this year. In this the Prime Minister entirely concurs.

You will, I know, understand the circumstances and sympathize with me in this disappointment. I regarded the invitation as a very great honour, and both Lady Finlay and myself had looked forward to our visit with great pleasure and interest. It is, however, now impossible, and I can only ask you to express to the American Bar my sense of their kindness and my great regret that circumstances make it impossible for me to avail myself of it.

Yours very sincerely,

R. B. FINLAY.

New members were then elected.

(See List of New Members.)

The President:

Mr. Logan now has the floor to present the minority report of the Committee on Commercial Law.

Walter S. Logan, of New York, then presented the minority report of the Committee on Commercial Law.

(See the Report in the Appendix.)

The President:

Gentlemen, the reports are before you for your action.

Frederick N. Judson, of Missouri:

As the report of the committee recommends no action by the Association, I rise to move that the report of the committee, with the expression of the views of the minority, be received and filed.

In that connection, before taking my seat, as one who signed the majority report, I wish to say that the statement of our distinguished friend, the Chairman of the committee, that he had his minority report ready the day following the receiving of the majority report makes me regret that he did not find time to submit his authorities to the majority of the committee; or he must have been very diligent in preparing them in a single day. It should be clearly understood what the issue between us is. The majority of the committee did not understand that they were instructed to find remedies for the enforcement of the so-called anti-trust act of Congress. They did understand that they were asked to consider and find remedies in legislative form for any combination that may threaten commercial intercourse. If gentlemen will examine the cases cited-and I do not care to go beyond the cases which our Chairman has himself presented in his minority statement-they will find the law to be simply this: That a Circuit Court of the United States under its general equity powers, where the conditions for the exercise of equity jurisdiction exist, such as irreparable injury or the prevention of a multiplicity of suits, will exercise that jurisdiction and protect the suitor against unlawful combinations in commerce of any kind. Of course just here comes the question of the effect of this proposed amendment of our Chairman, and it should be clearly understood. As the law stands now, the Circuit Court of the United States will only have such jurisdiction when the suit is brought on the equity side of the court, and not based upon a federal statute or claim of federal right where the necessary conditions of diverse citizenship exist. If you want to bring a suit against a citizen of your own state for relief against a combination threatening commercial intercourse, whether of labor or

of capital, you can go of course into the Circuit Court of the United States if you have non-resident parties, or into the State court if you have not. Now the question squarely presented to the committee was this: Is there such a public emergency to-day as calls for the increase of the powers of the federal courts in granting injunctions so that we can enable a federal court to grant an injunction to protect a man in case of irreparable injury to interstate commerce when the parties are citizens of the same state? Our Chairman seems to think that there is, and I am certainly surprised to find such a disciple of Jefferson as our distinguished Chairman assuming the fatherhood of a bill to increase the powers of the federal courts in granting injunctions. The majority of the committee did not feel that there was any public emergency calling for that extension of the powers of the federal courts. If If you will examine the case of Blindell vs. Hagan, reported in 54 Fed. Rep. 40, and which afterwards was affirmed by the Circuit Court of Appeals in the Louisiana Circuit, you will find that the court, in a passage which our Chairman has quoted, denied the jurisdiction as to the resident defendants, but sustained it on general equity principles as to the non-resident defendant, and granted an injunction. If our Chairman's proposed amendment had been in force, the court would have retained jurisdiction against the resident defendants. Our friend, the Chairman, on page 14, cites Gulf Railway Co. vs. Miami S. S. Co., 30 C. C. A. 142. There you will find the Circuit Court of Appeals states the law that the Circuit Court of the United States should always uphold jurisdiction to protect the suitor in any case of an unlawful combination in commerce when the necessary facts of equity jurisdiction exist. When Congress passed the Sherman Act, so-called, in 1890, it was thought that when it gave the individual suitor the right to have threefold damages and gave the federal court the power to grant an injunction in a summary way at the instance of the government, that the right to the extraordinary relief to protect the citizen by injunction could

safely be left where the Constitution and laws of the United States had left it-under the jurisdiction as to citizenship which regulates the powers of the federal court. We did not think there was an emergency calling for the extension of that jurisdiction. So I would suggest that if the Association should in its wisdom approve the views of our distinguished Chairman they should amend the act so that it would read, on page 5: An act to provide additional remedies for violation. of laws against unlawful combinations by extending the powers of the federal courts in granting injunctions against citizens where there is no diverse citizenship.

There is another point to be considered in this proposed amendment. It is intended to be very comprehensive, and it provides that any person specially injured may maintain a suit for injunction as well as for damages; that is, the injunction and the damages for a tort are to be awarded in the same suit. I make this statement because we had no opportunity to see the authorities cited by our distinguished Chairman when our report was prepared.

As to the second bill recommended, I have only this to say: he may be right, and he may not, but I am inclined to think that that remedy might more appropriately have been presented to one of the sections of the congress which met here last week. Some present might think that a reform in our tariff laws might be an effective remedy for combinations in commerce, and yet I do not think that would be a proper subject to bring before such a body as this. We are going out of the province of the Bar Association when we deal with such questions as the effecting of social reforms through the exercise of the power of taxation.

As the majority report makes no recommendation, I have risen to make the simple motion that the report of the committee, with the expression of the views of the minority, be received and filed.

John Morris, Jr., of Indiana:

When the Association receives a report in proper form from one of its committees, it seems to me superfluous to pass a motion that the report be received. At least, the passing of such a motion could not mean that the report was approved, for the Association could not well act upon a report until it had received it. I judge from Mr. Judson's remarks that he assumes that the adoption of his motion to receive and file the majority and minority reports of the Committee on Commercial Law will amount to an approval of the majority report and disapproval of the minority report. In order that there may be no misunderstanding about the matter, I wish to object to this motion as being out of order, and to any further consideration of these reports, because, as they show upon their face and as I know to be the fact, they have not been printed and distributed to members according to the by-laws of the Association.

George Whitelock, of Maryland:

I would like the distinguished gentleman from Indiana to read the by-law upon which he relies.

John Morris, Jr.:

I will do so, sir.

"All committees may have their reports printed by the Secretary before the annual meeting of the Association; and any such report, containing any recommendation for action on the part of the Association, shall be printed, together with a draft of bill embodying the views of the committee, whenever legislation shall be proposed. Such report shall be distributed by mail by the Secretary to all the members of the Association at least fifteen days before the annual meeting at which such report is proposed to be submitted. No legislation shall be recommended or approved except upon the report of a committee."

At least one of these reports contains "recommendation for action on the part of the Association," and as the reports must be considered together it is clear, it seems to me, that

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