mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted.

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 enforceable and shall not afford any basis for the granting of legal or equitable relief by any court of the United States, including specifically the following:

Every undertaking or promise hereafter made, whether written or oral, express or implied, constituting or contained in any contract or agreement of hiring or employment between any individual, firm, company, association, or corporation, and any employee or prospective employee of the same, whereby— (a) Either party to such contract or agreement undertakes or promises not to join, become, or remain a member of any labor organization or of any employer organization; or

(b) Either party to such contract or agreement undertakes or promises that he will withdraw from an employment relation in the event that he joins, becomes, or remains a member of any labor organization or of any employer organization.

Sec. 4. No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in cases involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:

(a) Ceasing or refusing to perform any work or to remain in any relation of employment;

(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in section 3 of this act;

(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute any strike or unemployment benefits or insurance or other moneys or things of value;

(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against, in or is prosecuting, any action or suit in any court of the United States or of any State;

(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;

(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;

(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;

(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and

(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 3 of this act.

Sec. 5. No court of the United States shall have jurisdiction to issue a restraining order or temporary or permanent injunction upon the ground that any of the persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated in section 4 of this act.

Sec. 6. 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 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.

Sec. 7. No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect—

(a) That unlawful acts have been committed and will be continued unless restrained;

DEFINING AND LIMITING JURISDICTION OF EQUITY COURTS 3

(b) That substantial and irreparable injury to complainant's property will follow:

(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;

(d) That complainant has no adequate remedy at law; and

(c) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.

Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant's property: Provided, however, That if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order shall be effective for no longer than five days, and shall become void at the expiration of said five days. No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney's fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.

The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity.

Sec. 8. No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor disputing question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.

Sec. 9. No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition or such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided herein.

Sec. 10. Whenever any court of the United States shall issue or deny any temporary injunction in a case involving or growing out of a labor dispute, the court shall, upon the request of any party to the proceedings, forthwith certify the entire record of the case, including a transcript of the evidence taken, to the circuit court of appeals for its review. Upon the filing of such record in the circuit court of appeals, the appeal shall be heard and the temporary injunctive order affirmed, modified, or set aside with the greatest possible expedition, giving the proceedings precedence over all other matters except older matters of the

same character.

Sec. 11. In all cases where a person shall be charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court of the United States (as herein defined), the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed: Provided, That this requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court.

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Sec. 12. The defendant in any proceeding for contempt of court is authorized to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge and if the attack occurred otherwise than in open court. Upon the filing of any such demand the judge shall thereupon proceed no further, but another judge shall be designated in the same manner as provided in case of the approval of an affidavit of personal bias or prejudice under section 21 of the Judicial Code. The demand shall be filed prior to the hearing in the contempt proceeding.

Sec. 13. When used in this act, and for the purposes of this act

(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employers; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a "labor dispute (as hereinafter defined) of 'persons participating or interested" therein (as hereinafter defined).

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(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association of employers or employees engaged in such industry, trade, craft, or occupation.

(c) The term "labor dispute" includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms and conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.

(d) The term "court of the United States means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia.

Sec. 14. If any provision of this act or the application thereof to any person or circumstance is held invalid, the remainder of the act and the application of such provisions to other persons or circumstances shall not be affected thereby.

Sec. 15. All acts and parts of acts in conflict with the provisions of this act are hereby repealed.

The CHAIRMAN. Are you ready?

STATEMENT OF ANDREW FURUSETH, PRESIDENT OF THE INTERNATIONAL SEAMEN'S UNION OF AMERICA

Mr. FURUSETH. The question to be heard will be the bill introduced by Senator Shipstead.

The CHAIRMAN. You take your own course.

Mr. FURUSETH. Well, the substituted bill committed by the committee for consideration, as I understood it, was drawn very largely by the professors and lawyers that were called in. That is, Frankfurter in his book claims that.

It seems to me that the thing does nothing except specifically turn all the power, except to put labor in a position of asking for the extension of the equity power, so as to control all the hopes, aspirations, and activities of organized or unorganized labor, and that when it is adopted, if it be adopted, the Sherman anti-trust law might be safely dismissed and repealed, because everything once

given to labor under that power completely and in a separate piece of legislation, there is no need for any Sherman Antitrust Law any longer. It does not do any good anyway, because where they have not legislated its teeth out, the court has taken them out. So that they go on with their mergers and combinations absolutely as though no such law existed.

I felt in reading the bill it raised a tremendous lot of questions, and as a result I wrote a letter to you dealing with the bill, taking the decisions of the Supreme Court and testing the bill out in the light of those decisions, and came to this conclusion, that the only thing that would stand in that bill was the conferring of the power upon the courts to treat labor as being purely property, either inherently in itself or belonging to somebody, and, therefore, it necessarily would have no chance anywhere except in the equity court, because everything would land there.

