hend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State."

This opinion was followed by that of Chief Justice Fuller in United States v. Knight Company, where (p. 11), he said: "The fundamental question is whether, conceding that the existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of Congress in the mode attempted by this bill.

"The argument is (p. 12) that the power to control the manufacture of refined sugar is a monopoly over a necessary of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensible, and that therefore the General Government, in the exercise of the power to regulate commerce, may repress such monopoly directly and set aside the instruments which have created it. But this argument can not be confined to necessaries of life merely, and must include all articles of general consump tion. Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly. But it may operate in repression of monopoly whenever that comes within the rules by which commerce is governed or whenever the transaction is itself a monopoly of commerce.

"It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however, sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowl edged evils, however grave and urgent they may appear to be, had better be borne than the risk to be run in the effort to suppress them of more serious consequences by resort to expedients of even doubtful constitutionality."

It will be perceived how far-reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the General Government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce and not to matters of internal police. Contracts to buy, sell, or exchange goods to be transported among the several States, the transportation and its instrumentalities, and articles bought and sold, or exchanged for the purposes of such transit among the States, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce.

And right there, let me say that there is this difference. It reminds me of the power to regulate commerce and the power over mails. The Constitution gives Congress the right to regulate interstate commerce, and, as these judges say, except where otherwise restrained, it is unlimited. Congress gave the United States power to establish post offices and post roads, and the courts have held that Congress, having the power to establish post offices and post roads, can exclude anybody else from doing it, considering that an exclusive Federal matter. There have been cases that have held that Congress can forbid any kind of matter from the mails. That is in the discretion of the Congress, because Congress was the sole creator of the post office. Reading from Watson on the Constitution:

The question was also fully considered by Mr. Justice Jackson (In re Greene, 52 Fed. Rep., 112, 113) as follows: "Congress may place restrictions and limita tions upon the right of corporations created and organized under its authority to acquire, use, and dispose of property. It may also impose such restrictions and limitations upon the citizen in respect to the exercise of a public privilege

or franchise conferred by the United States. But Congress certainly has not the power or authority under the commerce clause or any other provision of the Constitution to limit and restrict the right of corporations created by the States, or the citizens of the States, in the acquisition, control, and disposition of property. Neither can Congress regulate or prescribe the price or prices at which such property, or the products thereof, shall be sold by the owner or owners, whether corporations or individuals. It is equally clear that Congress has no jurisdiction over, and can not make criminal, the aims, purposes, and intentions of persons in the acquisition and control of property which the States of their residence or creation sanction and permit. It is not material that such property, or the products thereof, may become the subject of trade or commerce among the several States or with foreign nations. Commerce among the States, within the exclusive regulating power of Congress, consists of intercourse and traffic between their citizens, and includes the transportation of persons and property as well as the purchase, sale, and exchange of commodities.

6

I will not take the trouble to read all of that, gentlemen. It proceeds to discuss where commerce begins and ends. I now read what it says about the lottery:

These opinions have been quoted from at length because they bear directly upon the different phases of the power of Congress in its relation to State manufacturing establishments. In some cases the courts have sustained statutes which prohibited the transportation of certain commodities, notably the early cases involving embargo acts, reported in 7 Cranch, 52 and 100. So from those early decisions down to the decision in the lottery cases, the courts have, from time to time, sustained the validity of legislation which prohibited the doing of certain things, but upon close inspection of the legislation which has been sustained, it will be found that the prohibition was enacted because of some special peculiarity of the commodity; in other words, there seemed to be some particular reason why that particular article should not be transported as an article of interstate commerce. The great case in which the question was most thoroughly considered was the lottery case, where Mr. Justice Harlan, delivering the opinion of the majority of the court, said (p. 358): "That regulation may sometimes appropriately assume the form of prohibition is illustrated by the case of diseased cattle transported from one State to another. Such cattle may have, notwithstanding their condition, a value in money for some purposes, and yet it can not be doubted that Congress, under its power to regulate commerce, may either provide for their being inspected before transportation begins or in its discretion may prohibit them being transported from one State to another." Mr. Justice Harlan also said in the course of his opinion (p. 356): "What provision in the Constitution can be regarded as limiting the exercise of the power granted? What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one State to another that which will harm the public morals? We can not think of any clause of that instrument that could possibly be invoked by those who assert their right to send lottery tickets from State to State except the one providing that no person shall be deprived of his liberty without due process of law. We have said that the liberty protected by the Constitution embraces the right to be free in the enjoyment of one's faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts that may be proper." (Allgeyer v. Louisiana, 165 U. S., 578, 589.) But surely it will not be said to be a part of anyone's liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to the public morals.

