Mr. KITCHIN. If that particular principle has ever been reversed or the principle in Kidd v. Pearson, I am not aware of it. As to the difference between manufacture and commerce, and that is the only purpose for which I cite it, namely, that the court recognizes the clear distinction between manufacture and commerce, and that Congress has no power over it until it becomes a part of commerce. Such expressions are used as "commerce begins when manufacture is ended."

Senator CUMMINS. I do not see how you maintain the antitrust law at all, then.

Mr. KITCHIN. That is, I think, on a different principle because it was the common-law offense of combining into a monopoly that the States could not meet because it was not organized within their States. The antitrust act makes criminal as to interstate commerce what the common law makes criminal in the States. The Knight case let out the Sugar Trust because the court said it was more a manufacturing than a commercial concern so far as the bill in that case read.

Senator ROBINSON. You are familiar with the Addystone Pipe case, are you not?

Mr. KITCHIN. I remember reading it very carefully when it came

out.

Senator ROBINSON. Do you not draw from that case the conclusion that contracts relating to manufacture which have the effect, or are calculated to have the effect, of restraining commerce, are within the power of Congress to prohibit?

Mr. KITCHIN. Yes, sir; commerce, that is it.

Senator ROBINSON. Even though the contract relate to manufacture?

Mr. KITCHIN. But it must refer to and embrace principally com

merce.

Senator ROBINSON. Yes; contracts for the manufacture of articles designed for interstate commerce.

Senator CUMMINS. The Knight case did it in the same way that the Addystone Pipe case did it. I supposed it was universally recognized that the Knight case had been reversed. Not in terms, of

course.

Senator ROBINSON. But modified by subsequent decisions, and very strongly modified.

Senator CUMMINS. I know that nothing is left of it at all in view of subsequent decisions.

Mr. KITCHIN. The Addystone Pipe case, in 175 U. S., reiterated the distinction between commerce and manufacture as set out in the Kidd v. Pearson case and in the Knight case, quoting largely from the latter case on this point, and explaining that in the Knight case the combination had the direct purpose of controlling manufacture, and that there was nothing in it looking to transactions in the nature of interstate commerce. The court held that the Addystone Pipe contracts directly and not incidentally operated on commerce, and that they trespassed upon the power of Congress in that they undertook to regulate interstate commerce. The court held "the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private

contracts which directly and substantially, and not merely indirectly, remotely, incidentally, and collaterally regulate, to a greater or less degree, commerce among the States." Upon this principle our trust laws rest.

Now, back to Kidd v. Pearson. Since the court held in that case that Congress had no jurisdiction over manufacture in the States, although it was of goods to be used exclusively in interstate commerce, holding that the exclusive purpose of commerce between the States would not justify the courts in protecting the manufacture when illegal in a State, it would seem to follow that the conditions of manufacture in a State can not impose a contraband character upon an article in commerce in itself of lawful character and use.

To justify prohibition, the Supreme Court must be satisfied that an article is bad or on a bad mission, as it described the lottery tickets, the white-slave cases, impure food and drugs, adulterated, misbranded, and fraudulent goods. I have found no cases except those that were bad in themselves and that line of cases like loose hay, which in themselves are dangerous to interstate commerce or the instrumentalitics thereof, that the court has sustained--not one. Now, in addition to those authorities.

Senator CLAPP. Judge, have you found any case where the court holds that it is for the court and not for Congress to determine the unfit character of the goods?

Mr. KITCHIN. No, sir; I have found this, though, in the lottery cases. Judge Harlan says in substance that they will not undertake to define the rule that will cover all cases, but that it is easy to imagine that cases may arise in which the power and duty of the court to declare the act void may be plain, and the fact that in these impure-drugs and white-slave casts and others they have always found that the article was deleterious in itself.

Senator CLAPP. But all those cases were cases where there was common consent.

Mr. KITCHIN. By common consent-universal consent.
Senator CLAPP. There is no doubt about that.

