of guiding the Federal courts in their interpretation and application of this act. That is all it is there for.

Now, the "yellow-dog contract" is covered in section 3. That provides, briefly:

SEC. 3. Any undertaking or promise, such as is described in this section, or any other undertaking or promise in conflict with the public policy declared in section 2 of this act, is hereby declared to be contrary to the public policy of the United States, shall not be enforcable and shall not afford any basis for the granting of legal or equitable relief—

By what? Not by a State court.

by any court of the United States.

It is not an inhibition against the States; it is not a statement of the public policy of the States; and it. does not affect the courts of the States in passing upon the validity or legality of what has come to be commonly known as the "yellow-dog contract."

Contracts of that sort have been construed and acted upon by the courts of the States, and cases concerning the validity of State statutes condemning such contracts have been determined by the Supreme Court of the United States, and the Hitchman case is frequently cited. The Hitchman case was also a coal case down in West Virginia; and in that case the employees of the mines were compelled to sign or consent to this contract. You know the general terms. They agree that they will not while in the employ of the employer join any labor union, and so forth. An organizer of the United Mine Workers went into West Virginia, attempting to organize the employees who had gone into the employ of the coal miners under the duress and coercion of this sort of contract. They were enjoined, and the injunction, as originally issued, is an example of one of the great abuses by the Federal courts of the injunctive process. Why, it enjoined them from even talking to a fellow member of the union. It enjoined them from giving any publicity to the fact that there was a strike or that any of these men had joined the union, or anything else. Well, as a matter of faat, the circuit court of appeals modified that injunction and in the modified form it came to the Supreme Court of the United States and the Supreme Court of the United States affirmed the modified decree of the circuit court of appeals.

Bear in mind that there were in that case circumstances which have not appeared in other cases, namely: In that case there was clear proof of fraud on the part of the organizer of those men.

The Coppage case (236 U. S. 1) involved a statute of Kansas condemning the "yellow-dog contract." The Kansas statute was a criminal statute, declaring it to be unlawful for any individual or corporation

to coerce, require, demand, and influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association as a condition of such person or persons securing employment or continuing in the employment of such individual, firm, or corporation.

Coppage was convicted and sentenced to pay a fine with imprisonment as the alternative.

Now, as in the Truax case, the Supreme Court held the law to be in violation of the Constitution in that it was in violation of the fourteenth amendment, guaranteeing the equal protection of the law

to all persons. However, the Supreme Court definitely stated in that case that there was no coercion. It said, at page 8:

At the outset, a few words should be said respecting the construction of the act. It uses the term "coerce," and some stress is laid upon this in the opinion of the Kansas Supreme Court. But, on this record, we have nothing to do with any question of actual or implied coercion or duress, such as might overcome the will of the employee by means unlawful without the act.

But Mr. Justice Holmes, Mr. Justice Day, and Mr. Justice Hughes vigorously dissented from the affirmation of that opinion.

I can only touch a few of the principal reasons here on this question of agency. Why, if the committee please, it is said that section 6 of this bill would change the fundamental law of agency. The law of agency, as we know it, applies generally to cases arising ex contractu. Occasionally it is made to apply under the rule of respondeat superior in cases of tort. Now, let us see what this section says and see if it changes the fundamental law of contracts.

Section 6, page 5 of the bill:

No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States

For what?

for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.

Why, that is not to punish some civil violation of contractual rights. These injunctions are to punish for unlawful acts.

Are we to say that every member of an unincorporated association, such as these labor organizations, running into the hundreds of thousands of members, and collectively into the millions of membersthat the courts should be permitted to continue to do what they have been doing, namely, to issue an injunction against an officer of an international or of a national union hundreds of miles away from the place where some individual member of some local union has committed an unlawful act which has neither been authorized, approved, nor ratified by that officer? Is there anything revolutionary about that? Is there any change in doctrine?

