be an attempt upon the part of the Federal Government to regulate a matter reserved to the control of the States. Should the measure be limited in its operations to goods imported from foreign countries it would not, to be sure, be open to this objection, but it would still be open to the criticism that it would not be, in any sense, a regulation of commerce and therefore, if valid, the constitutional source of the power of Congress to enact it would have to be sought elsewhere than in the commerce clause.

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The cases in which it has been held that the Federal Government has a full discretionary power to exclude articles from the mails can not be used to support, by analogy, a similar power over interstate commerce. For, by the Constitution, Congress is given the exclusive power to establish post offices or post roads. The maintenance of a postal service is thus a subject over which the States have no authority. Interstate commerce is, however, a matter which is not established by the Federal Government. Its regulation, and not its creation, by the Federal Government is provided for by the Constitution. The distinction between the powers of the United States with reference to interstate commerce and those arising out of its power to establish post offices and post roads is recognized in the leading case of In re Jackson in which the court says: "We do not think that Congress possesses the power to prevent the transportation in other ways as merchandise of matter which it excludes from the mails. To give efficiency to its regulations and to prevent rival postal systems it may perhaps prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter in the sense in which those laws were used when the Constitution was adopted-consisting of letters and newspapers and pamphlets when not sent as merchandise; but further than this its powers of prohibition can not extend.”

Now, gentlemen, you have borne with me very patiently. I have gone over this matter hurriedly and given you the main reasons which we have to present. Now, evidently you are trying to do by indirection what you can not do directly. You have tried to make this bill constitutional. Those who prepared it have evidently given that phase of this matter very great consideration. Now, shall you let down the bars, even if you have the power? Is it wise to let down the bars and let the Federal Government regulate the hours of labor and regulate throughout the country what kind of labor shall be engaged, whether you require men to be educated, or whether you will exclude the products of all labor except organized labor, and if so, which branch of organized labor? Are you going to subject Congress hereafter to thousands of perhaps fruitless efforts to obtain other legislation? Shall you not, in the interests of the common good, leave this matter to the States, which are making progress so rapidly-not perhaps as rapidly as you wish, or as I wish, but they are making rapid progress when you consider the slow growth of social conditions in any country? Our people think like you do, and would think like you do under your conditions, certainly with the same training and the same environment. There is very little difference between us.

Leave it to the States. Have faith in the States. Those who tell you that a single Southern State is cruel and heartless misrepresent that fair land. Do not thus by indirection so violently encroach upon the rights of the States. Do not put the industries of the country under Federal inspection.

It is true, when you come to the legislature for any reform bill our people, like other folks, take to reforms slowly, and people probably have to knock at the doors of the legislature more than once, but in the good process of time all proper reforms are made. I do not blame the advocates of this bill who appear before you for asking you to favor it, because I know nine out of ten of them, and perhaps all of them, think they will be doing no harm to the constitution,

or do not regard it. They should look into the future, when this legislation will be set up as a precedent, if, possibly, the Supreme Court of the United States should sustain it.

The States know better what the conditions are under which the women and children work. What does a Massachusetts man know about conditions in Arizona? If you would apply this child-labor age to all sections of the country and all industries you would create an industrial standstill. I think I do not overstate it when I say one-fourth of the cotton picked in the South is picked by children under 16 years of age. I know a large quantity of it is. If you should deny export of that cotton you would paralyze the country, and the children who work in the mills are in as good condition as people who work on the farms.

We all know how kind your intentions are. If you drive these children out of the mills, they have to go on earning money, they must exist. You do not drive them into the schools. Some of them would probably loaf around. Some of them, of course, would go back to the farms, where they would eke out probably a scanty living, but without the same advantages. You do not get all your education from books-from going to school. So far as intelligence and getting information is concerned, one boy in an ordinary cotton-mill village will learn better how to take care of himself, acquit himself in company, to be a good man and a good citizen, in 12 months than out on some lonely mountain farm in two or three years.

You can not appreciate that. You gentlemen who live in great cities and in thickly populated communities, can not understand the lonesome life that many people in our agricultural communities endure.

I do not think the evil is sufficient to justify the remedy that you are going to apply, even if you have the power. If you were assured that the conditions as you conceive them are incurable, it would make us all hopeless, and we would feel like doing things desperate; but that is not the case.

