The purpose of the measure is to stamp out child labor in the production of goods intended for transport in interstate commerce. He would not only be a foolish man but an inhumane one who did not recognize that the employment of children in industry was subject to many disadvantages, and that it is one of the foremost duties of the State to prevent the exploitation of the child. But the question presened to you is not whether you ought to stop the exploitation of the child but whether the means here suggested is a rightful exercise of the power of Congress in dealing with that subject.

Where does Congress get the right to regulate conditions of production as a condition precedent to the entrance of the commodity produced in commerce between the States? The power of Congress is to regulate commerce and the necessary incidents of commerce. For this purpose its power is plenary and exclusive; but this power is over commerce, not over production or manufactures. What, then, is this power?

Mr. Justice IIarlan well described it when he said:

This question has been frequently propounded in this court, and the answer has been-and no more specific answer could well have been given-that commerce among the several States comprehends traffic, intercourse, trade, navigation, communication. the transit of persons, and the transmission of messages by telegraph-indeed, every species of commercial intercourse among the several States, but not to that commerce 'completely internal which is carried on between man and man in a State or between different parts of the same State and which does not extend to or affect other States." The power to regulate commerce is the power to prescribe rules by which such commerce must be governed. (Adair v. United States, 208 U. S., 176-177.)

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And what is commerce? It was said by the Supreme Court, in Justice Marshall's famous decision in Gibbons v. Ogden, that it was "intercourse," and that the power "to regulate" is the power to prescribe the rules under which that intercourse shall be governed. Is production intercourse? Is the production of any commodity for interstate commerce intercourse? This is not, of course, an attempt to regulate commerce within the State. It is an attempt to regulate production wholly within the State. Upon what theory? Upon the theory that Congress can so legislate, because in its opinion a circumstance or incident under which goods is produced is immoral or improper or dangerous to the public morals, so that that article. ought not to be introduced into or enjoy the facilities for interstate

commerce.

Where has that power ever been exercised? Where has it ever obtained any sanction from that tribunal to which we must look ultimately for an interpretation of the commerce power, the Supreme Court of the United States? Mention is made of the pure food cases, of the lottery cases, of the inspection and quarantine of cattle, and of the white slave act. As evidence of what? That Congress can exclude from commerce any article that it pleases, that it possesses this arbitrary power, and can, therefore, if it will, exclude this or any article from interstate commerce without even looking to the circumstances under which it is produced, because, obviously, it can not directly control production itself by any regulation.

Is there any evidence in any of these cases that supports that point of view? On the contrary, every article that has been excluded from commerce by Congress has been an article that was bad in itself; in other words, that was not a merchantable article, that was not a

commodity of commerce. They have never undertaken at any time to either exclude an article good in itself, nor has the Supreme Court sustained the right to exclude a merchantable or pure commodity.

On the contrary, you can see this with certainty, that there is no contraband article that Congress has excluded from commerce that the States can not refuse to permit to be introduced under the conditions which Congress declines to permit it to go into commerce, because it injures commerce or because it injures those who receive it through that commerce.

Again, the right to engage in commerce preceded the adoption of the Constitution itself, and the Constitution does not create but merely recognizes that right and confers upon Congress the power to regulate its exercise.

In the lottery ticket case, which is taken as the chief pedestal upon which to support the exercise of the power expressed in this bill, we are confronted again and again with the statement of the great court that it is dealing with a "peculiar kind" of commerce. Indeed, this court says, and says very distinctly, Mr. Justice Harlan writing the opinion:

It is a kind of traffic which no one can be entitled to pursue as a matter of right.

And he says again, at the conclusion of the long reasoning in that

case:

We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them; that the carriage of such tickets by interstate carriers from one State to another is therefore interstate commerce; that under its power to regulate commerce among the several States Congress-substitute limitations imposed by the Constitution upon the exercise of the powers granted-as plenary authority over such commerce, and may prohibit the carriage of such tickets from State to State; and that legislation to that end and of that character is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress. (Champion v. Ames, 188 U. S., 358.)