I send my clerk out and tell him to take my automobile and go on an errand for me; and, not by a mere accident but by gross carelessness, which would amount to a crime, he runs over and kills a person. Am I responsible? Not if his act constitutes a crime. Nor, can any principal be held responsible for the acts of his agents in any tort case unless the principal expressly authorized or ordered the thing to be done or subsequently ratified it or unless the agent was acting within the scope of the authority vested in him and in pursuance of the interests of the principal.

And if a man in West Virginia, an individual, goes out and commits violence, a crime, and none of his superior officers in his local union or in his international union have any knowledge that that is going to be done, does it change the rule of agency to say that the courts shall not punish those principals or higher officers for the unlawful conduct of these men, where the crime is committed without authority and without the scope of the employment. But in this case there is no employment. The doctrine of respondeat superior, of

course, applies to the case of employer and employee, not to the case of one member of a voluntary association.

It has been said, if the committee please, that this bill is brought here for the purpose of preventing punishment for fraud and violence; that the proponents of this bill want this bill enacted so that the laboring men may commit acts of fraud and violence. Does any member of this committee believe that lawyers who have taken the oath that we all must take in our courts and in the Supreme Court of the United States would help to draft or support a bill with any such purpose? I do not hesitate to say that there is not a responsible officer in any labor union in this country, whether an officer of a local union or an officer of an international union, who ever for one moment condones or attempts to condone fraud or violence by any member of his organization. It is true, as has been said here, that for 25 years the relations between laborer and employer, between capital and labor, have been improving. That is true. We are almost at the millennium, because, where the strike was common years ago in settling labor disputes, conciliation and arbitration have largely taken its place, so that the strike now, as we know from public observation, has become rare. There would be fewer strikes if labor could be told by this bill just what its rights are-which this Congress attempted to tell them when it passed the Clayton Act.

I have not time, if the committee please, to go into these various sections. I have attempted to explain them in my brief. They have been pretty fully stated by other proponents here.

I do want to make some reply to an argument that has, I think, been dragged in here about the prohibition law. It is said that if one of these sections was adopted the courts of the United States could not punish for violations of their injunctions and padlock orders in prohibition cases. Why, if the committee please, all we have to do is to read section 21 of the Clayton Act, which has been embodied in the permanent statutes of the United States and which provides—it is still in the law and this bill would not repeal it:

SEC. 21. That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia by doing any act or thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States, or under the laws of any State in which the act was committed, shall be proceeded against for his said contempt as hereinafter provided.

There is no difference between that and our section. If the courts may punish violations of injunctions issued under the Volstead Act, then under this section 21 they have the same right, especially where the United States is the plaintiff under this act. It does not change any right of the Congress to proceed under the prohibition laws. If the committee please, I think I have finished. I thank you.

ADDITIONAL STATEMENT OF DONALD RICHBERG

Mr. RICHBERG. This committee has been long-suffering and I will try not to go over the same ground which has been covered ably and sufficiently heretofore; but there are several matters which have been presented here so unfairly that I feel the statements were made only from a misunderstanding and a misinterpretation of the lan

guage of this proposed law. I can not believe that counsel would deliberately, with understanding of the language, interpret it as has occurred in several instances in interpreting the sections of this bill. Before taking up those detailed questions, I do think it is appropriate and necessary to say a word also about this question of revolutionary doctrine. As Colonel Easby-Smith has stated, the same arguments were made against the Clayton Act. But I would like to point out that in the period since the Clayton Act was adopyed. in the period during which the terms of that act have been denatured by court after court by judicial construction, some of the strongest minds on the Federal bench as well as some of the strongest minds in the legal profession have continually and persistently pointed out that the intention of the Congress in passing the Clayton Act was being frustrated, and that the benefits of the law were being taken away from those upon whom they were supposed to be conferred.

