SEC. 3. That no court of the United States or of any State or Territory or of the District of Columbia shall grant injunctive relief or exercise the equity power in any manner or form so as to interfere with, limit, or restrict, directly or indirectly, the exercise of any of the rights or privileges enumerated in section 1 of this act.

SEC. 4. That no court of the United States shall issue any restraining order or temporary or permanent injunction in any case upon the ground that the doing in concert of any of the acts enumerated in section 1 of this act constitutes an unlawful combination or conspiracy.

SEC. 5. That every agreement the effect of which would be to prohibit, as a condition of employment or of continuance in employment, (1) membership in or affiliation with any organization having for its object the improvement of working conditions, the regulation of wages and/or hours of labor, collective bargaining, and/or the taking of concerted action for these or kindred purposes; and/or (2) the exercise of any of the rights enumerated in section 1 of this act, is hereby declared to be contrary to public policy and void.

SEC. 6. That no court of the United States or of any State or Territory or of the District of Columbia shall enforce, by any legal or equitable process, any agreement or portion thereof declared contrary to public policy and void by section 5 of this act.

SEC. 7. That no court of the United States shall issue any restraining order or temporary or permanent injunction to prevent interference with any alleged right in the proprietor of a business to the continued patronage of such business, except as against a person who is under a valid contract not to interfere with such patronage.

SEC. 8. Any provision of the Sherman Act of July 2, 1890 (26 Stat. 209), the Clayton Act of October 15, 1914 (38 Stat. 730), or any other act of Congress inconsistent with the provisions of this act, is hereby, to the extent of such inconsistency, repealed.

SEC. 9. If any provision of this act, or the application thereof to any person or circumstances, shall be held invalid, the remainder of the act, and the application of such provision to other persons or circumstances, shall not be affected thereby. This proposed measure rests upon two distinct propositions-one of fact, the other of law.

The proposition of fact.-A condition of involuntary servitude, referred to in the preamble, exists in many of the large industries of the United States. Great corporations preempt almost the entire field of activity in the particular industry they are engaged in. They dominate the affairs and concerns of those engaged in that particular field. They resort to the use of the injunction to assist in maintaining their control. These corporations, with the aid of other corporations of a similar kind, and of the banks and allied interests, commonly dictate the terms and business conditions prevailing in their particular field.

To obtain employment in these industries, one has to accept the wage and terms of employment offered. It is idle to say that in a contract of employment under such circumstances the employee exercises freedom of contract, or that there is genuine mutuality in such agreements. We disregard the facts of life if we say that the workers in these highly specialized industries, controlled by huge financial interests, have any genuine freedom of expression or any real influence in fixing the terms of their employment.

The concentration of great wealth in the development of any one field of human endeavor, through the agency of holding companies and subsidiary concerns and other devices, makes it possible for a small group of men to arbitrarily prescribe the basis and control the terms and conditions of employment in that field. The workers are forced by economic necessity to accept employment on the terms offered, and are powerless to make the slightest change in their wages or working conditions.

In this situation, only united action on the part of the employees can give even a semblance of equality. It is out of this economic necessity that labor unions have sprung; and the essential fairness of such united action, as a means of securing that equality which is fundamental in our constitutional government, has been recognized by the Supreme Court; e. g., in American Foundries v. Tri-City Council, the court declared through Chief Justice Taft (257 U. Š. 184, 209):

Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious.

The dominating position of the employer and his control over his employees is greatly strengthened by the use of yellow-dog contracts such as were sustained in the Hitchman Coal Co. case. These contracts prohibit, as an absolute condition of employment or continuance in employment, any association of employees for mutual protection other than is expressly authorized by the employer. In case any employee attempts to join a real labor organization of any kind, he is immediately deprived of any effective power to earn a livelihood, and in many cases he and his family are summarily ejected from the employer-owned cottages in which they live their colorless lives. (See Red Jacket Consolidated Coal & Coke Co. v. Lewis, 18 Fed. (2 ed.) 839.) Under such conditions, it is clear that the worker is in a position of absolute helplessness, completely at the mercy of the employer.

