The CHAIRMAN. May I ask you, perhaps you have looked into the debates connected with the Missouri compromise. Was that predicated on the interstate-commerce clause?

Mr. KITCHIN. I have not looked at those debates for some years. The CHAIRMAN. Of course, it obviously might have been, although it was subsequently nullified.

Mr. KITCHIN. I know there was a great controversy on the question whether a man who moved into the territory could carry his slaves with him.

The CHAIRMAN. That was the Missouri compromise act. Congress then did pass legislation restricting the right of movement of slave property from one State to another.

Mr. KITCHIN. That controversy did not involve the commerce clause we are now considering. But the fact that none of those statesmen ever urged this mild way of limiting the evils of slave labor by forbidding the exports of its products to other States is a circumstance indicating that they did not think such power existed. Can you think the Union would have been formed if the Southern States had thought the power to exclude their products from interstate commerce existed in the Constitution?

In the case of Collins v. New Hampshire (171 U. S., 33), the court uses this language:

The direct and necessary result of a statute must be taken into consideration in deciding as to its validity, even if that result is not in so many words either enacted or distinctly provided for.

We have heard two days' discussion here and we have heard Members examine witnesses. The purpose of this bill is to stop children under 14 from working in certain industries in the States and to stop children up to 16 working more than eight hours a day. No man can doubt that. Now, if that is the purpose, that purpose is unconstitutional, because the Congress has no power to regulate the hours or conditions of labor in the States. In the Fifty-ninth Congress, second session, Mr. Tawney, the chairman of the Appropriations Committee in the House, had the House to pass the following resolution:

Resolved, That the Judiciary Committee be, and is hereby, directed to immediately investigate and report to the House at this session the extent of the jurisdiction and authority of Congress on the subject of woman and child labor, and to what extent and by what means Congress has authority to suppress abuses of such labor or to ameliorate conditions surrounding the employment of such laborers.

On that committee there were able lawyers. That committee through its chairman, Judge Jenkins, on February 6, 1907, presented a unanimous report. It was a long and well-considered report. Its concluding paragraph reads as follows:

The committee is of the opinion that Congress has no jurisdiction or authority over the subject of woman and child labor, and has no authority to suppress any abuses of such labor or ameliorate conditions surrounding the employment of such laborers.

My observation in life is that men with big hearts and big minds recognize the principle that where you can not do anything directly it is not right to undertake to do it by indirection.

Will this bill deprive one of his liberty or right of property?

Let me illustrate. A man in Charlotte makes cotton goods. A wholesaler in Raleigh buys $1,000 worth of those cotton goods. The wholesaler has those cotton goods in his possession. They are his property. They are all right in themselves and can do nobody any harm. He can not be deprived of his property as this bill will do. I read from a very respectable court, the Supreme Court of the State of New York:

The citizen can not be deprived of his property without due process of law. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes comes within the purview of this limitation on its power. (People v. Hawkins, 157 N. Y.)

That is common sense. In other words, if I have a horse, and the law should say I shall not use that horse, his value would be destroyed. If I have goods and you will not let me sell them, the value is destroyed. If I have goods and you will not let me send them out of the State you restrict the use, you destroy the value. It is the taking of property without due process of law. I have stated that the power of Congress over commerce between the States is unlimited except where otherwise restricted by constitution. The last expression of this was the opinion in Adams Express Co. v. Kentucky (238 U. S., 197) on the Webb-Kenyon Act, which forbade the shipment of whisky into any dry territory for the purpose of violating the law of that State. They held that if a company shipped whisky into a State for a man's individual use, when that use was not violative of law, that the company was free from any offense, as the act did not include such a case. The lawyers on the Judiciary Committee, led by Mr. Webb, of North Carolina, an able lawyer, limited that act to making the shipment unlawful where the liquor is to be used unlawfully. That is as far as they went. In that case Mr. Justice Day says:

This power (interstate commerce) is comprehensive and subject to no limitations except such as are found in the Constitution itself.

Other decisions have similar expressions that this power is unlimited except where it is otherwise restrained by the Constitution. There are no such restraints, there are no such limitations in the Constitution in regard to foreign commerce or commerce with the Indians.

The opinion in Adams Express v. Kentucky quotes this with approval from the case of Commissioners v. Campbell (133 Ky., 50):

The bill of rights which declared that among the unalienable rights possessed by citizens is that of seeking and pursuing their safety and happiness, and that the absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in the republic, not even in the largest majority, would be but an empty sound if the legislature could prohibit the citizen the right of owning and drinking liquor, when in so doing he did not offend the laws of decency by being intoxicated in public.