Mr. SMITH. I would like to ask you a question about prison-made goods. Do you think Congress has a right to legislate as to them? Mr. KITCHIN. I doubt that exceedingly, and have tried to find something on it.

Mr. SMITH. Have you, in your investigations, found out whether oleomargarine can be prohibited because it is a deleterious article to the health of the people?

Mr. KITCHIN. No. The case (the Schollenburger case) that I read from was an oleomargarine case.

Mr. SMITH. Was that prohibited?

Mr. KITCHIN. No; that involved a State law. It declared that a State law could not put any limitations or require branding or coloring, because it was a sound and healthful product. Congress taxed colored oleomargarine under the taxing power, and that is a different proposition. They taxed it. You do not undertake to exercise this power here.

Mr. SMITH. It was not regulated because it was a deleterious product?

Mr. KITCHIN. No, sir.

Mr. SMITH. It was the branding?

Mr. KITCHIN. It was the branding or deception. The argument was that they were coloring it up and selling it as butter, and while the wholesaler and retailer might know that it was oleomargarine, the consumer did not, and it was sailing under false colors.

Mr. DENISON. I want to ask you this question on this phase of the case, and I would like to have the benefit of your judgment: Disregarding for the purpose of this question and your answer the phase that you have discussed, and conceding that Congress should have the power to enact this legislation in a proper case, do you think the fact that this statute singles out a certain class of industry or a certain class of work-arbitrarily does so-would affect its constitutionality? Mr. KITCHIN. Personally, I do not think it would. I am guided somewhat by the decisions in my own State, where we permit that to be done.

Mr. DENISON. Well, in Illinois they do not.

Mr. KITCHIN. I was going to add that I am aware that in some States they will not permit you to segregate one class and make it the subject of legislation, and that might be an argument against it, but lawyers from different States get their ideas very much from their own State decisions.

Mr. HOUSTON. I was going to ask you what you think about the constitutionality of an act preventing the shipment of convict-made goods?

Mr. KITCHIN. It has not been passed upon by the Supreme Court, but many of the States-Ohio and New York-have able opinions on that, and the justices of the Supreme Court of the State of Massachusetts in 1912 gave an opinion to the legislature on it, and that opinion of the Massachusetts Supreme Court is that the State has no right to impose any restrictions whatever upon convict-made goods from another State. The decision of the New York court was to the same effect; a very strong decision, as also was the Ohio decision.

Mr. HOUSTON. Would they come under the want of power in the States to regulate interstate commerce?

Mr. KITCHIN. Yes; but the grounds of the statutes were touching manufacture. If the article is sound and pure, in my judgment its interstate transportation could not be prevented.

Mr. HOUSTON. Without reference to the interstate commerce, it would apply to the regulations of manufactures?

Mr. KITCHIN. Yes. And if the article is sound and free from fault, I think it would be unconstitutional to bar it from other States. Mr. KEATING. Well, Massachusetts has it. Ohio has it, with the provision that they are allowed to make the goods

Mr. KITCHEN. All of those laws are valid in their own States, as to their own convict products. I want to call your attention to a most striking case, and it is a case of national interest, in which the Supreme Court of the United States would not permit a State to do by indirection what it could not do directly, and it is this Oklahoma suffrage case. I was interested in that case because several Southern States have a similar law.

Mr. COOPER. Can you tell me where I can find it?

Mr. KITCHIN. It is in 238 Supreme Court Reports. There are two cases.

Mr. COOPER. Pardon me for interrupting you again.

Mr. KITCHIN. That is all right. Oklahoma, in her constitution, has about the same provisions, similar in structure, purpose, and principle as North Carolina and one or two other Southern States. That is in effect this: That the educational qualifications for suffrage-I am not giving the language, but it provides that no man shall register and vote unless he can read and write any section of the Oklahoma constitution. Now, that is an unlimited provision for an educational qualification for suffrage. Then it provides that no man who could vote or who is a lineal descendant of a man who could vote on the 1st of January, 1866, in any State where he then lived, shall be denied the right to vote on account of failure of this educational qualification.

