Here I omit a few lines.

These queries answer themselves. The answers, as we think, lead to a single conclusion: Under constitutional freedom of contract, whatever either party has the right to treat as sufficient ground for terminating the employment, where there is no stipulation on the subject, he has the right to provide against by insisting that a stipulation respecting it shall be a sine qua non of the inception of the employment, or of its continuance if it be terminated at will. It follows that this case can not be distinguished from Adair v. United States.

In Adair v. The United States is another decision of the Supreme Court which I will refer to after I have concluded with this opinion. I omit, now, a page or two because I want to read a few lines from the further expression of the court in this opinion to show its true conception of the rights of union labor and its sympathy with them.

Of course, we do not intend to say, nor to intimate, anything inconsistent with the right of individuals to join labor unions, nor do we question the legitimacy of such organizations so long as they conform to the laws of the land as others are required to do. Conceding the full right of the individual to join the union, he has no inherent right to do this and still remain in the employ of one who is unwilling to employ a union man, any more than the same individual has a right to join the union without the consent of that organization.

The case of Adair v. The United States is a case decided by the Supreme Court and reported in 208 United States, page 161. The Adair case was one wherein was involved the constitutionality of an act, not of a State, but an act of the Congress of the United States itself. Congress in exercising its powers to legislate in matters of interstate commerce passed an act providing as follows:

That any employer subject to the provisions of this act and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization, or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof, * * shall be punished

as specified in the act.

*

* *

*

The Supreme Court of the United States, speaking through Mr. Justice Harlan, held that that act was void; unconstitutional in that it was such an interference with the liberty of contract guaranteed by the Constitution; that it was such an interference with the liberty of an individual to conduct his business, so long as he remained within the limits of the law, according to his own desires; that that act was also unconstitutional.

There is a third case along the same lines, of Truax v. Raich; a decision by the Supreme Court of the United States reported in 239 United States, page 33. This was a suit involving one who was not even a citizen of the United States, an alien. The State of Arizona had passed an act through its legislature which provided in part as follows:

An employer of more than five workers at any one time in the State of Arizona, regardless of kind or class of work or sex of workers, shall employ not less than 80 per cent qualified electors or native-born citizens of the United States or some subdivision thereof.

The Supreme Court held that that section of the law enacted by the State of Arizona was in conflict with the provisions of the Federal Constitution which give to every person in the jurisdiction of the

United States the equal protection of the law, elaborating the thought expressed in the two cases to which I have already just now referred, that the right to labor, the right of a man to work with his hands as a laborer, the right of a man to work with his brains (another kind of labor), the right of a man to engage in any lawful kind of business. is a part of that liberty and freedom guaranteed by the Federal Constitution, and that the Constitution guaranteed it to everybody who is within the jurisdiction of the United States, under the "equal protection of the law" guaranty; and that the State of Arizona and no other State could maintain such a law even against an alien.

I desire now to read a word more from the decision of Gompers v. The Buck's Stove & Range Co. case in the Thirty-third District of Columbia Appeals, which court ranks next in authority to the Supreme Court of the United States in this jurisdiction, and the case which I have here was the final expression of the court, for the reason that after it got into the Supreme Court of the United States it was settled by the parties, so that this opinion stands as the law of the

case.

The particular phases of the question which I have been addressing myself to-you will remember I laid out three or four general propositions at the outset-you will find to be in large part specifically dealt with in the short quotations which I shall read from this case.

Mr. Justice Robb quotes, on page 101 of Thirty-third District of Columbia Appeals, the Supreme Court of the United States in Powell v. Pennsylvania (127 U. S., 684), as follows:

The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guaranteed by the fourteenth amendment. The court assents to this general proposition as embodying a sound principle of constitutional law.

I omit a line or two, because referring to citations which sustain that doctrine and to read those mere citations would be of no interest to the committee. Then follows this quotation:

The right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence. * This right is a large ingredient in the civil liberty of the citizen.

* *

In Hopkins v. Osley Stove Co. (28 C. C. A., 99, U. S. App., 709, 83 Fed., 912) the circuit court of appeals for the eighth circuit said: "The right of an individual to carry on his business as he sees fit and to use such implements or processes of manufacture as he desires to use".

Mark you, that is what I dwelt on so much yesterday

provided he follows a lawful avocation and conducts it in a lawful manner, is entitled to as much consideration as his other personal rights, and the law should afford protection against the efforts of powerful combinations to rob him of that right and coerce his will by intimidating his customers and destroying his patronage.

