By this provision the law of conspiracy in relation to restraint in equity is practically nullified in labor disputes. The present law of conspiracy is too well understood to merit any extensive discussion before this body. The courts both in England and in the United States have asserted that there is no act so innocent as to be free from criminality if it attaches to an unlawful purpose. It is in a convenient misapprehension of this principle that affords excuse for the proposed law. The means adopted by labor organizations for the accomplishment of their ends are exercised by virtue of the understanding and conspiracy that exists between them. Assault and violence are as much a part of picketing as membership in labor organizations entitles a man to be called a union man.

How are we to distinguish, under this bill, when such a condition as the following presents itself? A number of men are named as pickets to do their work in a peaceful manner on the first day. When I say "peaceful" I mean peaceful in the sense of no assaults and no violence. They follow the nonunion workman to his home, they suggest to him that he join the union, they tell him it will be better for himself and his family to follow this advice, a veiled threat, but their actions are orderly. This conduct continues on the next day and the next, but on the third day a vicious assault occurs; the men who participated in the picketing do not actively engage in the assault. On the day after 500 men assemble at the plant, a riot occurs, and every time thereafter the nonunion workmen are approached by the pickets, every time they are followed on the streets, I do not care whether the number is one, two, or more, once after the violence begins every act in connection with the conspiracy, however peaceful it may be, participates in the illegal character of the whole conspiracy and should be properly subject to writ of injunction.

I defy any man to point out to me any case decided by any Federal court, whether of inferior or superior jurisdiction, wherein so-called peaceful persuasion was enjoined, where that peaceful persuasion was not shown to be a part of a conspiracy to assault, to murder, or to dynamite, or to do other things of like character commonly used by striking unionists to render their operations effective.

After a conspiracy has once been inaugurated, with the object in view of compelling acquiescence with their demands, and reaches a point where violence is perpetrated as a means to make the strike effective, the law does not and can not in justice disassociate from that violence or riot or annoyance the means by which the assaults which follow are made possible. Men do not commonly follow others upon the streets for the purpose of obtaining and communicating information or of peaceful persuasion. The words of the section say: From attending at or near a house or place where any person resides or works or carries on business or happens to be for the purpose of peacefully obtaining or communicating information.

What information may the picket give? Under this bill he could with impunity communicate to the man who is selected to make the assault the residence of the person upon whom the assault is to be committed. He peacefully follows him and peacefully communicates, but, notwithstanding that fact, he is a part of the general conspiracy and, being a part of that general conspiracy, his act, which is otherwise innocent, participates in that conspiracy and becomes of itself a

crime. You can not disassociate generally the situation of the socalled peaceful picketing and the peaceful boycott from the things which invariably and inevitably accompany the so-called picket and the boycott. As has been quoted by me from a decision of the court to this committee in the course of this argument, the violence, intimidation, and threats follow as surely as night follows day. The labor organizations of this country do not want the opportunity to merely stand upon the street and peacefully persuade men singly or in pairs in a friendly way. Why, gentlemen, you and I know that this bill is not intended or directed to any such purpose, but that its clear object is to suspend the law of conspiracy and to so nullify its effect that acts may be participated in which inevitably produce disorder in violation of sacred rights.

THE PROVISIONS OF THE BILL ARE UNCONSTITUTIONAL.

The purpose of this bill is so obviously unjust and the demand for such legislation so lacking in excuse that we might rest content with a mere analysis of its purport without recourse to a discussion of its constitutionality. I wish, however, before concluding to call the attention of the committee to the fact of its unconstitutionality, first, as a direct interference by Congress with the inherent power of the judicial branch of the Government; second, as a direct attempt to deprive citizens of fundamental rights without due process of law.

This bill is not designed to regulate the issuance of injunctions alone, but to deprive the equitable division of our Federal commonlaw courts of their power to prevent the commission of wrongs where no adequate remedy at law exists. The Constitution of the United States, section 1, Article III, says:

The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.