Mr. LONDON. At this point I assume that you consider the pure food and drug act constitutional?

Mr. KITCHIN. Yes, sir.

Mr. LONDON. On the theory that the National Legislature has a right to declare a certain national code of morality for the guidance of the commercial world?

Mr. KITCHIN. On the ground of their impurities and misbranding.

Mr. LONDON. Exactly, and declare a certain code of morality for the guidance of the world.

Mr. KITCHIN. That is a code of morality that is universal. Congress does not establish the morality.

Mr. LONDON. Exactly. Now, assume that the present Congress looks upon child labor as immoral. Have we a right to invoke the power?

Mr. KITCHIN. You would have a right to, if you take that view, provided the children are engaged in interstate commerce.

Mr. LONDON. We would have that right?

Mr. KITCHIN. You would have that right. You would not have the right to go down into any State and forbid the working of children in that State.

Mr. LONDON. But this law seeks to forbid the import.

Mr. KITCHIN. That is a point I have been arguing. You would have to convince the courts that the goods themselves were impure, immoral, harmful, or injurious.

Mr. LONDON. Don't we speak of the act of exploiting the child as immoral?

Mr. KITCHIN. That is exactly what you can not do, according to these authorities, in my judgment. If so, where are the limits of the Constitution; I believe you are a lawyer?

Mr. LONDON. I am.

Mr. KITCHEN. Can you then conceive of any limitation on this power? You can not under your theory, and Judge Harlan says there are limitations in that very lottery case. And in this case he said that a man could not be allowed to introduce in the commerce among the States an element that would confessedly be injurious to the public morals:

It will be observed that the court did not decide that Congress could prohibit generally the transportation of commodities. This it declined to do, but it is claimed

Continues the decision

that if, in order to suppress lotteries carried on through interstate commerce, Congress may exclude lottery tickets from such commerce, that principle leads necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the States any article, commodity, or thing, of whatever kind or nature, or however useful or valuable.

Mr. LONDON. What page are you reading from? I have that textbook.

Mr. KITCHIN. Five hundred and twenty-nine-from the lottery decision. This was the argument:

That principle leads necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the States any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one State to another. It will be time enough to consider the constitutionaliy of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the States. We may, however, repeat, in this connection, what the court has heretofore said, that the power of congress to regulate commerce among the States, 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.

This is still Judge Harlan :

It would not be difficult to imagine legislation that would be justly liable to such an objection as that stated and be hostile to the objects for the accomplishment of which Congress was invested with the general power to regulate commerce among the several States. But, as often said, the possible abuse of a power is not an argument against its existence. There is probably no governmental power that may not be exerted to the injury of the public. If what is done by Congress is manifestly in excess of the powers granted to it, then upon the courts will rest the duty of adjudging that its action is neither legal or binding upon the people.

In other words, if that is one of the reserved rights, one of the guaranteed rights, of the people, then the courts will interfere if Congress tries to control it. If not, then the courts will not interfere, and it will depend upon the Congress to take such action as they see fit.

He then states that if action is merely unwise or injurious it is a matter for the people to remedy through Congress.

I read now from page 531:

Has Congress, under the power to regulate commerce, the power arbitrarily to deprive individuals or commercial agencies of the exercise of a privilege which is necessarily inherent in the right of citizenship and the right of transacting business? The Federal Constitution will enforce rights which the citizens of this country are entitled to have, exercise, and enjoy rather than destroy them. These rights are beyond the Constitution, not subject to it. They were here before our Constitution was framed. The Constitution was framed that the people might better be protected in their rights, not that their rights should be destroyed. This doctrine finds support in the opinion of Chief Justice Waite, in Bowman v. Chicago & North Western Railway Company (115 U. S., 611), in which the Chief Justice said (p. 615): “The alleged right of which these plaintiffs have been deprived is one secured to them, if secured at all, not by the Constitution, but by that principle of general law which requires a common carrier of goods for hire, to carry, whenever he is asked to do so, within the general scope of his professional business and for a reasonable reward. It grows out of the duty which, in law, a common carrier owes to the public at large, and is no more secured by the Constitution than are any other of the ordinary transactions of business. The question is not, therefore, whether the plaintiffs have been deprived of a right which the Constitution has secured to them, but whether a right existing without the Constitution has been lawfully taken away."