It will thus be seen that the supreme law of the land guarantees protection to all who desire to engage in a lawful calling or business, subject, of course, to such reasonable regulations as it may be necessary to impose. And when Mr. Gompers advises his followers that a man is entitled to protection against a threatened destruction of his home, but none against a malicious destruction of the business which enables him to maintain his house, Mr. Gompers is mistaken. Was the combination entered into by appellants unlawful? A conspiracy has been defined as a combination of two or more persons to accomplish something unlawful or something not in itself unlawful by unlawful means. (Pettibone v. United States, 148 U. S., 203; 37 L. ed. 422; 13 Sup. Ct. Rep., 542.) In determining whether the acts of the appellants are within this definition we will here review a few of the adjudged cases on this branch of the law.

Callan v. Wilson (127 U. S., 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301) was an information in the police court of the District of Columbia, charging the defendants with a conspiracy to prevent certain members of a local union, who had been expelled therefrom, from pursuing their calling as musicians in the United States. The conspiracy, as set forth in the complaint, was to be effected by the defendants and the members of other associations with which they were affiliated refusing to work in any capacity with the expelled members, or with or for any person or firm working with or employing them, and by warning and threatening every person or firm employing such expelled members that if they did not cease to employ and refuse to employ them they would not receive the custom or patronage either of the persons 30 conspiring or of the members of affiliated organizations. The question before the court was whether the offense charged was a petty offense or one of so serious a nature that the defendants were entitled to a trial by jury. The court held that the offense charged was of the latter character.

The further details of the opinion elucidate the quotation which I have read. The defendants were convicted of a common-law conspiracy in the police court, a court which had no jurisdiction to try cases before a jury, and were fined $25, in default of which they were sentenced to jail for 30 days. They brought a writ of habeas corpus. That was the case which the judge referred to as I have just read. They brought a writ of habeas corpus on the ground that at common law a conspiracy to do the things which they had been found guilty of doing was so serious that the Constitution of the United States identified it as a crime, and that that provision of the United States Constitution which provides that the trial of all crime shall be "by jury" applied to that case, and that the judgment of the police court was therefor void; and Justice Harlan, speaking for the Supreme Court of the United States, said that the crime of common-law conspiracy, the crime of which these men had been convicted, was of such a grave and serious nature that, as matter of law, they were entitled to a jury trial under the provisions of the Federal Constitution. And so in that case those gentlemen who were convicted succeeded in establishing the proposition that the very thing which it is the purpose of this bill to prohibit, was so grave and serious a crime as that the Constitution of the United States reaches out to a charge of it and protects any citizen from being tried for it except before a jury of 12 of his peers. The opinion of Mr. Justice Robb continues:

Mr. Justice Harlan, in reviewing Callan v. Wilson, in Arthur v. Oakes

Arthur v. Oakes was a case which was tried by the circuit court of appeals, as it was then, before the creation of the present circuit court of appeals, when the Supreme Court Justice under the then existing rules went about over the circuit and themselves sat on the circuit court of appeals in cases. Justice Harlan sat in the Arthur v. Oakes case on the circuit and in deciding that case said thus, which is quoted by Mr. Justice Robb in Thirty-third Appeals, from which I am reading:

It thus appears that combinations and conspiracies by two or more persons, with the intent to injure the rights of others, were illegal at common law.

Now, gentlemen, has it or has it not yet appeared from the established law as announced by these citations, that one of these rights is the right of a man to conduct his business as he pleases, and that any combination, the purpose of which is, by any method, not merely physical force, but by any method which will accomplish it-the purpose of any combination to coerce him or to force him to do what

he does not want to do in conduct of his business is a criminal conspiracy under the common law and under the law as it exists in the District of Columbia of to-day.

He further said:

According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is, in itself, illegal, although nothing be actually done in execution of such conspiracy. This is fundamental in our jurisprudence. So a combination or conspiracy to procure an employee or body of employees to quit service, in violation of the contract of service, would be unlawful, and, in a proper case, might be enjoined if the injury threatened would be irremediable at law. It is one thing for a single individual or for several individuals, each acting upon his own responsibility, and not in cooperation with others, to form the purpose of inflicting actual injury upon the property or rights of others. It is quite a different thing in the eye of the law for many persons to combine or conspire together with the intent not simply of asserting their rights, or of accomplishing lawful ends by peaceful methods, but of employing their united energies to injure others or the public. An intent upon the part of a single person to injure the rights of others or of the public is not in itself a wrong of which the law will take cognizance, unless some injurious act be done in execution of the unlawful intent. But a combination of two or more persons with such an intent, and under circumstances that give them, when so combined, a power to do an injury they would not possess as individuals, acting singly, has always been recognized as in itself wrongful and illegal.

