many of them which proposed to regulate those corporations through prohibition; that is, through the prohibition of their activities in interstate commerce, where they were of a certain character, and a certain kind of organization. For instance, do you think we have the right to say that no corporation shall engage in interstate commerce unless its capital stock is fully paid up?

Mr. KITCHIN. I have not investigated that particular matter and, like all lawyers, I do not like to express even an off-hand opinion, but I think this: I think Congress would have the same power over corporations doing an interstate business perhaps that it does over bridges between States. It is an instrumentality of interstate commerce and I think the principle in the employer's liability cases would probably give power to Congress over interstate carriers.

Senator CUMMINS. I do not think you quite got my point. If we could say that a corporation which was organized in a manner that we thought detrimental to the public good, although organized under the laws of the State, should not engage in interstate commerce unless it did so and so, is there any parallel between that position and the position that a corporation which engages in child labor shall not engage in interstate commerce?

Mr. KITCHIN. I think there is a great distinction in it, because in one case you are regulating the instrumentalities of interstate commerce and in the other you are undertaking to regulate manufacture within a State.

Senator CLAPP. Judge, I do not think you get the point of the question.

Senator CUMMINS. I think possibly he does not; but suppose we were to say that no corporation which employs children under the age of 15 years or 14 years or 13 years, as the case may be, shall be permitted to enter interstate commerce in any form, not attempting to distinguish between the goods that are made by a child and the goods that are made by an adult, but the corporation which employs children below a certain age shall not be permitted to enter commerce at all?

You

Mr. KITCHIN. I do not think you would have that power. I know you have power over carriers engaged in interstate commerce. have already regulated their hours of labor.

Senator CUMMINS. I understand that, but is there any difference in law? I am speaking of it not as a question of policy, but is there any difference between saying that a corporation which employs child labor shall not enter into interstate commerce and saying that a corporation which is organized that is overcapitalized we will say shall not engage in interstate commerce?

Mr. KITCHIN. There would be this difference. I think that overcapitalization is an evil, and is acknowledged as an evil, but even then

Senator CUMMINS. No more than child labor; you do not mean to say that overcapitalization is morally more reprehensible than child labor?

Mr. KITCHIN. Well, it would depend; in some instances it would and in others it would not.

Senator CUMMINS. I am asking you whether there is any difference between those two cases, because we have had before our committee many, many such bills.

Mr. KITCHIN. I started to say, Senator, admitting for the present that the answer to that question would be no, that there is no difference morally between overcapitalization and child labor, that would not operate against the unconstitutionality of this proposition. Here you are forbidding goods which are the articles of commerce from entering when they are subject to no criticism in themselves. Senator CUMMINS. The parallel that I instituted did not relate to the goods themselves. It related to the corporation or the employer, or the concern that produced them.

Mr. KITCHIN. Yes, sir; it would be a question for the courts, I should think, without having investigated it, to say whether that was an immoral over-capitalization in interstate commerce and especially whether it was directly engaged in interstate commerce instead of indirectly. Congress has no power to regulate men, but commerce between the States.

Senator CLAPP. Well, Judge, if the act was immoral, it would be local. It would not carry into the State to which the corporation was shipping any evil effects that impure food does. So it would eliminate the limitation which has been suggested so often, that the effect must be within the State to which the goods are going.

Mr. KITCHIN. I think that is the only ground upon which legislation by Congress could be upheld against the goods if the effect in other States is detrimental. That is the opinion I have reached, and I am glad to be supported in that by ex-President Taft, by Watson and by Willoughby on the Constitution, by the former Judiciary Committee of the House, and others.

Senator CUMMINS. Do you not know that President Taft recommended or rather was of the opinion that we had a right to pass a law for general incorporation under the power to regulate commerce? Mr. KITCHIN. To pass a law for incorporation?

Senator CUMMINS. Yes.

Mr. KITCHIN. I think I recall that he did.

Senator CUMMINS. Do you not think that is expressing it a little more broadly?

Mr. KITCHIN. That would be extending the powers of Congress very much, and what would be the effect of that I would not anticipate; but I will say that if ex-President Taft had given a particular question as much care and study as I have this child-labor bill, I would have more faith in his opinion on that question than I would in my own, because he is abler and of course a more experienced lawyer, and can look at these things in a more judicial light than perhaps I can.

Senator POMERENE. I want to put this question directly; I think Senator Cummins touched upon it. You have tried to distinguish between corporations engaged directly in interstate commerce and those which are engaged indirectly in interstate commerce. I am not quite clear that I understand your distinction. Do you not think that a North Carolina corporation which sells goods of its own manufacture and ships them to Ohio is engaged directly in interstate commerce?

