the second section of article 3, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard; and the mere creation of the court does not confer jurisdiction except as it is conferred in the law of its creation or its amendment.

Perhaps one earlier case is worthy of citation, and I will not quote further in this regard. In Cary v. Curtis (3 How. 235, p. 244), the court held:

The judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for a distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of investing them with the jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. Mr. TUCKER. Is that case in your brief?

Mr. RICHBERG. These cases are in Colonel Easby-Smith's brief. I have not filed a brief with the committee. They are also cited in the Senate report of this companion bill.

I perhaps may also refer to a case in which I participated a few years ago, because I think it will be pertinent here to call attention to the issue that was raised in that case and the resulting decision of the Supreme Court. That is the case of Michaelson v. United States (266 U. S. 42) decided in October, 1924. That case involved the right of trial by jury provided in the Clayton Act. One of the objections made to trial by jury, which was sustained by the lower court and by the Circuit Court of Appeals, was that the power of an equity court to punish for contempt was inherent in the court; that the court having been created, Congress could not take away the power of the chancellor to try contempt cases himself and confer that power upon a jury. The Supreme Court in an opinion by Mr. Justice Sutherland in that case held that trial by jury could be required by Congress, and then, contrary to the theory which had been advanced so often and so unsuccessfully, it held that Congress had the power to regulate the procedure and the jurisdiction of the inferior Federal courts. call attention to this particularly, because in the brief filed in that case there were two extensive arguments made which clearly had a considerable effect upon the decision of the court, which had not been made, so far as I know, before that case. Those are very pertinent

here.

I

In the first place, I had a very extensive research made by a very brilliant young lawyer who was associated with me at the time into the practices of the English courts prior to the adoption of our Constitution. We found, extraordinary as it may seem to many lawyers, that, according to the English practice, contempt of court had not been punished by the court but, as a matter of fact, the prevailing English practice up to the adoption of the Constitution of the United States, was to punish contempt of court through trial by jury, usually upon indictment or information. As a matter of fact, we found only two cases in the English reports, going back as far as 1200 and something, and coming down to the American Revolution, where a criminal contempt had been tried by a court itself.

And yet the argument was made and had been made in the Supreme Court of the United States for 100 years that it was the inherent power of a court of equity to try contempt cases by the court, and

that when the court was created by the Federal Government that power was poured into the court. It was absolutely untrue historically, and it was untrue as a fact, and of the intention of the framers of the Constitution who passed the first judicial act.

I have made this point here because of one of the questions here involved is the right of trial by jury. I want to call your attention particularly to the fact that not only did the Supreme Court of the United States, in the Michaelson case, sustain the right of trial by jury conferred by Congress, but it sustained it upon grounds which would sustain the conferring of the right of trial by jury to the full extent as provided in the proposed bill. If I had known when I came to Washington that I was going to appear before the committee, I would have brought a copy of that brief to file with the committee. I would like to do so, if I can obtain a copy from the Supreme Court files to-day, because it may aid to disabuse the minds of some members of the committee of the thought, which apparently had existed in the minds of members of the Supreme Court of the United States, to the effect that a trial by the court is an inherent part of the power of a court of equity, and an inherent part of its jurisdiction which should not be taken away.

If you accept the full argument of those who claim that the Constitution meant the courts must have all the powers naturally inherent in them, you will find that historically when that section was written it was not an inherent part of the power of a court of equity to punish by the chancellor alone for contempt of court. The practice of several hundred years in England, from which we take our jurisprudence, has been a trial by jury.

The second point which was made in the Michaelson case, and which could not have been with the same force at any time prior to the Michaelson case, I wish to present to you, because it sheds some light on the earlier decisions, in the absence of the information presented to the Supreme Court in the Michaelson case. Shortly prior to the Michaelson case, Mr. Warren had made an extensive investigation into the circumstances surrounding the passage of the first judicial act, practically by the same men who framed the Constitution of the United States. He had had access to documents that had been reposing in just for years, I believe some in the attic and some in the cellar of the Capitol. As a result, he had published in the Harvard Law Review in 1923 the results of that research, which showed beyond any possibility of contradiction on a historical basis that the men who framed the Constitution and the men who wrote the first judicial act understood that the inferior Federal courts were entirely subject to the control of Congress, so far as investing them with jurisdiction and determining their procedure is concerned. That point was also made in the Michaelson case, which, as I said, could not have been made with the same emphases before the research of Mr. Warren, which had brought out the historical facts supporting what had long been the argument of many members of the bar before the Supreme Court.