In Gibbons v. Ogden (9 Wheaton, 1-194), in discussing this very power, the court says:

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than as prescribed in the Constitution.

Gentlemen, that great decision held that that power was complete except where otherwise limited in the Constitution, just as the last case on the subject that was decided last year.

Now let me emphasize my former contention that the true rule is that if any article be good, sound, and free from fraud or adulteration when it leaves the manufacturer and when it enters commerce, Congress can not forbid it interstate-commerce privileges. These pure articles are distinguished from other articles which Congress can control because they are deleterious in themselves.

Wilson v. The United States (232 U. S., 567) says that the white-slave act has the quality of a police regulation, although enacted under the power to regulate commerce. Police regulations, if such they be, in interstate commerce are to keep the channels of trade pure. It will not let anything pass over the border that is impure, unsound, harmful, false, or immoral. Congress has the power to pass laws keeping out those things. If it be a police power, it is limited to interstate commerce and can not apply to manufacture.

That body (Congress) has the right not only to pass laws which shall regulate legitimate commerce among the States and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit and harmful articles, to make such as are injurious to the public health outlaws of such commerce, and to bar them from the facilities and privileges thereof. (McDermott v. Wisconsin, 228 U. S., 128.)

What kind are you going to make outlaw? Sound and perfect goods made by women and children? No; you make outlaws of commerce such as are injurious to the public health, when transported to another State.

The general rules to be deduced from the decisions of the courts is that a lawful article of commerce can not be wholly excluded from importation into a State from another State in which it was manufactured or grown. (Schollenberger v. Pennsylvania, 171 U. S., 12.)

And again it says:

The bad article may be prohibited, but not the pure and healthy one.
That case involved the validity of a State statute.

Mr. SUMNERS. In that construction had the State undertaken to interfere with the importation of articles from another State? Mr. KITCHIN. Yes, sir; it was an oleomargarine case.

In Hoke v. The United States, which is a white-slave case (227 U. S., 308), the court, through Mr. Justice McKenna, said:

The contentions (that is, against the white-slave act) confound things important to be distinguished. It urges a right to be exercised in morality to sustain a right to be exercised in immorality.

* * *

* *

*

It is the right given for beneficial exercise which is attempted to be perverted to and justify baneful exercise as in the instance stated. Let an article be debased by adulteration, let it be misrepresented by false branding, and Congress may exercise its prohibitive power.

Isn't that a clear intimation that there must be something wrong with the article before Congress can prohibit it? Let it be misbranded, or adulterated, or let it mislead and deceive, or corrupt and injure the morals or health of the people at its destination and Congress can prohibit it going across the State line. Why have the courts in all these cases, from the Lottery case down, given reasons showing that the article is wrong, and commits damage, immorality, and injury? Why should the Supreme Court show those things in every case, when, if the power is arbitrary, as Senator

22508--16-10

Beveridge argued in the Senate a few years ago, it could just say that Congress has the arbitrary power, and you can not question it? Do you think Congress has a power under this clause that the courts can not question? If the power is arbitrary, the courts can not question it. If it is the same as it has over foreign commerce, subject to treaties, the courts can not question it.

Judson on Interstate Commerce (pp. 106-107) has the view that Congress can prohibit in interstate commerce a specific of traffic that is deemed injurious and dangerous to the public health or morals. To the same effect is Ruling Case Law, volume 5, page 811. Again, in all these cases the prohibited articles have a bad effect at the end of their journey, and the court says that Congress can say that such deleterious articles shall not use the instrumentalities of interstate commerce. Cotton goods are not deleterious or injurious in themselves, but when made by women or children are just as sound, just as sanitary, just as valuable, just as harmless as goods made by 30-year-old men. Congress can rid the channel of interstate commerce of diseased cattle, misbranded goods, adulterated goods-they are bad. You look at cotton goods, put the microscope on it, put the yardstick and pound measure on it, and test it in every known way, and you find it pure. The Congress can not prohibit it, because it can do no harm where it goes, without violating its owner's guaranteed rights.

Now, Mr. Chairman, I wish to cite some authorities upon this particular legal proposition.