Mr. KITCHIN. And I think-I may be wrong about it--but I think the Supreme Court itself must be satisfied that the character of the prohibited article justifies its prohibition. It is universally conceded that power over manufacture is reserved to the State. Congress has no power to look into the manufacture of an article under the commerce clause. It can look into the article itself when it becomes a part of interstate commerce, and if it is subject to just criticism, it can lay its hands on it, but if when an article leaves the factory and becomes a part of interstate commerce, it is beyond criticism in character and mission, then Congress has no power over it. I take it that it will be admitted that Congress has no power to follow in a State the distribution of goods after the original packages are broken, because after delivery to the consignee and the original packages are broken, interstate commerce is at an end and they become mingled with the goods of the State, and are no longer subject to Congress, and Congress has no more power over them before they become interstate commerce than it has after they have ceased to be inter

state commerce.

Ex-President Taft in his Yale law lectures, in a volume called "Popular Government," discusses this very question as to whether

Congress had the right to pass an act undertaking to regulate child labor or undertaking to prohibit the transportation into interstate commerce of goods made by the labor of women and children, and he takes strong grounds against it. He says, and what I read is to be found on pages 142 and 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 childlabor 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. Articles 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.

Now, the argument has been made that if Congress can look forward and see that a lottery ticket or a bad woman or an impure food or misbranded drugs will do harm, in the State where it is going, why can it not look back and find where those goods came from and apply the same principle of exclusion on account of their origin? The reason, it seems to me, is clear. Congress has power over goods in interstate commerce, but it has no power to prohibit any except the bad ones. Looking back to the place of manufacture would be like looking forward to the place of distribution after the articles have ended their interstate commerce character. But Congress does not exercise power over goods in the hands of retail dealers after the original packages have been broken. Congress exercises its powers over these goods in commerce while they are part of commerce. While a part of interstate commerce, the power can be exerted to investigate the character, purpose, and use of the goods, and if found illegal the power to prohibit exists, whether future damage would result from the goods or not. Its contraband character can be ascertained while they are a part of commerce. Congress may be responsible for damage that may be done by bad articles when it permits their interstate transportation. Congress has no power to investigate the character of an article before it becomes a part of interstate commerce and it can not be responsible for injury which may result from the interstate transportation of wholesome cotton goods, shipped for a lawful purpose, for the simple reason that no injury can possibly result therefrom. It can not exercise power over goods after their interstate commerce character has ended, and can not exercise it before it begins. To do that would be seeking to do by indirection what Congress can not constitutionally do directly under the commerce clause. I am aware that Congress has done things by indirection under the taxing power, which is a different power altogether, and Congress has accomplished its purpose in many instances, such as with respect to State bank notes, etc.

Can you regulate child labor by indirection when you can not directly? I suppose the court would apply the same rules to an act of Congress that it applies to the constitution of a State. You are all familiar with the recent Oklahoma decision. It affects not only Oklahoma, but my State and some other States. The Constitution says that the right of suffrage shall not be abridged on account of race, color, or previous condition of servitude. The Oklahoma constitution, in substance, says this: "We will make a universal educational qualification of suffrage, and everybody in the State of Oklahoma that can read and write any clause of this constitution shall vote," and nothing is said about color and race, and thousands of colored men who can read and write, I take it, did vote. Many do in my State. Now, Oklahoma passed a further provision in that constitution, and so did North Carolina. It says: "Now we give this educational qualification, but in addition to this you may qualify under another section; we are going to extend, not to deny nor abridge, but we are going to extend the suffrage," and the extension clause was this, that those whose fathers or who themselves could vote on a certain date in 1866, I believe it is their date, shall also be permitted to vote.

Senator CUMMINS. Whether they can read or not.

Mr. KITCHIN. Whether they could read or not. The Supreme Court could not find in that language any mention of race. It was a general educational qualification, that everybody can vote who has it, and in addition those whose ancestors voted at a certain date in the sixties; but the Supreme Court of the United States held those constitutional provisions void, because, in effect, even a State can not beat around the bush that way.