Now, in view of the decisions of the Supreme Court from which I have quoted briefly, and in view of these two major propositions which were involved in the Michaelson case, I submit that it is not a fairly debatable question at this time as to whether the limitation upon the jurisdiction and the limitation upon the procedure of the

Federal courts which are laid down in this bill are within the power of Congress. I submit that the only argument to be made against that is an argument to the effect that the Supreme Court of the United States ought to reverse the trend of the law and the words of its decisions for over 100 years and hold for the first time that Congress has not that power which has been sustained in Congress every time it has been challenged.

Now, the second question which seems to be raised with some general emphasis here is a criticism of the Declaration of Public Policy which is found in section 2 of this bill. Well, it seems rather humorous that anyone should question the authority of the legislature to make an authoritative declaration of public policy. There is no other body in the Government which has that authority, unless it is the legislative body. The executive can not determine the public policy of the United States. It is the function of the Executive to execute the law. The courts have no ground for evolving out of their inner consciousness a public policy. It is necessary at times for a court to determine, in construing a law, what public policy it was intended to carry out; but the courts have always taken the position that it was not their business to lay down a question of public policy: and when they had passed upon any question of public policy and the legislature subsequently adopted a new public policy, that was binding on the courts.

I perhaps might quote briefly from one or two cases on this subject, of the propriety of a legislative declaration of public policy. Take an Illinois case, People v. The City of Chicago (321 Ill. 466). The Supreme Court of that State said:

The public policy of a State is to be found embodied in its Constitution, its statutes, and, when these are silent on the subject, in the decisions of its courts. The public policy of the State, when not fixed by the Constitution, is not unalterable, but varies upon any given question with changing legislation thereon, and any action which, in the absence of any legislation thereon, by the decisions of the court has been held contrary to the public policy of the State, is no longer contrary to such public policy when such action is expressly authorized by legislative enactment.

There is another case in Illinois, Union Trust & Savings Bank v. Telephone Co. (258 Ill. 202), where the court considered the power of the legislature to change an existing declaration. It was a case of restraint of trade, which was the question involved. The court made this declaration:

While no statute has been enacted declaring such exclusive contracts criminal or giving a right of action to persons prejudiced by them, the courts have declared the public policy of the State, in accordance with the common law, to be opposed to such contracts which tend to put the power to render public service in the hands of one corporation and to take it away from all others. The legislature has the power to change this policy. It is a legislative question whether the public interest will be promoted by monopolistic rather than competitive service.

It is entirely within the province of the legislature to make declarations of public policy. It is entirely within the province of the legislature to lay down these theories underlying an act which makes clear the purpose and intention of the legislature. It has been done in act after act passed by the Congress of the United States in recent years, and the Supreme Court of the United States has referred to such declarations of public policy as the basis for interpreting an act, as for example, the transportation act of 1920, which was inter

preted by the Supreme Court; as for example, the railway labor act of 1926, which was passed upon by the Supreme Court in the case of Texas & New Orleans Railroad v. the Brotherhood of Railway Clerks in 281 U. S. I have cited the last case because that case not only affirms the propriety of a declaration of public policy, but affirms the specific declaration of policy found in the proposed bill.

I think, not as a matter of citation, but as having been referred to the majority report of the Senate committee, I may point out to this committee, merely as an indication of my familiarity with that legislation, that the judiciary committee of the Senate having this subject under consideration in 1928 called in Professors Frankfurter and Sayre, of Harvard, Oliphant, formerly of Columbia University and now of Johns Hopkins University, Witte, of Wisconsin, and myself to aid in drafting that legislation.

