Miss LATHROP. Of course they have published certain material on child labor. The full report on woman and child wage earners in the United States contains much material on child labor, and in the reports on the glass industry and textile mills there are special sections on the relation of labor to health. Thus on pages 385-386 in the report on the textile mills (Vol. I) the greater liability of children to accident is shown, and pages 47-59 of the report on the glass industry (Vol. III) describes the great physical strain of the work for boys, and pages 433-447 the relation to health of the work of girls in this industry. Volume XIV, on the causes of death among women and child cotton-mill operatives, is suggestive in this connection. I have been told that it is intended to make a popular condensation of all the reports. do not know how this is progressing.

Mr. HAWLEY. May I ask a question, Mr. Chairman?

The CHAIRMAN. Certainly.

I

Mr. HAWLEY. There is in the world a growing sentiment in favor of vocational education. You have been interested in that?

Miss LATHROP. Very greatly.

Mr. HAWLEY. There is nothing in this bill that would interfere, you think, with the carrying out of that plan of vocational education?

Miss LATHROP. If I did not think the bill would greatly serve that end I should be absolutely against it. There is appended hereto a statement prepared by Dr. Arthur Reed Perry, of the Bureau of Labor Statistics, under direction of Dr. Royal Meeker, the commissioner of the bureau. I think this statement is unique, and feel that I can greatly clarify my statement by adding it:

"There is now being prepared by Arthur Reed Perry, M. D., through the United States Bureau of Labor Statistics, an extension of his 1905 to 1907 study of factors that shorten lives of women and child operatives in cotton manufacturing cities (published as Vol. XIV of the nineteenth volume report upon woman and child wage earners, S. Doc. No. 645, 61st Cong., 2d sess.), that will be based upon accompanying circumstances or phenomena of the lives of all persons aged 10 to 64 years dying in Fall River, Mass., during the semidecade 1908 to 1912-the initial study (Fall River) in a survey series of antilongevity causes in manufacturing cities of foremost rank in the several industries.

"Possibly the most conclusive arguments against allowing children under 16 to work is the showing, both in Vol. XIV, p. 72, and in this coming supplementary study of Dr. Perry's, that girl cotton operatives (most of whom even in New England, prior to 1912, began millwork before their fifteenth birthday) after working in the mill only a few years have become very much more liable to die than holds true of the aggregate other girls of their city of the same age.

"Table 84, page 400, of this Volume XIV, shows that a sixth (16 per cent) of the female operators dying from tuberculosis within the cities included in that study began millwork before they were 13 years of age.

"Tenacity of life is at its zenith around the age of puberty. Conditions must be superlatively bad, therefore, in order to kill outright children either near the age of 14 or those on the threshold of youth in the post-puberty age period, 15 to 19.

Vitality conservation quite as much as stature increase is the function of adolescence.

"This is the period, therefore, during which should be jealously safeguarded for the child his inhert right, perquisite, pleasure, and duty to accumulate and save from nature's gifts of vitality, lavishly bestowed upon him daily, a store that later drawn upon will predicate a favorable issue over misfortune and accident, stress, and disease.

"Nevertheless, advantage has been taken of their tenacity of life to impose upon children working days so long, tasks so unsuitable, or workshops so unhygienic that, barely to exist as he is, the child is obliged each day to draw upon and use what nature intended for present growth and for later emergency use to insure longevity.

"For even in these childhood, post-puberty, and youthful years of designed vitality-plenty apparently for some operative girls the exigencies of daily living already had used up their reserve strength, because in three cotton manufacturing cities during a period of three years the number of deaths from

tuberculosis to each 1,000 girls of each designated occupation class of specified age Volume XIV shows (Table VI, p. 198) to have been as follows:

'Operatives thus, of the most youthful age group were four times; those of the post-puberty group were twice; and those of the young adult group-20 to 24-were about two and a half times as liable to die from tubercuolsis as were, respectively, the girls of like age that did not work in cotton mills. It must be remembered that one-half of all female operatives are aged 15 to 24 and that, therefore, this group is a fair sample of the cotton industry.

"It is scarcely less than obvious that the groups 15 to 19 and 20 to 24 together comprise about the very earliest age period in which "premature age at beginning wage earning," or occupation, childbearing, or, in fact, and other life incident or accompanying circumstance, however debilitating, could have so depleted a worker's native store of resistance and vitality as to have resulted in death.