Mr. KITCHIN. Yes, sir; but I will add that its commerce would be incidental to its manufacture.

Senator POMERENE. And if that be so, then when those goods are being shipped, may not Congress determine what may be done in that behalf to regulate it?

Mr. KITCHIN. Not until its goods become a part of interstate commerce and not if its goods are beyond fault I used the word "indirectly" when perhaps I should have said "incidentally" engaged in interstate commerce, a moment ago. I do not think that Congress can enter the domain of a State and put its hands on its producing powers. I do not think Congress would have the power to say that no boy of any age should pick cotton in the States or help thrash wheat in the State, or any other purely productive industry in the State. That is the idea I have, and I have reached it after a careful investigation, though I must admit I had not read the commodities case since about the time it was decided; but a full reading of the white slave cases and the lottery case, with the limitations that the court says is upon the power of Congress, and a consideration of the clause in the fifth amendment to which I have repeatedly referred, will lead to that conclusion, I think. Congress has power to regulate commerce and its instrumentalities directly engaged therein. It has no power to regulate those who ship goods in interstate commerce or who use its instrumentalities incidentally in their business or pleasure.

My argument has been made against the principle of prohibition, as this bill prohibits goods, just as they were prohibited in cases that I have cited. I have not undertaken to discuss how far Congress can undertake to regulate any business that is legitimate, because it has power to regulate legitimate commerce, but not in the manner that takes the form of prohibition.

Senator CUMMINS. I have been very much interested in your argument, and I realize, of course, that in making the Constitution cover this bill, Congress has gone very far toward regulating and absorbing the affairs of the States, and has gone far toward absorbing the police powers of the States.

Mr. KITCHIN. I think it would be well, for any Senator who has the time to do it, to read Watson on the Constitution, and especially the pages I have cited here. It is very full, and seems to be a very fair discussion of this proposition, and it relates to this identical question that is involved here.

Senator BRANDEGEE. I would like to ask you one question. If I understand your claim it is this, that the only constitutional authority under which this legislation can be sustained is the commerce clause of the Constitution?

Mr. KITCHIN. Yes, sir; that is my opinion.

Senator BRANDEGEE. Which authorizes Congress to regulate commerce among the several States. Would you claim that this bill, when it prohibits the producer from shipping his product in another State, unless the labor which enters into the production of the product shall conform to the standard set up by Congress, is not a legitimate attempt to regulate commerce among the States? The purpose of that provision is to regulate the hours of labor among the children in the several States.

Mr. KITCHIN. That is my position; that when Congress undertakes to forbid the transportation of goods, unless certain conditions shall have been complied with-it is destroying their value. When you forbid a man to sell a thing that he is making, you are destroying the value of his property without process of law, as in this bill.

Senator POINDEXTER. You have a right to do that, to destroy and to take property, supposing that Congress has jurisdiction over the matter. The States have the right to condemn property and to destroy it and to exercise their police power?

Mr. KITCHIN. They have.

Senator POINDEXTER. And Congress would have the same power of fulfilling its responsibilities, would it not?

Mr. KITCHIN. I do not think this would come under any police power or under the power of eminent domain. When Congress exercises the power of eminent domain it pays for the property taken; but when it takes property because it is illegal or used against the Government it confiscates it. I do not think that Congress has the power to confiscate property on account of the method of its manufacture in a State unless such manufacture is illegal. That is the position I take upon that. I will add that if a citizen has the right to ship in interstate commerce a sound, pure, useful, and blameless article for a legal purpose and this right is guaranteed by the fifth amendment, then there can be no such thing as a reasonable prohibition of that right without due process of law. Neither the United States nor any State nor any citizen or body of citizens can constitutionally deprive him of his guaranteed right on the ground that it is reasonable to do it. Congress can not levy a tax upon exports, though it be reasonable.

The sovereignty of this Government is in the people. They have the power to give Congress more power. Congress has only the power granted in the Constitution. To hold that Congress can do what is reasonable under circumstances appearing to it is to ignore the Constitution and to assume that Congress is supreme, for certainly it will not be assumed that Congress will ever do an unreasonable thing under the apparent circumstances. When a citizen is deprived of a guaranteed right by Congress on the ground that it is reasonable to so deprive him, it has a flavor of mob spirit, for no man was ever deprived of his life by a mob who did not think that it was reasonable to lynch under the circumstances. In other words, it is the spirit of an unrestrained acting majority. Constitutions are made to protect minorities. Majorities usually are able to take care of themselves. I thank you gentlemen very much.

Senator CLAPP. I move that the committee take a recess until tomorrow at 3 o'clock p. m.

(Thereupon the committee took a reçess until to-morrow, Thursday, February 17, 1916, at 3 o'clock p. m.)