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The Green Bag,
zenship, except in cases where local prejudice is clearly shown. Public attention has not yet been drawn to the fact that it is upon this structure of an independent or Federal jurisdiction in equity, that what is called " government by injunction " is chiefly built. The protection of property or business from criminal tres passes, according to all just conceptions, concerns only the municipal laws of the States. But within the last twenty years it has been to a great extent transferred from the conusance of the grand juries and crim inal courts of the States, to that of the circuit courts of the United States, sitting in equity. In administering this jurisdiction, these judges, as we have seen, administer a law of their own creation. In administering it, they exercise a jurisdiction and they pro ceed with a course of conduct in respect of which they are not in any sense responsible to the people; for, in language employed by Mr. Jefferson, with reference to them more than three-quarters of a century ago, "impeachment has long since ceased to be a scarecrow." Thus it is that a people, • supposedly free, are governed by the only branch of their governmental establishment which is in no sense responsible to them. It is in vain that they protest; it is in vain that they enact in their legislation and or dain in their constitutions that their criminal laws shall be enforced by the indictments or presentments of grand juries and by trial by jury, surrounded by the constitutional guar antees which protect that mode of trial, instead of by injunctions followed by process of contempt, which is an inquisitorial procedure derived from the Roman law, in which the accused is arraigned before the
judge alone, presumed to be guilty until he proves himself innocent, compelled to answer interrogatories, and thus to "purge himself" of the offense which is charged against him, just as Dreyfus was compelled to do before a French court-martial. Nor is this " govern ment by injunction " as administered in the Federal courts directed against the humble classes alone : it is leveled against all classes, from striking laborers to sovereign States. By this process the States themselves are sued, in the face of an amendment to the. Federal Constitution, withholding from the Federal courts jurisdiction of suits against them. By this means their political action is arrested and controlled by the Federal courts; and within recent periods we have seen the spectacle of States which were once called sovereign, through their departmental officers, by whom alone they can exercise their powers, hauled up for trial and sen tence before the Federal district judges. Nor is it at all difficult for the Federal courts to obtain jurisdiction, on the ground of diverse state of citizenship, of suits of this character. The easy device of transferring a few share certificates, or a few corporate bonds, to a non-resident, is sufficient to achieve this result. — a spectacle which we see enacted every day. To all this it may be replied that " govern ment by injunction" is better than no gov ernment at all — better than anarchy. That is unquestionably true; but it is not to be overlooked that, in its practical application, the statement that it is necessary to resort to Federal writs of injunction to enforce the criminal laws of the States, involves a total impeachment of the sufficiency of popular government.