This judicial power is the same, whether vested in the Supreme Court of the United States or in the inferior courts. The Constitution creates the power and Congress is authorized to ordain and establish inferior courts, to which this power flows. The power, however, is identical whether found in the Supreme Court or in the circuit courts. of the United States. The same act created the power as to each. The language, the circumstances, the purpose, and the constitutional qualities with reference to each are the same. The second section of Article III of the Constitution provides that the judicial power shall "extend to all cases in law and equity arising under this Constitution." Once the jurisdiction is named and defined and the courts created or ordained, no distinction exists as to the source of the power which flows into them, whether court is a circuit court or the Supreme Court of the United States. Jurisdiction may be fixed by Congress, but the judicial power can not be changed without a violation of the Constitution. It is true there have been quoted certain dicta which seem to indicate the contrary, but a close analysis of the cases commonly used for the purpose of establishing the contrary of our contention will demonstrate that they can not be properly considered authority.

It will be conceded that the judicial power with which the constitution concerns itself is that which obtained in the high courts of

chancery in England. These courts unquestionably possessed and exercised authority to restrain the character of acts named in this bill as not hereafter to be made the subject of restraint.

In the case of State of Pennsylvania v. The Wheeling, etc., Bridge Co. et al. (13 How., 563) the Supreme Court of the United States held:

In exercising this jurisdiction the courts of the Union are not limited by the chancery system adopted by any State, and they exercise their functions in a State where no court of chancery has been established. The usages of the high court of chancery in England, whenever the jurisdiction is exercised, govern the proceedings. This may be said to be the common law of chancery, and since the organization of the Government it has been observed.

In the case of Smith v. Aykell (3 Atkins Chancery Rept., 566) the Lord Chancellor issued a restraining order without notice and without hearing, in accordance with the then well-settled procedure of the high court of chancery. In reference to Eden on Injunctions (1821), and Adams's Equity (1845), the proof shows that such was the common practice in their time. The more recent law enunciated in this country, chiefly from State decisions, emphasizes the charcter of the power reposed in our courts by the constitution. The constitution of Connecticut, Article V, provides that

The judicial power of the State shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall from time to time ordain and establish.

The case of Brown v. O'Connor (36 Conn., 446) construes this section of the constitution of this State, and says:

It is obvious from this view of these provisions that the general assembly have no power or authority to organize courts or appoint judges by virtue of general legislative power conferred upon them, and that their authority to do this is a special authority, derived from Article V of the constitution alone; and that the judicial power is not conferred upon the general assembly to vest by force of the constitution the courts when organized pursuant to the special provisions of that article.

Continuing, the court says:

It is conceded, as it well may be, that the legislature had the power to constitute this police court under the provisions of section 1 of the fifth article. There is nowhere in that instrument any limitation in respect to the number or character of the inferior courts which they may establish. It was therefore competent for them to provide for the organization of the court in question, and to define the jurisdiction it should possess, and when so constituted, the judicial power of the State vested in it by force of the constitution to the extent of the jurisdiction so defined.

The difficulty in determining the question of the authority of Congress or a legislature over the courts ordained by them is founded in a failure to distinguish between jurisdiction and judicial power. This distinction is clearly set forth in the case of Jackson v. Nimmo (71 Tenn., 608), where the court says:

In view of this, we think it clear, from the first and eighth sections of the article from which we have quoted, that the preservation of these courts, with their distinctive features, modes of procedure and organism, substantially as independent and separate agencies for the exercise of these judicial powers was intended, the courts to remain intact. But the matter of their jurisdiction is not so fixed, nor was it so intended. This was to remain as then until changed by the legislature. To what extent the jurisdiction thus left under control of the legislature may be changed we could not definitely determine. The existence, however, of these courts as parts of the judicial power of the Government is beyond the power of the legislature to destroy. The courts are to be preserved intact, but what shall be the matter over which they shall exercise their powers, subject to certain limitations involved in other clauses of the constitution, is left to legislative discretion.

In the case of the Board of Commissioners of Vigo County v. Stout et al. (136 Ind., 58) the following language is found:

Courts are an integral part of the Government, and entirely independent, deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the constitution or established in pursuance of the provisions of the constitution, can not be directed, controlled, or impeded in its functions by any of the other departments of the Government. The security of human rights and the safety of free institutions require the absolute integrity and freedom of action of courts.

Callahan v. Judd et al. (23 Wis., 350) states the law as follows: It may well be that the legislature may deprive the circuit courts of original jurisdiction in actions for the foreclosure of mortagages. It is unnecessary to determine whether it could or not. But it is quite certain that this clause contains no authority for it, while leaving those courts jurisdiction of this class of actions, to attempt to withdraw from them an acknowledged part of the judicial power and vest it in the jury. Hence, it must be that while the legislature might narrow the jurisdiction of the court, still so long as the court retained jurisdiction by virtue of the legislative act establishing it, it is beyond the power of the legislature to impair the judicial power.