At the time of that decision a condition existed which does not exist here. The evil which you seek to reach is the evil of employing children in the production of goods under certain conditions, the standard of your idea of impropriety being there expressed. The evil is completed when the goods are produced by the children. Transportation in commerce affords the goods a market, but they do not injure by being received by the person to whom they go, except it be said that you encourage by purchase the manufacture of goods under conditions which you believe to be objectionable, improper, or im moral. Grant that to be the situation, is that a regulation of commerce which denies its facilities to those who employ in production those whom Congress thinks ought not to be employed, because you then admit that what you seek to do is to force upon a State that does not have a congressional standard of production the adoption of a police regulation of manufactures fixed by Congress?

In the Lottery Ticket case you had a thing bad in itself, which it was esssential should be transported in order that the transaction which the lottery tickets represented should be complete.

The CHAIRMAN. Was the lottery ticket bad in itself until Congress said so?

Mr. EMERY. Yes; it was bad in itself because it was a gambling contract, and it required the facility of interstate commerce to com

plete the agreement to pay money if the gambler won. The ticket was sold in one State, sent to another, and the person who bought it had a contract with the lottery company, which thereby agreed that if he won the prize he got the money. The States have declared by its prohibition their opinion that gambling was a bad thing, the Supreme Court of the United States said: "May Congress not say that this pestilential thing, gambling, which uses the facilities of interstate commerce for a traffic in which no one may of right indulge to complete its transactions, may be stopped?" Years and years before the Supreme Court had said that a person could not enforce his gambling contracts.

Mr. KEATING. I am one member of the committee, by the way, who is not a lawyer, but you stated just now that the Supreme Court had stated that this pestilential thing, a lottery ticket, should be excluded because of the damage it might be where it was received. Might not the Supreme Court hold that child labor was a pestilential thing, and that it could not be sustained, it could not live, unless the product of child labor should find a market in adjoining States? In other words, that the products of child labor had a moral taint, which was quite as definite as any other taint.

Mr. EMERY. If it has a moral taint, it is quite within the power of the State within which it resides to destroy it. In the lottery case, to show you the lack of a parallel, the States could forbid the gambling, but the States could not forbid the placing of the ticket in the mail or the placing of the tickets by an express company in interstate commerce and its transfer to another point where the persons who purchased it had made a contract. The State could not reach the party at the other end of the transaction, and the State could not stop the completion of the one thing that made the contract complete the delivery of the ticket. The States can completely meet the situation that here exists by forbidding the condition.

Mr. KEATING. The State may forbid child labor when it is within its own borders and, to that extent, forbid the manufacture by child labor of the products of child labor, but the State can not prevent the importation of that same pestilential thing and its sale within its borders.

Mr. EMERY. It can prevent its retail sale in every single State in this country, on the same principle as the State can forbid the sale of alcohol, whisky, beer, or anything else. It can not stop these sales in the original package, but they can not be exposed for sale in any retail store in this country that the State can not stop the sale, and it is doing so in many of the States of the Union to-day. If you want legislation from the States to protect themselves, they can stop the retail sale of child-labor goods so far as they please, on just exactly the principles that they apply to protect the pollution of that State by whisky in opposition to the moral opinion prevailing in that State.

There has been nothing clearer in the course of the whole judicial history of this country than the endeavor to keep distinct the difference between the regulation of commerce and the regulation of manufactures.

The Supreme Court of the United States began away back in the early part of the century and has been pointing out attempts on the part of the Nation to regulate production as distinguished from

attempts to regulate and control transportation and commerce between the States. You could not have a clearer statement of this than was made by the Supreme Court in the case of Kidd v. Pierson (128, U. S., p. 1), where Mr. Justice Lamar said:

"No distinction is more popular to the common mind or more clearly expressed in economic and political literature than that between manufacture and commerce. Manufacture is transformation-the fashioning of raw materials into a change of form for use. The functions of commerce are different. In the celebrated Knight case the Supreme Court made the statement:

Commerce begins where manufacture ends. (U. S. v. E. C. Knight Co., 156 U. S. 13-14-15.)