"And yet Volume XIV has shown, furthermore (Table 52, p. 325), that thus early in life, exercise even of the natural functions of childbearing, by Fall River operatives of 1905 to 1907 was attended with an enormously greater hazard to life than it was for nonoperatives similarly aged. (Operative rate from parturition, .56 per 1,000 of whole population aged 15 to 24; nonoperative rate from the same cause, .06 per 1,000 of whole population aged 15 to 24.) "Moreover, the same table shows that the whole liability of female operatives aged 15 to 24 to die from any and all causes (5.30 per 1,000) was more than one and three-quarters times as great as obtained in the case of nonoperative girls of the same age (2.96 per 1,000).

"Obviously it may be objected that there is an appreciable degree of inequity in comparing the death rate of a class-the operatives-all of whom work, with the death rate of nonoperative girls of the same age, since some of the latter are not wageworkers.

"The excess hazard of the operatives, however, is so enormous as more than to offset any unfairness in the comparison.

"To guard against even the possibility of misapprehension perhaps it should be pointed out also that there is a considerable degree of probable unfairness in comparing, as respects their hazard from parturition, the whole class of operatives with that of nonoperatives, irrespective of conjugal condition. "Because, though at the age of 15 to 24 the female population of Fall River, married and single together, is almost equally divided between operatives and nonoperatives, it is extremely likely that operatives constitute a considerable majority of the whole married population of this young-age group. Still the comparison, though admittedly inexact, can not mislead, because (all) operatives, as has been noted above, were 10 times as liable to die from childbirth as were (all) nonoperatives of the same age, and there is no probability that married operatives were anything like 10 times as numerous, even in age group 15 to 24, as were the married nonoperatives.

"It is now becoming in some degree appreciated how much misery and inefficiency result from long-unrecognized defective vision, and how large is the number of deaths in middle and later life that basically are attributable to unidentified lesions caused in childhood by the so-called mild contagious diseases-as measles and whooping cough-as well as to the severer ones-scarlet fever, diphtheria, pneumonia, tonsilitis, and influenza.

"Hence accompanying the crusade for a high age limit for beginning wag earning, and of no less value practically in conserving health through preven tive measures, should be a demand for an 'employment physician' with power after a thorough physical examination of applicants, to refuse an employmen permit to anyone until crippling defects of vision, nutrition, or disease shal have been corrected, and to withhold from any applicant a permit to work i such industries as shall be deemed grossly inimical to the applicant's longevity The applicant, for example, with incipient tuberculosis should be withheld from employment in indoor dusty occupations, and he with a leaky heart valve should be kept out of the heavier and physically more strenuous trades. More over, whenever change of employment is sought it should be the physician's duty also to reexamine each such applicant and to grant or refuse a certificate for reemployment, whether in the same or in a new industry, wholly with reference to applicant's physical condition at that time. Incidentally, through such reexaminations ultimately there may be learned much respecting the effect of occupations upon the health.

66

(Respectfully submitted March 18, 1914, by Arthur Reed Perry, M. D.) "

STATEMENT OF MR. JASPER YEATES BRINTON, OF THE PHILADELPHIA BAR, PRESIDENT OF THE PENNSYLVANIA CHILD LABOR ASSOCIATION.

Mr. PALMER. Mr. Chairman, I desire to next present to the committee Mr. Jasper Yeates Brinton, a member of the bar of Philadelphia and the State of Pennsylvania, and president of the Pennsylvania Child Labor Association.

66

Mr. BRINTON. Gentlemen of the committee, from Pennsylvania we come to this hearing with high hopes. Session after session at our legislatures we have been met by the cry from the manufacturers, State legislation is unfair. You ask us to compete with other States of different standards. This interstate competition will ruin our business. If we must advance, let us advance together." It is to meet this argument, which however unfounded in fact it may be in any particular instance, is yet the most effective argument that confronts the child-labor cause in America to-day, that this bill has been introduced, and you can believe that we, in whose ears it is still ringing, come with a peculiar conviction and enthusiasm in support of this effort to lend Federal aid to what has become a truly national evil.

