Mr. RUFFIN. In the first place, the question was asked this morning as to the difference in freight. I referred to it simply to show that a bill of this character put an injustice on the southern mills, from the standpoint of earning capacity.

Senator CUMMINS. Well, then, after all, it comes back to the suggestion, whoever made it-whether you or anybody else the idea meant to be conveyed was that you must employ children there. Mr. RUFFIN. Not necessarily.

Senator CUMMINS. In order to enable you to carry on your business profitably.

Mr. RUFFIN. That was not my contention.

Senator CUMMINS. Some one must have done that.

Senator CLAPP. That was not this witness, but it was urged by some of the witnesses, that among other reasons, why they could not compete with New England on account of the advantages which New England had in freight.

Senator CUMMINS. And no one contended that you must do something bad for the child in order to enable the factory to exist? Senator CLAPP. Not at all.

Mr. RUFFIN. I have nothing further to say, gentlemen.

Mr. ROBERTS. May I make a little explanation right there?
The CHAIRMAN. Yes.

Mr. ROBERTS. In reply to Senator Cummins. He seems to have gained the impression that we are making the claim that we desire some special privileges in the working of children to offset some special advantages that other manufacturers have in New England. That is not the proposition at all. What Mr. Ruffin is trying to make clear is that you can not equalize fundamental conditions that surround these different manufacturing establishments in different parts of the United States by any law.

Senator POMERENE. Does that not go to the wisdom or unwisdom of the company in the location of the factory?

Senator CUMMINS. I was not able to see its materiality because there are many other reasons of course that might affect the cost of production aside from child labor. The cost of adult labor would have the same effect, but I could not imagine that anybody would insist that the children ought to be permitted to work simply because through their work the factory might be able to compete with some other factory. That to me would be very horrible.

Mr. ROBERTS. I quite agree with you, Senator. We covered that ground very fully yesterday in a great many aspects. We, none of us, think that we have any pecuniary advantage in the working of children. We have argued this point here from the standpoint of the inherent human rights of a person to earn a living when he needs to do so.

Senator CUMMINS. That is quite a different proposition.

Senator CLAPP. The first witness who appeared before us yesterday emphasized the fact that this was peculiarly hard on the South in competition with New England. He emphasized the advantage that New England had in the freight rates. It is in the record. There is no question about that. It was not material, still it went in.

Mr. RUFFIN. Before retiring I wish to join with Mr. Patterson, the manufacturer, in extending to you gentlemen an invitation to

visit any of the southern mills, either as a whole committee or as a part of the committee, so that you may see conditions for yourselves. Senator CUMMINS. Will you allow me to ask one more question? I unfortunately was not here this morning or at the meeting before that one. You were reading an extract when I came in this afternoon. From what book were you reading?

Mr. RUFFIN. Here it is [indicating].

Senator CUMMINS. Could you give me the title?

Mr. RUFFIN. It is "Annual Report of the Surgeon General of the Public Health and Marine Hospital Service of the United States for the fiscal year 1908."

Senator CUMMINS. I am simply trying to connect with what you were saying.

Mr. RUFFIN. Yes, sir.

Senator CUMMINS. My inquiry, or my thought is, was the extract that you were reading for the purpose of proving that it was better for the children to work in the cotton mill than to be where they probably would be if they were not working in the cotton mill? Mr. RUFFIN. Absolutely; yes, sir.

(Mr. Ruffin was thereupon excused.)

The CHAIRMAN. Gov. Kitchin, have you any other gentlemen who desire to be heard?

Mr. KITCHIN. We have no other witnesses to go upon the stand, Mr. Chairman. We wish the opportunity to file some information which we telegraphed for, namely, a compilation by the secretary of the Southern Cotton Manufacturers' Association. I suppose the other side has some evidence to offer.

Senator CLAPP. We met this afternoon principally for the purpose of hearing you, Gov. Kitchin.

Senator POMERENE. We are very anxious to hear you upon the legal proposition.

Mr. KITCHIN. I shall be glad to submit some observations. ARGUMENT OF HON. W. W. KITCHIN, OF RALEIGH, N. C.