The proposition of law is that, where men are employed and required by their circumstances of life to labor under conditions such as those set forth above, there exists a condition of involuntary servitude which is prohibited by the thirteenth amendment.

That involuntary servitude is a status broader and more far-reaching than mere African slavery is clear by the terms of the thirteenth amendment. This amendment undoubtedly operates by implication as a repeal of the fifth amendment, in so far as any property in a human being was recognized by that amendment. The fifth amendment was proposed by the First Congress in 1789, and ratified by the States shortly thereafter. At that time slavery was not prohibited by the United States Constitution. The fifth amendment, passed as a part of the bill of rights, recognized the property of the free white man in the black man and in the poor white bound to contract service. Imprisonment in the common jail for debt was an every-day occurrence. The purchase of the creditor's contract with the contract laborer and the right to exact payment by continued labor was a recognized institution. All the well-known forms of servitude,

peonage, and contract debt, together with African slavery, gave rise to property rights which were protected by the amendment in the same manner as other personal property. They were, in fact, varieties of personal property, with all the attributes of ownership common to personal property of a physical material sort.

This concept of property prevailed until the emancipation proclamation during the Civil War, and the adoption of the thirteenth amendment immediately thereafter. So firmly established was this concept of property that the Supreme Court of the United States in the Dred Scott case held that Dred Scott did not become a free man when his master took him into the free State of Illinois and established his residence there; that he had the right to take him, along with his other property, into Illinois; and that his ownership was not in the least affected. Dred Scott was not a citizen, not a free man, but property, the ownership of which the fifth amendment would protect.

The fifth amendment was amended so as to exclude the notion of any property right in a human being by the adoption of the thirteenth amendment. Since the adoption of the thirteenth amendment there has been in the United States no property in a human being. The notion that human service is property can no longer be maintained.

Property under the law has a fixed and definite quality. The police power of the State may control or regulate it. It is subject to the rights of eminent domain and of taxation, and must respond to the lawful demands which organized society makes upon it, but its high quality of property remains unchanged. Labor is to be distinguished from the fruits or products of labor. The God-given qualities of man, with his will to do, with his power and faculty of imagination and creation, his right to life, liberty and property under the Bill of Rights of William and Mary, under the Declaration of Independence, under the thirteenth amendment, and under the ethical and spiritual concepts of organized society in the Christian world of to-day, all unite to establish definitely this simple proposition-the labor of a human being is not property which can now be protected by the fifth amendment. The thirteenth amendment prohibits this.

Therefore any labor condition which is tantamount to involuntary servitude is within the prohibition of the thirteenth amendment, and subject to direct prohibition by Congress under section 2 of that amendment.

All other legal principles, axioms, and maxims, all legal, moral, or ethical considerations, and all former inconsistent provisions of the United States Constitution or the first 12 amendments must yield obedience to this higher command-neither slavery nor involuntary servitude shall longer exist.

Prior to the introduction of Senator Shipstead's bill relief had been sought in legislation designed specifically to limit the issuance of injunctions in labor disputes. Senator Shipstead's bill, on the other hand, proceeded upon the theory that the trouble lay in the definition of the "property which is entitled to protection under the fifth amendment. "Property" under the fifth amendment, as developed by a long line of cases, has come to include not only tangible and transferable property but the intangible rights supposed to arise from contracts of employment, in spite of the declaration in section 6 of the Clayton Act (38 Stat. 731) that the "labor of a human being is

not a commodity or article of commerce." The fifth amendment has thus stood as a bulwark against efforts to limit the issue of injunctions; and Senator Shipstead's bill was rejected by the subcommittee substantially on the ground that it would withdraw from this extended sort of property a type of relief hitherto enjoyed. But if, out of the relationship of employer and employee, a condition of involuntary servitude results, then the property rights protected by the fifth amendment must yield to the protection of human freedom announced and guaranteed by the thirteenth amendment.