For let me remind you that it is from the Federal Constitution that every manufacturer is guaranteed the right to ship his goods freely into whatever States he pleases. By its wise prohibition no other State may lift a ban against him at its borders, whatever unequal advantage he may have enjoyed or from whatever inhuman working conditions his product may have sprung. The Nation may do this (and has done it in the convict-labor clause of its tariff laws) under the powers surrendered to the States by Congress. But not so the States themselves, who have parted with this power. There was a day when this was otherwise. But it was an evil day. It has been called the critical period of American history. The States could then prohibit as they choose, and it was largely due to the evils which attended the lodging of this particular power in so many sovereignties that the new Constitution was adopted, in which for the good of all it was surrendered to the National Government.

The condition which confronts us to-day is therefore in actual fact largely a problem of interstate competition through interstate commerce; a condition emphasized in every child-labor campaign in every State; a condition certain to grow more hopeless as conditions of competition become constantly more intense. Interstate commerce is at the root of the evil as it exists to-day. The interstatecommerce power alone is adequate to effectively relieve it.

May such power be constitutionally invoked, as in the bill which is now before the committee? Or rather (assuming that the passage of the bill is to the interests of the people, and if it is not so it will not be passed), can such a case be made against its constitutionality that it is the duty of Congress to anticipate a certain adverse decision by the Supreme Court and therefore to defeat the measure?

For

Nor is it common experience that a problem carefully and accurately stated is often a problem half solved. To avoid covering unnecessary ground, let me therefore spare a few minutes at the outset of our discussion in endeavoring to reduce to its narrowest limits, the precise question we have to meet. surely, so far as the Supreme Court has rendered decisions covering any features of the situation presented by this bill, we need waste no time in going behind those decisions, but may use them as a starting point of our discussion to-day.

How far, then, have these decisions gone? What conclusions can be incontrovertibly drawn from them? What difference, if any, is presented in the actual facts between the decided cases and the act before us? And what, then, are the considerations to which we must look for light as to the application of the principle found in these decisions to the legislation now proposed? To put the matter as briefly as possible, I begin by asking you to have in mind two comparatively recent laws, one of which has been conclusively sustained by the Supreme Court in a decision familiar to you all; the constitutionality of the other of which has been affirmed by many of the lower courts and assumed in discussions of that act before the Supreme Court and tacitly accepted by Congress and the Nation.

I refer to the lottery act and to the food and drugs act, from the principles of which I ask you to note these two incontrovertible conclusions-conclusions sustained by numerous prior decisions, with the recital of which I will not burden you-equally applicable to the case before us.

The first is, that lottery tickets and misbranded goods are articles of commerce, and the second is that regulation of interstate commerce in these articles may take the form of prohibition.

Now, you will, of course, note at once that there is a considerable distinction between these two acts and those earlier acts, familiar to you all, which have prohibited the carriage of articles likely to endanger commerce itself, as, for instance, nitroglycerine, or loose hay, or other combustible materials. In these acts the prohibition was designed primarily to protect the people from dangers incident to the physical carriage itself. In the two later acts, however, with reference to lotteries and adulterated and misbranded food products (as also in the case of those various other acts relating to falsely branded dairy products and condemned carcasses of animals and quarantined articles and obscene literature), it is obvious that the courts have passed beyond the consideration of a danger to commerce inherent in the articles, and have looked to a possible injury to the public resulting from the future use of the articles by the consumer, after commerce has been terminated. The use of lottery tickets is calculated, in the judgment of Congress, to debauch the public morals. The circulation into commerce of misbranded and adulterated goods is calculated to deceive and injure the people who use such goods.

The single question, then, which presents itself is this: Can a controlling distinction be drawn between a power in Congress to prohibit the interstate transportation of articles adapted to deceive or defraud the consumer, or injure his health or morals, and articles whose manufacture has injured the health and morals of the children employed therein? In other words, may Congress look forward to the effect of such articles upon the consumer for whose benefit they are produced, but not backward to the effect of their manufacture upon the worker and the industry by which they are made?

In answering this question it is important to remember at the outset that we are concerned solely with the problem as to whether the proposed legislation is or is not a regulation of interstate commerce, within the meaning of the Constitution. If it is a regulation (and does not violate some specially protected right under the Constitution) it is constitutional. If not, it is not constitutional, and the question as to whether it incidentally affects the conditions of manufacture in a given State-conditions over which Congress itself has no primary right of control-is altogether beside the point. I say it is important to rememher this, for at the bottom here is to be found the real source of all the objections that have been made in the past to legislation similar to that now before you. It is an argument, indeed, which has, as I see it, for once deceived the legal judgment of so great a lawyer as our last President-and when I say this I speak with a sincerity of respect born not from political agreement, but from a personal study of every judicial decision which this great judge wrote. Sometimes, indeed, I wonder if any other soul alive, except himself, can say as much as this. But here, as in other matters, we have disagreed.