But the equity court is a court of conscience, purely a question of conscience. The equity judge has got an absolute right to set aside all statutes, constitution, or all decisions in order to do justice as he sees it in his conscience.

That was well exemplified in a decision since that time. I guess I haven't got it here. No; I have not. This was a case in Wisconsin.

In that case the supreme court denied the injunction because the company did not come in with clean hands. Now that, of course, could have been done without the Wisconsin law. Over and over again in that decision they take the historical position that equity is chancery, and chancery is the king's prerogative, that it is absolute and irresponsible and follows conscience purely.

Now, Mr. Frankfurter, who was one of the men who helped to draw that part of it, or defines it, in this book of his on labor injunctions, treats equity as law and law as equity.

He quotes from Maitland as follows:

We ought to think of equity as supplementary law, a sort of appendix added to our code, or a sort of gloss written around our code.

Note that the book has no definition of "equity " and no definition of "law."

I wrote to Mr. Frankfurter asking him for that, the following letter:

DEAR MR. FRANKFURTER: I have read your book Labor Injunctions with such care as I have been able to give, and I want to congratulate you upon the immensity of your research and of your work.

You have treated me so kindly in your book that I am making bold to ask for some explanations. You have quoted approvingly, from F. W. Maitland's lectures on equity as follows:

"We ought to think of equity as supplementary law, a sort of appendix added to our code, or a sort of gloss written around our code."

This quotation seems to me to be the keynote of your book, and I want to ask whether I am right in so considering it. Since the Constitution says that "the judicial power shall extend to all cases in law and equity,” I am asking you if you will be so kind as to give me a definition of law, as understood at the time the Constitution was adopted, and what therefore in all probability the framers of the Constitution may have had in mind when they used the word "law."

to

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The same question put about the same way, I desire to ask with reference equity." What was understood by "equity" when the Constitution was adopted? Was it, or was it not the same understanding that existed in England at that time?

In England equity had jurisdiction to protect property and property rights when there was no remedy at law. Was the definition of "law," as the word is used in the Constitution where it is not defined, the same as the English definition of law at that time? Was it this conception of law that was in the minds of the framers of the Constitution and the framers of the fifth amendment?

Was it, or was it not, the English definition of property that was in the minds of the framers of the fourteenth amendment, of Congress when it was submitted to the people, and of the people when it was adopted? Whence, if not from the extension of the definition of property and of equity, comes the power exercised by the judiciary to set aside the Bill of Rights and the thirteenth amendment.

Hoping that you will look upon these questions as coming from one who, in a friendly spirit, seeks the truth, I respectfully yet earnestly beg of you to answer them, and in doing so follow Lincoln's advice in using a language so simple that no one will have any difficulty in understanding. With great personal regard, I am

Very truly yours,

ANDREW FURUSETḤ.

Now, I got an answer to that, or, rather, I got an acknowledgement, not an answer. It did not answer my question at all.

MY DEAR MR. FURUSETH: Some day I hope luck be with me and I will have an opportunity for a good long talk with you about the questions you raise in your letter. Correspondence is a poor way of getting at one anothers thoughts. Besides, I happen to be under terrific pressure and therefore will have to express myself very briefly.

I think the difference between us is this: You base your efforts on the assumption that at the time of the adoption of the Constitution equity was only concerned with tangible property, and you then proceed to argue that the limits of equity in 1789 are the limits of equity to-day.

Now as a matter of history, I am not at all sure that equity was as limited when the Constitution was framed as you deem it to have been. But far more important than that, equity was not stereotyped in 1789. It presents a continuing process, and it has developed enormously since 1789. I think it is perfectly hopeless to try to bring it back within the narrow mold which you believe to have contained it in 1789.

You know how much I admire your efforts and your courage. But I think the road of reform is not in this attempted return to the past. It seems to me a perfectly hopeless attempt, and one can be absolutely sure that even were you to succeed before Congress, the Supreme Court would invalidate such legislation.

You know how deeply I agree with you as to the abuses to which injunctions have been subjected and how much I want these abuses stopped. I think they must be dealt with directly and not by any effort to define abstractly the limits of "property."

With warm personal regards.

Now, that does not give any answer at all to my question, and the book is written around the idea that there is no distinction really. Now, in the definitions as I find them there is a fundamental distinction. The one is the law of the people, arrived at through the legislative channel, through their elected representatives acting under the Constitution. That is the law. Back of it is the imagination, the conscience, and the will of the people in a self-governed community.

Equity is the law of one individual man, no matter what we may call him. We may call him, as he was called in Rome, a tribune, or an emperor, or a Caesar, or, as he was called in the Middle Ages, king or emperor, or, as we call him to-day, a judge. The same identical power is the one that is used, and it is simply passed from one to the other. It is irresponsible absolutism that can not exist except where popular government or democracy, or whatever you may choose to call it, has been destroyed.