Quoting again from Kidd v. Pierson:

The functions of commerce are different. The buying and selling and the transportation incident thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces regulation at least of such transportation. If it be held

As these gentlemen would have you do—

that the term includes the regulation of all such manufactures as are intended to be subject to commercial transactions in the future, it is impossible to deny that it would also include all productive industries and contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States with the power to regulate, not only manufactures but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every kind of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest and the cotton planter of the South plant, cultivate, and harvest his crop with his eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the State

Because, if it is vested in Congress, it is denied to the State

it would follow as an inevitable result that the duty would devolve upon Congress to regulate all of these delicate, multiform, and vital interests-interest which in their nature are and must be local in all the details of their successful management. The demands of such supervision would require not only uniform legislation generally applicable throughout the United States but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many different climates and opportunities, would only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward local, detailed, and incongruous legislation required by such interpretation would be about the widest possible departure from the declared objects of the clause in question.

Nor this alone. Even in the exercise of the power contended for Congress would be confined to the regulation, not of certain branches of industries, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State, and the interminable trouble would be presented that whether the one power or the other should exercise the authority in question would be determined not by any general or intelligible rule but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the State governments and more provocative of conflicts between the General Government and the States and less likely to have been what the framers of the Constitution intended it would be difficult to imagine.

Mr. DENISON. Let me ask you there, do you think, if this bill was passed, that the presence of the child in the factory would make it unlawful for them to manufacture these goods for State consumption?

Mr. EMERY. Oh, no, sir.

Mr. DENISON. How could it be told?

Mr. EMERY. Of course, to complete this crime two things are essential. One is that a person is manufacturing an article for interstate commerce, and another is that he actually ships it.

Mr. DENISON. Yes.

Mr. EMERY. And at the time when that article was produced there was a child in that factory who was under 14 years of age, or if the factory ran more than eight hours, or he was employed more than eight hours, was less than 16 years of age this bill says that the mere presence of the child in there at any time during the 60 days preceding the shipment of that goods is prima facie evidence of the fact that he was unlawfully employed.

Mr. SMITH. He has to be present eight hours?

Mr. EMERY. No, sir; there is a preposition there, not a conjunction.

Proof of the presence within sixty days prior to the shipment of such product therefrom in a mine or quarry of a child under the age of sixteen years, or in a mill, cannery, workshop, factory, or manufacturing establishment of a child under the age of fourteen years.

Mr. SMITH. It says for more than eight hours.

Mr. EMERY. The rest is mere surplusage. There is a comma there. Mr. SMITH. There is no comma in this bill.

Mr. EMERY. There is a comma in mine; a child under the age of 14 years and then a comma.

Mr. SMITH. And then, "For more than eight hours in any one day or more than six days in any one week."

Mr. EMERY. That is a separate offense. That is surplusage.

Mr. SMITH. I do not think it would be a reasonable construction of it, if a child came in there to take a man's dinner. He would have to be at work.

Mr. EMERY. I am talking about the way it is written, and more than that, it says if the commodity is produced "in whole or in part." It is not necessary that the child is engaged on a machine. If he is in the establishment; if his labor contributes to that product. I suppose, if he carries a message or does one of many other little things, that his labor is contributing in some way to the production. Mind you, I am not at all concerned in making any objection to the regulation of child labor, even to the standard presented in here. Mr. SMITH. Your State probably has it?

Mr. EMERY. I am not speaking for a State.

Mr. SMITH. Will you please tell us upon what principle a State has the right to suppress the sale of an article innocent in itself and wholesome, that is made by a child under 16 years of age; and if it has the right to suppress it if it is made by a child 16 years of age, why does it not have a right to suppress it if it is made by a child 20 years of age?

Mr. EMERY. It does it. Is suppresses the manufacture of whisky. Mr. SMITH. That is a different thing.