Ex-President William H. Taft, in his book on Popular Government, which contains his Yale lectures, said (pp. 142, ̊143):

Bills have been urged upon Congress to forbid interstate commerce in goods made by child labor. Such proposed legislation has failed chiefly because it was thought beyond the Federal power. The distinction between the power exercised in enacting the pure-food bill and that which would have been necessary in the case of the child-labor bill is that Congress in the former is only preventing interstate commerce from being a vehicle for conveyance of something which would be injurious to people at its destination, and it might properly decline to permit the use of interstate commerce for that detrimental result. In the latter case Congress would be using its regulative power of interstate commerce not to effect any result of interstate commerce. Aricles made by child labor are presumably as good and useful as articles made by adults. The proposed law is to be enforced to discourage the making of articles by child labor in the State from which the articles were shipped. In other words, it seeks indirectly and by duress to compel the States to pass a certain kind of legislation that is completely within their discretion to enact or not. Child labor in the State of the shipment has no legitimate or germane relation to the interstate commerce of which the goods thus made are to form a part, to its character or to its effect. Such an attempt of Congress to use its power of regulating such commerce to suppress the use of child labor in the State of shipment would be a clear usurpation of that State's rights.

Mr. NOLAN. May I ask a question right here? President Taft vetoed the Webb-Kenyon bill on the ground it was unconstitutional, didn't he?

Mr. KITCHIN. I do not know. Perhaps he did. If you state it, it is true.

Mr. NOLAN. It was passed over his veto. That is the very bill which was sustained by the Supreme Court of the United States, in part.

Mr. KITCHIN. You may be correct about it, but is there a statement there which is not literally true, unless it be the one in which he says "the proposed law seeks indirectly by duress to compel the

States to pass a certain kind of legislation"? It may be argued it does not seek to compel the States to pass it, but it just compels manufacturers without any State law. I will state that, however that may be, the Supreme Court decision does not conflict with what he states.

Mr. NOLAN. I think he vetoed the Webb-Kenyon bill on the ground that it was unconstitutional, and in part it has been sustained by a legal decision of the Supreme Court that you quoted a few minutes ago.

Mr. KITCHIN. It has been. The decision was that the act did not apply to the facts in that case. If he was wrong upon that particular matter, it would not show he is wrong in his book, but it would perhaps weaken his authority on that.

Mr. NOLAN. That is the point I made. You are using the former President as a high authority, and in one instance the Supreme Court decision in at least a portion of the act his reasoning was not held to be sound.

Mr. KITCHIN. But the reasons given do not conflict with President Taft's. He says "if it is deleterious." The Supreme Court says that act only prohibits whisky being shipped into a State to be used to violate the laws of that State, and in the case cited the whisky was not for that purpose.

Now, gentlemen, here is the fullest discussion I have found upon this particular question. It is Watson on the Constitution, published in 1910. In volume 1, beginning at page 524:

ARTICLES MADE BY WOMEN AND CHILDREN, AND TRANSPORTATION THEREOF. Closely akin to the question of regulating manufacturing is the question whether Congress can forbid the hauling of a commodity, by a carrier of interstate commerce, which was manufactured in a State, for instance, by women or children under a certain age, as has been recently maintained. This question is of far-reaching effect, and if such power exists in Congress it would result in the most complete invasion of the sovereignty of the States by the General Government, which has ever been accomplished under the Federal Constitution. Going back to Kidd v. Pearson (supra, p. 522), we find Mr. Justice Lamar using this language: "The line which separates the province of Federal authority over the regulation of commerce from the powers reserved to the States has engaged the attention of this court in a great number and variety of cases. The decisions in these cases, though they do not in a single instance assume to trace that line throughout its entire extent, or to state any rule further than to locate the line in each particular case as it arises, have almost uniformly adhered to the fundamental principles which Chief Justice Marshall, in the case of Gibbons v. Ogden (9 Wheaton, 1), laid down as to the nature and extent of the grant of power to Congress on this subject, and also of the limitations, express and implied, which it imposes upon State legislation with regard to taxation, to the control of domestic commerce, and to all persons and things within its limits of purely internal concern. "According to the theory of that great opinion the supreme authority in this country is divided between the Government of the United States, whose action extends over the whole Union but which possesses only certain powers enumerated in its written Constitution, and the separate governments of the several States, which retain all power not delegated to the Union. The power expressly conferred upon Congress to regulate cominerce is absolute and complete in itself, with no limitations other than are prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from State action; is coextensive with the subject on which it acts, and can not stop at the external boundary of a State, but must enter into the interior of every State whenever required by the interests of commerce with foreign nations or among the several States. This power, however, does not compre