In a few sentences, in his recent little volume on popular government, he attacks the proposed bill and sums up his argument in this sentence:

"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."

Mr. HAWLEY. What is he referring to?

Mr. BRINTON. This sort of legislation. That quotation is from his little book entitled "Popular Government." It is published by the Yale University Press. Let me call attention to this fact: "To compel the States to pass a certain

kind of legislation." I want to impress that upon the committee, because it is an argument that has been brought up and will be brought up again. But this bill does not compel the States-does not invite the States-to pass any kind of legislation. Absolutely it is an incorrect statement. The bill concerns itself only with the legislation by Congress and only with that phase of commerce that is under the sole jurisdiction of Congress, and, in so far as it is true that it indirectly affects conditions in the States, this fact is equally true of the food and drugs act and a dozen other acts of similar nature. I ask you to consider that objection.

The CHAIRMAN. Of course, as a lawyer, you want to meet the difficulties.
Mr. BRINTON. That is what I am here for.

The CHAIRMAN. In that connection I want to suggest hypothetically this state of affairs: In dealing with the question of pure food you have presented a problem like this: The State in which the goods were manufactured had no power to legislate with reference to their interstate commerce.

Mr. BRINTON. Precisely.

The CHAIRMAN. The State to which they were consigned and in which the consumer lived, whose health might be affected by their use, had no power to deal with the interstate commerce in such matter. There was only one legal power, therefore, that could effectuate the object of restricting the interstate commerce in pure food, and that was the power of Congress. Does that legal fact present itself here? A State that now has no 14-year or 16-year provisions might enact a provision, and they would be legally affected. A State where the article is manufactured might do so. That presents the legal difficulty, although I recognize the competition fact is a dominant circumstance. I would like to hear you with reference to that situation.

Mr. BRINTON. That is what we want to meet here. But the State certainly has the right, in the first place, I think, Mr. Chairman, to prevent the sale within its borders of foods or drugs which are going to injure the health of its people, irrespective of whether they are or are not articles of interstate commerce. That was decided in the oleomargarine cases. While, until the Wilson act was passed surrendering certain of the rights of Congress, the State could not prevent the sale of whisky imported from another State, the rule is different in the case of poisonous food products. Their right here arises from the same power as their right to pass child-labor laws. The analogy is just the same. They have a right to protect themselves against child labor, if they want to do so, so far as it is confined to their own State, and they have a perfect right to pass their own food and drugs act, have they not?

The CHAIRMAN. I might have some doubt about that. The State of Pennsylvania would have the power, for example, to say that diseased meats should be subject to certain disposition after they reached the State. That is your position?

Mr. BRINTON. Yes; after they reach the State, because, under the police power which applies to all goods coming into the State, it could regulate anything affecting the health or morals of the people.

The CHAIRMAN. And that answers the suggestion that only Congress could have dealt with the pure-food situation?

Mr. BRINTON. But the point I want to make is this, that the passage of the pure food and drugs act certainly has the effect of establishing a national standard for the States. The State might not want to have that national standard. The State might say, "We do not want any of these standards in our State. We are self-governing." But that is only the indirect result, is it not? The passage of the food and drugs act may, therefore, raise the standard of all the States, because nobody can make up drugs to pass out of the State that do not comply with the national standard; and, of course, we are only considering it in the broad view, and assuming that most manufactured articles are made with a view to the possibility of their entering interstate commerce. I say the indirect result of the food and drugs act is to lift the standard for the States, and the indirect effect of this is going to be to lift the standards of the States, and that there is no difference whatever between them on that score. And yet no one has seriously objected to the food and drugs act upon this account.

The argument, then, looks to an incidental effect, that ignores the inherent nature of the law as a prohibitory commerce act, and its limitations to a sphere strictly within the control of Congress.

This proposition has been clearly stated by one of the most distinguished authorities on constitutional and administrative law in the United States, Prof.