In this bill there is an effort to put back the realities of the Clayton Act and therefore there is an effort to carry out the doctrines which these great dissenters, if I may so term them, have been announcing ever since the Clayton Act was passed. And just for an understanding of who these revolutionary minds are who support the doctrines of this bill, I want to list former Justice Holmes, present Justice Brandeis, former Justice Clark, former Justice Pitney, Chief Justice Hughes, Justice Stone, and recently appointed though not yet seated Justice Cardozo, and also former Chief Justice Taft, every one of whom has announced, in official opinions, in one form or another, the support of the propriety or righteousness of one principle after another which has been written into this bill. These are the revolutionists to whom counsel desire to call your attention, and back of them are a great body of the Federal judiciary who have themselves protested against the abuse of the injunctive power which was being urged upon them and in many instances forced upon them by decisions of higher courts, nearly all of which have beenpractically every one of the crucial decisions being either a five to four dicision or a decision with substantial dissent.

The national committee which is supporting this very bill, composed of lawyers from all over the United States and professors in the law schools are members of it, happens to be headed by Judge Amidon, who was formerly a district judge and who while on the bench had written opinions expressing his condemnation of the practices which this bill tries to prevent.

You have the bill before you now substantially in the form in which it was reported by a large majority of the Senate Judiciary Committee to the Senate, including such well-known revolutionaries as are members of that committee-not to name the individuals-as a matter of fact including, I may say, the entire committee except the five who filed a minority report and who expressed their support of a large percentage of the proposals of the bill-only they desired to denature them to a certain extent.

Now, what are these revolutionary principles that it is sought to put into effect by this bill? I suppose they can be called revolutionary, if you say they go back to the Revolution. There is trial by jury, which is supposed to be the guaranty of any man accused of crime, and which existed from Magna Charta down to the date of the beginning of labor injunctions in the equity courts of this country and

existed as the right of any man accused of crime; and this bill proposes to restore trial by jury. Is there anything revolutionary in that? If you were before a court would it make any difference how you were punished, whether you were sent to jail for six months on a contempt proceeding or whether you were sent to jail on a trial by jury? It would be the same sort of punishment, would it not? And then, if you were entitled to trial by jury on a charge of burglary or highway robbery or picking pockets or any other recognized crime, will you tell me why, if you are entitled to trial by jury on every charge of crime at its worst, you should be denied such trial for a crime committed by a man in the hot-headed pursuit of one's livelihood, at most? Is there any reason why, if we should have that sacred right of trial by jury of which we boast in every other instance, men engaged in industrial controversy should be denied it?

And then there is another revolutionary principle, and that is that a man should not be condemned without notice and hearing and condemned on a blanket list of affidavits, most of which are false and which reek with perjury. I am sorry Colonel Thom has left the hearing. I do not like to say this, but it is no reflection on him but on his clients. It is a reflection on the procedure followed in injunction cases in which the Government of the United States brought in hundreds of affidavits reeking with perjury, brought in affidavits that were thrown out in instances in large batches-283 at one clip-even the court could not entertain them, although they were sufficient for the granting of a temporary restraining order that was in effect for over three weeks. And so this bill proposes the revolutionary doctrine that there should be notice and hearing before a man is condemned-supposed to be the essential of due process of law.

And then it proposes another revolutionary doctrine and that is that legislation should be written by legislators and not by courts. I want to say a word as to that revolutionary doctrine one we have begun to be forgetful of in this country. We have had so much law written for us elsewhere than in the legislature that I think even the legislatures of the States and the courts of the United States have begun to forget that the legislatures are the supreme law-making power in a democracy or else it is no democracy. Unless the law that is to govern men in the courts of the United States is written in the legislatures of the United States, there is no democracy. You can not have a law written by the man who is to enforce it, to suit his own purposes in the individual case and say that you have liberty and a democratic government, because it is gone. As long ago as Blackstone, that principle was announced. That is not very revolutionary. You can not have the law declared and enforced by one and the same man and preserve public liberty.

So, it is proposed in this bill-and those who are supporting it desire to support that proposition that the law of industrial disputes should be written in the legislatures and not developed by the courts in individual cases to suit the feelings of the judge or his immediate reaction in a particular case as to what act should be prescribed and what should be criminal and what should be permitted.

Now, against this whence come the objections? No reflection on the distinguished members of the bar appearing here-but what forces do they represent? I should think they might have a touch. of shame in coming before this committee in this period of our history