Mr. KITCHIN. Mr. Chairman, there is a question of policy that applies to this bill, which affects not merely the southern cotton manufacturers, whose executive committee I represent, but all the industries in the country. Before proceeding with a discussion of that proposition, I wish to say, particularly to Senator Cummins, that the way the question came up with regard to freight rates was this: One witness this morning said that you could not equalize conditions, and he named among things that you could not equalize, freight and fuel. I am sure that the basis of his remark was the argument that was made on a similar bill last year, which was repeated recently in the House, that it was necessary and proper to pass this bill in order to equalize manufacturing conditions between the States that already have satisfactory child labor laws and the States that have not such laws.

This committee will give serious consideration to the question whether, even if they have the power, it is wise to adopt this legislation. It applies to the States and Territories and countries subject to the jurisdiction of the United States. The States have, of course, various natural conditions and varying climates, etc. We want you

to consider if this is not one of the things that ought to be left, regardless of your power, to the local sovereign to control, just as a matter of common sense.

It will appear to you at once that if the child can work eight hours a day in northern Maine, in some occupation, he can in southern California, in another occupation, work with as much safety and with as little harm 12 hours a day. In other words, if a boy is going to work 8 hours a day, we will say in a lumber mill or shoe factory or brickyard or any other factory where he is steadily at work during the day, he can work 10 hours a day in these spinning rooms, which have been fully explained, without any injury, on account of the lightness of the work and the favorable conditions. They are not steadily at work. They have to be around subject to the call of the foreman, where they can watch the machines, so that when the thread breaks or anything gets wrong, they can give it attention.

The question was asked, and it was a very reasonable one, if in other sections of the country or around other industries, there were not as many widows as there were around the southern cotton mills. The answer was no, that while there might be as many widows in one section of a country as in another, they were not around other industries as they are around cotton mills, and the explanation of it is that when a woman loses her husband and has to work to make a living for herself or for her children, and with her children, she would never think of going to a mine to work, especially if her children were girls. She would never think of going to a shoe factory. She would never think of going to hundreds of industries, but she knows about the cotton mill and of the good sanitary conditions under which her children work, and of the lightness of the work and the excellent compensation as compared with other work that the children could do in that community, and she is for these reasons anxious to go to the cotton mill.

There is another view. This matter was thrashed out, practically the same proposition, fully in the Senate about nine years ago when Senator Beveridge was championing the purposes of this bill, the difference being the putting of a penalty upon the interstate carrier instead of upon the manufacturer and dealer, many of the ablest lawyers in the Senate participating in the discussion. About the same time the power of Congress in such matter was referred by the House to the Judiciary Committee, and many able lawyers made thorough investigations and the House Judiciary Committee reported unanimously against the power of Congress to pass such legislation. Senator POMERENE. That is, to do what is contained in this bill? Mr. KITCHIN. Practically the same proposition was then pending and agitated in the country, the Beveridge bill, which contained the 14-year limit. It did not contain the 16-year limit, but the principle is exactly the same. It put a penalty for transporting goods, made by children under 14 years, upon the transportation companies, while this bill includes the 16-year eight-hour provision, as well as the 14-year minimum age limit, and puts the penalty upon the manufacturers and dealers. So in principle it is substantially the same bill. Now, after that time I think the country generally believed that the matter was settled. But nearly all things that have a good purpose in them live. There are always good people, and they can find

backing to have any worthy purpose agitated, whether it is a practical matter or a wise matter or not. I am glad to say in most instances these great agitations have been wise. But if this bill is passed, waiving the doubtful authority for it, I would predict that within five years there will be pressed, and vigorously pressed, upon Congress a proposition to prevent the transportation in interstate commerce of any goods made by any labor over eight hours a day. I will not say that it will thereafter be followed by bills for reducing the hours to six or five. I do not think it is an extravagant prediction to say that you will have to meet a proposition to bar from interstate commerce all goods not made by organized labor, because I take it you gentlemen do not doubt that organized labor is worthy and good, and, in order to emphasize the benefits of their organizations, I take it that you may anticipate that kind of agitation. I am not saying that it is either wise or unwise.