There ends the quotation from Mr. Justice Harlan's opinion. I omit a page or two which I would like to read, but time does not afford; then the opinion proceeds:

From these decisions

And these decisions are referred to in this page or two which I have omitted

From these decisions it will be gathered that the boycott, as generally understood, is a combination to harm one person by coercing others to harm him. The combination in this case, in our opinion, not only answers this definition of a boycott, but also the definition previously given of a common-law conspiracy. The immediate purpose and result of this combination, as we have seen, was to interfere with complainant's lawful business, and to deprive complainant and its customers of their right to trade intercourse. It matters not that the remote object of the combination was to benefit such members of the local unions as should be employed by complainant, because the law looks to the immediate, and not to the incidental, object of the combination. If the immediate object is lawful, as in the case of legitimate trade competition, including strikes, the combination, generally speaking, is lawful. This distinction will be found in the cases cited.

That no physical coercion was practiced in this case does not alter our conclusion, since restraint of the mind, as the evidence in this case clearly demonstrates, is just as potent as a threat of physical violence. Barr v. Essex Trades Council, and Purvis v. Local No. 500, U. B. C. & J., supra.

The contention is put forward that inasmuch as each member of the federation has the right to bestow his trade where he will, according to his whim or fancy, it can not be unlawful for a combination of members to do what each, acting separately, may do, and that, therefore, the combination may lawfully discontinue or threaten to discontinue business intercourse with a given firm and all who handle its product; or, to state the proposition bluntly, that the boycott, as previously defined, is lawful. To admit the soundness of this contention is to give legal support and standing to an engine of harm and oppression utterly at variance with the spirit and theory of our institutions, place the weak at the mercy of the strong, foster monopoly, permit an unwarranted interference with the natural course of trade, and deprive the citizen of the freedom guaranteed him by the Constitution.

The loss of the trade of a single individual ordinarily affects a given dealer very little. Being discriminating, the purchasing public, if left free to exercise its own judgment, will not act arbitrarily or maliciously, but will be controlled by natural considerations. But a powerful combination to boycott immediately deflects the natural course of trade, and ruin follows in its wake because of the unlawful design of the conspirators to coerce or destroy the object of their displeasure. In other words, it is the conspiracy, and not natural causes, that is responsible for the result. From

time immemorial the law has frowned upon combinations formed for the purpose of doing harm, and we think public policy demands that such a combination as we have found to exist in this case be declared unlawful. As was said by Mr. Chief Justice Fuller of a similar combination: "The combination charged falls within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes; and there is no doubt that (to quote from the well-known work of Chief Justice Early on Trade Unions) 'at common law every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction.' Loewe v. Lawlor, 208 U. S. 294, 52 L. ed. 496, 28 Sup. Ct. Rep. 301. The action in that case was brought under the Sherman Act, but the quotation given nevertheless is applicable here. In our opinion, it is more important to wage earners than to employers of labor that we declare this combination unlawful, for, if wage earners may combine to interfere with the lawful business of employers, it follows that employers may combine to coerce their employees."

Mr. Chairman and gentlemen, I think that without further quotation from authorities, it may now be taken to be established, not only that business is property, but that the liberty of contract guaranteed by the Federal Constitution not only vests in the union man the right to belong to his union, the right to quit work if his employer employs nonunion men, if he sees fit to; but it also guarantees to the nonunion man the right not to belong to a union unless he so desires. It guarantees to him the right to quit employment where union men are employed, if he sees fit to do so; and, fundamentally, and as applicable to this particular proposition and this particular bill, the authorities establish that the liberty of contract guaranteed by the Federal Constitution vests in every proprietory business owner the right to determine for himself how he will run that business for what he regards as his best interests, including the right to exclude a nonunion man, if he sees fit, the right to run an open shop, if he sees fit, or the right to run a closed shop, if he sees fit; by that I mean a shop free of union

men.

I propose to pass from the discussion of these subjects and in a few words to devote myself more directly to the specific authorities upon the subject of picketing and to say what in the outset I indicated I would say on the subject of so-called "peaceful picketing," and to indicate, Mr. Chairman, to you and the committee, perhaps only by reference to a memorandum which I may at the time ask to have filed, if you think it should be filed, showing in what States of the Union statutes exist against picketing and in what cities of the various States of the Union ordinances have been passed against picketing, and have been sustained by the courts of last resort. As to picketing, I assume that it would be more in accordance with the running of the minds of the committee if I would read the authorities rather than to give my own views on this subject.

In Goldfield Co. v. Miners' Union (159 Fed. Rep., 500)-I have no doubt that all the members of the committee know that the Federal Reports are the reports of the courts of the United States as distinguished from the State courts-said the court in this case:

Peaceful picketing in theory is not only possible but permissible, and as long as it is confined strictly and in good faith to gaining information and to peaceful persuasion and argument, it is not forbidden by law. Unfortunately, peaceful picketing is a very rare occurrence. This follows from the very nature of things. Men who want to work for an employer who is eager to employ them must be persuaded not to work-persuaded not to exercise their legal rights. In such cases, peaceable solitation is of but little effect, and when it becomes persuasion by intimidation, it is universally condemned, and has been declared unlawful in every jurisdiction when the question has been raised.