In the case of the American Insurance Co. v. Candor (1 Pet., 511), where the question of the difference between territorial courts and district courts was in issue, Mr. Justice Marshall said:

These courts (territorial courts) are not constitutional courts in which the judicial power conferred by the Constitution or the General Government can be deposited. They are incapable of receiving it. The jurisdiction with which they are invested is not part of that judicial power which is defined in Article III of the Constitution, but is confined by Congress to the execution of those general powers which that body possesses over the courts of the United States.

We invite the further attention of the committee to the following decisions equally applicable to the question: In re Debs (158 U. S.), Kansas v. Colorado (206 U. S., 31), Brown v. Kalamazoo Circuit Judge (Mich.), In re McCown (139 N. C., 95), Bradley v. State of Georgia (111 Ga., 168), Carter v. West Virginia (96 Va., 791), Smith v. Speed (55 L. R. A., 402 Okla.), and Hale v. The State of Ohio (55 Ohio State Reporter, 210).

The necessary conclusion from a careful reading of these cases must be that the judicial power once vested in the courts can not be so changed by legislative act as is contemplated in the measure under consideration.

DUE PROCESS OF LAW.

Under and by virtue of the Constitution of the United States no citizen can be deprived of life, liberty, or property without due process of law. When by proper procedure a litigant presents to a Federal court in equity facts showing that irreparable harm is threatened and that no adequate remedy at law exists "due process of law" entitles him to the issuance without notice and hearing of a restraining order to the end that his property may be preserved. The denial of this right is a denial of due process of law. In the bill before us Congress would step in and by its act declare that under no circumstances shall the citizen have his constitutional right to due process of law in labor controversies where his property is affected and his rights violated by a certain classification of actions on the part of aggressive unionism. There can be no reasonable question but that the bill before us attempts to make constitutional rights

and remedies dependent for their use and protection upon the peculiar kind of controversy or dispute in which they are involved and not upon the very nature of the right itself. There can be no serious question but that it undertakes to take from one class of citizens rights to which they and every other class of citizens are and have been entitled to. It can not be doubted but that the bill attempts to arbitrarily exempt one class of citizens, to wit, union men in labor disputes, from the uniform operation of the civil laws of the United States.

No one will contend but that under the provisions of the fourteenth amendment of the Constitution providing that no State shall deprive "any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction equal protection of the laws" would make the legislation contemplated clearly unconstitutional if a State attempted to pass it. If such a bill under such circumstances became a law, it unquestionably would be class legislation. It would become the duty of the State courts and of the courts of the United States to stamp out such legislation as impossible in the face of the Constitution. The question of class legislation of the character here involved has not been before the Supreme Court for precise determination, but from the decisions already rendered it is clear that such legislation is impossible from the standpoint of its constitutionality whether enacted by Congress or by the legislature of a State.

The Congress of the United States under the fifth amendment is clearly bound by the principles of right and has no power to deprive any citizen of equal protection of the law.

The Supreme Court of the United States in the case of Dent v. West Virginia (129 U. S., 114) said:

As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms "due process of law" a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is, to a great extent, derived, and their requirement was there designed to secure the subject against the arbitrary action of the Crown and place him under the protection of the law. They were deemed to be equivalent to the "law of the land.' In this country the requirement is intended to have a similar effect against legislative powerthat is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient for the purposes of this case to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subject to which it relates and is enforceable in the usual modes established in the administration of government with respect to kindred matters-that is, by process of proceedings adapted to the nature of the case. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen.

Thomas M. Cooley, in his edition of Story on the Constitution, reaches the following conclusion:

And the same may be said of the like distinctions under laws establishing public schools, preemption laws, exemption laws, and the like; the rules which exclude persons from their benefits must be uniform and not partial; the individual is always entitled to the benefits of the general laws which govern society.

In the case of Budd v. The State (3 Humphries, 483) Judge Reese, in rendering the opinion of the court, said:

If the felony were enacted with regard to the clerks, servants, and agents of a merchant to deter them from embezzlement and false entries, would it be imagined for a