There is great demand for universal education. Why may you not some time in the future expect a proposition to be pressed upon Congress to use the interstate commerce clause in behalf of education by preventing in interstate commerce goods made by people who have not passed through the schools or through a certain grade? You could enforce suffrage in that manner. In fact, gentlemen, if this bill passes it opens wide the door for pressure upon Congress for all sorts of remedies through the National Government in matters that are purely State affairs.

So I submit, as a matter of policy, it is unwise. I am to discuss, however, particularly what I conceive to be the unconstitutionality of this proposition.

You are familiar, of course, with the constitutional provision that gives the Congress the power to regulate commerce with foreign nations, among the States, and with the Indian tribes. I am familiar with the utterances which say that that authority is complete and comprehensive. But, gentlemen, I have examined the decisions and I am going to ask you to believe that when Mr. Chief Justice Marshall put in the case of Gibbons v. Ogden (9 Wheat.) the statement that the power over commerce between the States "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations," he added, "other than as prescribed in the Constitution," he emphasized that in the Constitution there are limitations upon the power over commerce between the States. Mr. Justice Harlan, in the One hundred and eighty-eighth United States, in the Lottery cases, in discussing this power, says that "although plenary can not be deemed arbitrary, since it is subject to such limitations or restrictions as are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument."

The Addystone-Pipe case (175 U. S., 211) refers to Gibbons v. Ogden as holding this power is complete in itself and acknowledges "no limitations other than are prescribed in the Constitution."

In Adams Express Co. v. Kentucky (238 U. S., 197) the court says: "This power (interstate commerce) is comprehensive and subject to no limitations except such as are found in the Constitution itself." This case was under the Webb-Kenyon law.

Now, Mr. Chairman, I am compelled to give some faith to those expressions. When the courts use the words "comprehensive" and

"plenary," I think you will find that they have been used in cases where the court found that Congress had jurisdiction over the subject matter. If it has power, then it has plenary and unlimited power. But the courts have never held that this power covers everything.

But you are already asking what are the restrictions in the Constitution upon this power. So far as the Indian tribes are concerned, I know of no restriction. That is absolute-the power of regulating commerce with Indian tribes. As far as the foreign commerce is concerned, the Constitution had one specific restriction, that Congress should pass no law prohibiting the migration or importation of such persons as any of the States thought proper to admit until the year

1808.

Every nation has an inherent sovereignty over foreign trade, and the Constitution intended to confer on Congress unlimited power over such trade only qualified by other parts of the Constitution. No citizen or subject has any right to foreign trade except as permitted by his sovereign. Under the principles applying to independent nations, they fix the terms of foreign intersource, and to limit it in any way in our country a restraint in the Constitution was essential. In a free country citizens have an inherent right to trade in lawful articles among themselves. With the exception of the 1808 limitation touching slavery and the treaties made by virtue of the Constitution, there is no limitation on Congress over foreign articles. You can deport a foreigner from the United States. You can not deport an American citizen. You can forbid the importation into this country of any particular article from any particular country unless a treaty forbids.

Now, the question is whether you have that power over the commerce between the States; whether Congress has the power among the States to forbid wheat from Minnesota to go into the State of Illinois. You can forbid-if there is no treaty that prohibits-the wheat of Manitoba from going into Illinois, but can you prohibit sound wheat from one State to another?

One restriction or limitation of the power of Congress over interstate commerce, is contained in the fifth amendment to the Constitution. The first ten amendments were adopted as restrictions and limitations on the Constitution and were intended to further guarantee the rights of the people. If there is any difference between those amendments and any clause of the original Constitution, the amendments should prevail.

The fifth amendment, and this is the clause I want to discuss, contains this expression, in substance, that no person shall be deprived of life, liberty, or property without due process of law. The main question that will arise for your consideration is whether a man who owns goods all right in themselves made by children working under 16 years of age more than 8 hours a day, has the right to ship those goods into another State for a lawful purpose, and if he has that right, whether it is a guaranteed right under the fifth amendment?

In my opinion a man has the absolute right to deal within the bounds of the Nation, in all legitimate, helpful, and fair commerce, which is not misbranded, not immoral, not fraudulent, not impure, and that Congress has no rightful power to deprive him of that right. In Coppage v. Kansas (236 U. S.) the Supreme Court held void a law of Kansas under which Kansas undertook to forbid employers

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