Now, the Federal Constitution says that no man shall be denied the right to vote on account of race, color, or previous condition of servitude. Here is a constitution which says "Well, we will make a general qualification; that is, an educational qualification. Anybody, white or black, that has that educational qualification, shall vote." It says" We will not only do that. We do not deny anybody the right to vote, but we will extend the suffrage to another class, men and the descendants of men who could vote in 1866," and not a word is said about color or race. Do you think that misled the Supreme Court of the United States? No. sir. They said “You must consider that whole constitutional provision," and the sum and substance of it, when you look at it, is to stop many men from voting because they are black. The court declared it void.

You can not regulate the hours of labor in southern cotton mills or northern cotton mills or any other manufacturing plant in this country. You know you can not regulate the working ages of children, and yet you are going to try to do that by indirection, just as Oklahoma and North Carolina and other States tried to do in regard to suffrage.

Mr. SUMNERS. May I ask you a question?

Mr. KITCHIN. Yes.

Mr. SUMNERS. Has not the Supreme Court gone a long way in permitting Congress to do things indirectly which it could not do directly? Namely, through the exercise of the taxing power?

Mr. KITCHIN. The taxing power taxed State bank notes out of existence and often foreign goods from importation.

Mr. SUMNERS. In the rendition of those opinions, did the Supreme Court undertake to differentiate between-I think you have got me; go on.

Mr. KITCHIN. My recollection is that when Congress taxed the State bank notes directly, as it did, 10 per cent, the court said that it would not look back of the act to discuss the motive of Congress. It just took it as it stood, assumed that it was taxing it for revenue purposes, and sustained the power of taxation.

Mr. SUMNERS. This occurred to me in that connection, which in part answers my own question; that is, the court declared that the power to tax carried with it the power to destroy, and it was a power given originally.

Mr. KITCHIN. That is a different power. In the tax cases I recollect that they put it on the ground that they would not go back of it, the act. In this white-slave case, Hoke v. United States, the court says that "motives are made of determining consequence,"

in the decision of cases of congressional legislation. When you read this bill you do not have to introduce any parol testimony to show that it is for the purpose of regulating labor.

Mr. DENISON. You have to get the motive from the act itself.
Mr. KITCHIN. From the act itself; yes, sir.

The CHAIRMAN. You have been very kind to the gentlemen present. I understand there is a lady who wishes to ask you a question.

Miss MORROW. I would like to ask if you meant it when you asked these ladies to come down and investigate the institutions of the South? We would be very glad to accept your invitation and have our expenses paid, provided we can go in the cotton mills to any place that we want to, and not be led to certain rooms in these mills. Mr. KITCHIN. May I ask to whom I am talking?

Miss MORROw. Miss Morrow.

Mr. KITCHIN. You certainly can. This was my idea, to have this committee or a subcommittee come and you ladies come with them. Miss MORROW. We would be very glad to come and make a report to the committee when we get back.

Mr. KITCHIN. You can not give any better report than we can. Miss MORROW. But we are not directly connected with the mills. Mr. KITCHIN. We want this committee to get first-hand information, I am sure. If you should come down and investigate, and come right back here and report, we would have to have some one else.

Miss MORROW. But you invited us with the committee.

Mr. KITCHIN. With the committee; yes.

Miss MORROW. And we would be very glad to come down and talk with the ladies down there.

Mr. KITCHIN. I take it that the committee will appoint a subcommittee, if the full committee are not going, and the proposition has been made to take you down to Norfolk and in a private car, from there take you everywhere you want to go.

Mr. PATTERSON. I am very glad that the ladies are so willing to go. I think, by accepting our invitation, the committee will probably go when otherwise they would not have gone, and their expenses will be paid.

STATEMENT OF MR. JAMES A. EMERY, COUNSEL FOR NATIONAL ASSOCIATION OF MANUFACTURERS.

Mr. EMERY. I am counsel for the National Association of Manufacturers, consisting of some 4,000 manufacturers operating in most of the States of the Union and employing in normal times substantially 2,500,000 men.

I realize that when a manufacturer or his representative appears before a committee of this character he is embarrassed by possibly the suspicion or suggestion that, because he is opposed to a particular mode of regulation he is opposed to the subject matter of the regulation, or any regulation of the subject itself whatever. The National Association of Manufacturers has been at no time opposed to the regulation of child labor. It has never appeared in any State, so far as I know, in opposition to or criticism of the radical regulation of child labor. That individual manufacturers might differ on that subject would not be surprising--just as there are differences of