In the writing of that section containing a declaration of public policy, I can say, without going into line for line, that it embodies two principles, both of which have been written into the opinions of the Supreme Court of the United States and already sustained as proper statements of public policy. Those two principles are involved in what is known as the Tri-City case with which, of course, you are all familiar, but merely to put the citation in the record it is the case of American Steel Foundries v. Tri-City Council (257 U. S. 184), in which opinion by Chief Justice Taft it was pointed out how helpless the single employee was to contract or exercise a freedom of contract. I will quote briefly from this decision:

Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate object. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment. The union was essential to give laborers opportunity to deal on equality with their employer. The right to combine for such a lawful purpose has in many years not been denied by any court.

That declaration is written into the statement of policy.

The second declaration in that statement of policy is that, therefore, the individual employee should have full freedom of association, self organization and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor. That declaration was written by this Congress into the railway labor act in 1926 and sustained by a unanimous decision of the Supreme Court of the United States in the Southern Pacific Clerks case, which I cited recently in the 281 U. S., the opinion having been written by Chief Justice Hughes.

In that opinion by Chief Justice Hughes he pointed out two things: First, that the carriers as employers have no constitutional right to interfere with the freedom of their employees in making their selections, and therefore, he said, they can not complain of the statute on constitutional grounds. If that is so, no employer has a constitutional right to interfere with the freedom of his employees to select their own representatives free from his coercion. That is the most recent declaration by the Supreme Court of the United States.

The courts there considered the same cases relied on by the opposition here, and, as I argued that case in the Supreme Court, I can tell how strenuously it was urged, as strenuously as it can be urged here, that under the Adair and Coppage cases, such acts were not unconstitutional. In that opinion by the Chief Justice it is stated:

The petitioners invoke the principle declared in Adair v. United States (208 U. S. 161) and Coppage v. Kansas (236 U. S. 1), but these decisions are not applicable. The railway labor act does not interfere with the normal exercise of the right of the carrier to select its employees or to discharge them. The statute is not aimed at that right of employers, but at interference with the right of employees to have representatives of their own choosing.

That is primarily what the declaration of policy in the proposed law is aimed at. It does not interfere with the freedom of employees, but it does interfere, it does prevent any relief in equity in support of a contract forced by an employer on his employees, requiring them to forego the right of choosing their own representatives, because in the Southern Pacific Clerks case, from which I quoted, the court again affirmed the right of the employees, the constitutional right, if you please, under liberty of contract, to select their own representatives to negotiate contracts for them, pointing out that their liberty would be futile if their hands were tied and they could not select their own representatives to negotiate for them, but had to select those approved by the other side. So that you have the most recent declaration of the Supreme Court sustaining the constitutional right of the employees which is written into this bill, and the denial of any constitutional right of the employer to prevent the employees from exercising such rights.

It seems that the time which was allotted for this opening statement is nearly up, and I wish to refer briefly to one or two other matters in the bill.

The CHAIRMAN. You have three minutes.

Mr. RICHBERG. There is an effort to take away those rights under a pretense which destroys the substance of a right and leaves only its shadow. There is a declaration in section 5 providing that the courts of the United States shall not issue restraining orders on the grounds that persons participating in labor disputes are engaged in an unlawful combination or conspiracy, because of the doing in concert of the acts previously enumerated, all of which were entirely peaceful and lawful acts. That is a declaration which, after a review of many recent decisions of the courts, I contend is highly necessary if labor organizations are to be permitted to function under our law, and not to be simply annihilated and paralyzed by injunctions and restraining orders issued by courts.

I want to refer in this remaining moment to one other matter, because I believe it should be called to your attention before the opponents of this legislation address the committee. That is the provision in this bill that a temporary restraining order shall be effective for no longer than five days, and shall become void at the expiration of said five days. I want to call attention to the fact that such an order is only permissible on threat of irreparable injury. Criticism has been made of the provision that it shall be terminated in five days.

I should like to call your attention to the fact that an order against any defendant, if issued without notice and opportunity to be heard,