Now, does not every man know, and was it not conceded in the argument, that the purpose of this bill is the regulation of labor of the children in the several States, and do we not know that we are trying to use the commerce clause to affect conditions that are purely internal, domestic affairs? That is, if you eliminate the competition idea—which, I take it, you will eliminate-we are striving by this Keating-Owen bill to compel the States either to enact laws, or without any State law, compel the manufacturers to conform their enterprises to the will of Congress in regard to the production of goods, which admittedly Congress can not directly do.

If the authors of this bill had thought that Congress could say directly that no child in the United States of America shall work until he is 14 years of age, and no child under 16 years of age more than eight hours, this bill would not have been drawn in its present form.

Now, gentlemen, is it right for Congress to force upon the States by indirection the destruction of their control over matters that were reserved to them in the Constitution, and is it right, by indirection, to deprive the people of the States of their right to manufacture in the States according to State laws? Is not this a wrong step?

Senators, if you should pass this bill-I will not discuss amendments to it now-but it does seem to me that there should be amendments that would meet the conditions in the various parts of the country. Many of the States that have passed laws-and so far as I know they have met the approval of the child-labor committeeexempt from the law on account of poverty, and many of them exempt on account of certain industries. The great national child

labor evil is not, in my judgment, found in the cotton mills but is found in the tenement houses of the great cities, and this bill does not touch them, or if so, touches them very lightly.

It may be a matter of interest to some of you gentlemen to know that in one of the wealthiest and best governed cities of this country, Boston, on the 1st of January a year ago, the Associated Press sent out a dispatch that a hundred and some odd children, in a certain school district of about two thousand children, were found in the garbage cans day after day picking the refuse and eating it, and in a certain other district, out of several thousand children, there were something like seventeen or eighteen hundred children who made a habit of doing that, and a committee was recommending some legislation the committee that had charge of it-to forbid it. Those children do not work in a cotton mill.

Now, you can not reach a condition like that by appeals to us, but that is a peculiar proposition for the city of Boston and State af Massachusetts. When you make a universal rule you are going to do injustice somewhere in these matters that are of local concern. Should a sufficient number of people believe that sugar made of beets grown on high, dry land was better than sugar grown in the malarial, low grounds, and you should undertake to prohibit from interstate commerce all sugar except beet sugar, would you have the power to do it?

Now, gentlemen, I shall not read anything else, because I have detained you sufficiently, I hope, to have you fully appreciate the point that I believe is involved in this matter.

I will say, however, that Watson on the Constitution, published in 1910 by an eminent lawyer of Ohio, discussed this very question just as President Taft did, devoting several pages to it. It is volume 1, page 524. He analyzed all the cases up to that time and reached the conclusion that I have tried to impress upon you. Willoughby in, his work on the Constitution, also published in 1910, takes the very ground that I do and clearly gives his reason for it. It will be stated to you, and I am sure it is correct, that since he published that book Prof. Willoughby has modified his opinion to some extent. He told me he had qualified his opinion, but that he was going to look into it again.

Senator POMERENE. He modified it in what respect?

Mr. KITCHIN. Touching the power of Congress over this bill whether Congress had the power to pass child-labor legislation of this character.

Senator POMERENE. Was he here before the House committee? Mr. KITCHIN. No, sir; he was not. I incorporated in my remarks before the House committee a page or two of his work on the Constitution, as his reasoning was clear and direct about it.

Senator POMERENE. Have you a reference to the volume so that it can be inserted in your remarks here?

Mr. KITCHIN. Yes, sir; volume 2, section 348, Willoughby on the Constitution.

Senator CUMMINS. If you are willing to do it, I should like to get your view on a question or possibly two that we have had before the committee for a long time. There have been a good many bills introduced in the Senate, especially, looking to the regulation of corporations engaged in interstate commerce, and we have had a good