And, after all, isn't this all that the proponents of the measure seek? They aren't concerned with the property aspect of a contract of employment nor with the remedies for a breach on either side considered as a simple chose in action. It is the effect of the labor contract in the great industries which is to be considered in the effort to grant or withhold in respect to such contracts or relationships, the right to enjoin laborers from combining for their economic protection. The fifth amendment furnishes the employer ample protection in such relationships. The thirteenth should similarly furnish to employees the relief which has been denied by the courts by reason of the operation of the fifth amendment and the definitions by which the courts take the economic relationship of employer and employee under their control.

The bill proposed in lieu of the substitute thus reaches the result which Senator Shipstead attempted to reach by the definition of property. This bill, although making what we regard as a permissible classification with respect to labor, places the whole subject squarely under the thirteenth amendment. And the relief sought for herein, when applied to a condition in the industrial world where involuntary servitude does in fact exist, is clearly within the power of Congress to grant.

The second section of the thirteenth amendment gives Congress power by "appropriate legislation" to carry out the provisions of the amendment prohibiting involuntary servitude. Under this section, Congress clearly has a broad discretion in determining the exact scope of necessary legislation. There must, of course, be a reasonable relation to the constitutional grant of power, to justify a statutory prohibition. But what constitutes such a reasonable relation is a matter of legislative, not judicial, determination. This is common doctrine, well stated in Rose v. U. S. (274 Fed. 245):

Unless the enactment has no substantial relation to the enforcement of the constitutional prohibition, * * * the court has no power to determine the wisdom of the enactment or challenge the manner of the exercise by Congress of the authority and discretion confided to it by the second section of this (eighteenth) constitutional amendment.

In the preamble of the proposed bill, Congress declares as a matter of fact within the information of Congress, that certain conditions in modern industry amount to involuntary servitude. This declaration is no part of the law proposed, but it can not be ignored in the interpretation of that law. It establishes, beyond the proper scope of judicial authority to question, a foundation based upon the actual facts and conditions of modern life; it demonstrates that in the opinion of Congress the time has come for the legislative policy of the United States to keep step with economic development.

The Constitution nowhere defines "involuntary servitude," but the Supreme Court has clearly and definitely exploded the notion that it is confined strictly to some set and definite system of slavery or peonage. In Bailey v. Alabama (219 U. S. 219, 240) the court, speaking through Mr. Justice, now Chief Justice, Hughes, declared:

* While

The language of the thirteenth amendment was not new. the immediate concern was with African slavery, the amendment was not limited to that. It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag. The words involuntary servitude have a "larger meaning than slavery. * * * The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude.

The power of Congress to "enforce" the thirteenth amendment must therefore, in the nature of things, involve a proper discretion as to the ultimate meaning and scope of the term "involuntary servitude." It must have power to determine how far conditions likely to give rise to involuntary servitude must themselves be prevented, in order to secure the freedom intended by the amendment. No better instance of such necessary incidental discretion can be found than in the case of the eighteenth amendment. The language of the amendment is very similar to that of the thirteenth

The Congress shall have * legislation.

power to enforce this article by appropriate

and the subject thus entrusted to the legislative control of Congress, was, as in the thirteenth amendment, undefined in the amendment itself. In pursuance of this power, Congress, in the Volstead Act, set a limit to the scope of its regulatory legislation which has been strongly criticized as in fact beyond the intent of the term used in the amendment; it flatly declared that beverages containing one-half of 1 per cent alcohol should be subject to the constitutional prohibition against intoxicating liquor. But the Supreme Court held, in Ruppert v. Caffey (251 U. S. 264, 298):

It is therefore clear both that Congress might reasonably have considered some legislative definition of intoxicating liquor to be essential to effective enforcement of prohibition and also that the definition provided by the Volstead Act was not an arbitrary one.

Surely on the authority of the Ruppert case it is within the power of Congress to determine what industrial conditions are likely to give rise to a condition of involuntary servitude, and to prohibit such conditions as a violation of the thirteenth amendment.

And it has been stated by the Supreme Court in Purity Extract Co. v. Lynch (226 U. S. 192):

It does not follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the Government.

The bill proposed in lieu of the substitute bill provides in direct terms that employees may combine and unite for their protection in labor disputes. It specifically legalizes concerted action. It condemns in express terms the yellow-dog contract. It denies injunctive relief in