The commerce clause refutes the idea that Congress can prohibit the transportation of an innocuous article by an interstate carrier. The power to regulate necessarily implies the existence of the thing to be regulated. The word "regulate" does not mean to prohibit.

The courts have held that in some instances regulation may take form of prohibition as in the lottery cases and upon other deleterious subjects.

I read the author's concluding paragraph on the matter:

There is no power in Congress to control the manufacture of goods in the States destined for interstate or foreign commerce, and consequently Congress is unable to control the labor of persons engaged in manufacturing products in the States which are intended for interstate or foreign business. Such regulations are left to the State. The power to make such regulations resided there before the Constitution was adopted, or the Union was formed, and it was not surrendered by the States to the General Government.

I read from Prof. Willoughby on the Constitution. I noticed in reading the hearings and briefs on the other side it was stated that Prof. Willoughby had in one respect modified his position, and I think that is true. I am going to read you his article for its reasoning, even if he has modified his position.

Mr. LONDON. Is that from his recent book (1910) of two volumes? Mr. KITCHIN. That is the one I am talking about, Willoughby on the Constitution, volume 2, section 348:

The possible application of the doctrine laid down in the lottery case is excellently exemplified in an attempt that has been made relying upon it to support the constitutionality of a Federal law excluding from interstate commerce articles to the production of which child labor has contributed. The enactment of a bill to the effect has been especially championed in the United States Senate by Mr. Beveridge, of Indiana.

The main difference between that bill and the one you are considering is that that bill wanted to punish the carrier for transporting or receiving the products of child labor, and this one puts the penalty on the manufacturer.

This proposed law provides that, under heavy penalties, “no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine in which children under 14 years of age are employed or permitted to work, which products are offered to said interstate carriers by the firm, person, or corporation operating said factory or mine, or any officer or agent or servant thereof, for transportation into any other State or Territory than the one in which said factory or mine is located."

There has been no concealment, and, indeed, the bill bears sufficient evidence upon its face of the fact that the purpose of the law is rather a regulation of the manner in which certain goods are manufactured or produced than of their transportation across State lines.

The bill is thus a police measure in exactly the same sense that the pure food and lottery acts are. But there is a difference between it and them—a difference which possibly will be held controlling. Lottery tickets are, in themselves, the contracts of an undertaking which is very generally regarded as a morally and economically harmful one, and impure foods are, in themselves, harmful to those receiving and consuming them. After the process of manufacture is completed, harm is, therefore, done by the transportation and use of impure foods and lottery tickets, and it is, therefore, arguable that a law prohibiting or regulating their transportation as articles of interstate commerce is a legitimate exercise of the power granted to the General Government to regulate commerce among the States; that is, is an exercise of that power for the advantage of the citizens of the several States.

As to articles manufactured or produced in factories or mines employing children under 14 years of age, however, the foregoing does not hold true. Whatever injury is done by the employment of children in factories or mines is done when the articles are in process of manufacture or production, and over this manufacturing or mining the Federal Government has, under the commerce clause, no control whatever. Except possibly in the rarest instances, goods produced in factories or mines employing children do not differ in character from those produced in factories or mines not employing such labor. Once produced there is, therefore, no harm done to anyone, whether by way of deceit or injury to the health, by the sale and consumption of these goods so produced. There can not, therefore, be any valid argument as to the constitutionality of the proposed child-labor law upon the ground that it is a legitimate exercise of a Federal power to regulate interstate commerce, unless, indeed, one is willing to take the further step of saying that Congress has the arbitrary power to exclude from interstate commerce any commodity that it chooses independently of whether its transmission or transportation is attended by danger, or its sale by unavoidable opportunity for fraud, or its use and consumption followed by moral or physical evils. Or, if admitted to interstate commerce, that Congress may attach, as conditions precedent thereto, any requirements of production that it may see fit to impose. To grant this lastAnd that is what you are trying to do here—

is, of course, to break down entirely the distinction between the manufacture of and the interstate trade in commodities, and thus to bring within possible Federal control the entire manufacturing interests of the country.

It is plain, from what has been said, that the enactment of a measure of the character of the child-labor bill introduced in the Senate by Mr. Beveridge would