I will ask at this point to have the bill inserted in the record that the committee may have before it the sections to which I address myself.

The CHAIRMAN. That will be done.

(The bill referred to is as follows:)

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate commerce the product of any mine or quarry situated in the United States which has been produced, in whole or in part, by the labor of children under the age of sixteen years, or the product of any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States which has been produced, in whole or in part, by the labor of children under the age of fourteen years or by the labor of children between the ages of fourteen years and sixteen years who work more than eight hours in any one day, or more than six days in any one week, or after the hour of seven o'clock postmeridian, or before the hour of seven o'clock antemeridian.

SEC. 2. Proof of the employment within sixty days prior to the shipment of such product therefrom (first) in a mine or quarry of a child under the age of sixteen years, or (second) in a mill, cannery, workshop, factory, or manufacturing establishment (a) of a child under the age of fourteen years, or (b) of a child between the ages of fourteen years and sixteen years for more than eight hours in any one day or more than six days in any one week, or after the hour of seven o'clock postmeridian, or before the hour of seven o'clock antemeridian shall be prima facie evidence that such product has been produced in whole or in part by the labor of such child.

SEC. 3. That the Attorney General, the Secretary of Commerce, and the Secretary of Labor shall constitute a board to make and publish from time to time uniform rules and regulations for carrying out the provisions of this act.

SEC. 4. That for the purpose of securing proper enforcement of this act the Secretary of Labor, or any person duly authorized by him, shall have authority to enter and inspect at any time mines, quarries, mills, canneries, workshops, factories, manufacturing establishments and other places in which goods are produced or held for interstate commerce; and the Secretary of Labor shall have authority to employ such assistance for the purposes of this act as may from time to time be authorized by appropriation or other law.

SEC. 5. That it shall be the duty of each district attorney to whom the Secretary of Labor shall report any violation of this act, or to whom any State factory or mining or quarry inspector, commissioner of labor, State medical inspector, or school-attendance officer, or any other person shall present satisfactory evidence of any such violation to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay for the enforcement of the penalties as in such cases herein provided: Provided, That nothing in this act shall be construed to apply to bona fide boys' and girls' canning clubs recognized by the Agricultural Department of the several States and of the United States.

SEC. 6. That any person who violates any of the provisions of section one of this act, or who refuses or obstructs entry or inspection authorized by section four of this act, shall for the first offense be punished by a fine of not more than $200 and for each subsequent offense shall be punished by a fine of not more than $1,000 nor less than $100, or by imprisonment for not more than three months, or by both fine and imprisonment, in the discretion of the court: Provided, That no dealer shall be subject to conviction under the provisions of this act who shall establish a guaranty issued by the person by whom such goods were manufactured or produced, resident in the United States, to the effect that in the manufacture and production of such goods, neither in whole nor in part, had children been employed or permitted to work in any mine or quarry under the age of sixteen years, or in any mill, cannery, workshop, factory, or manufacturing establishment under the age of fourteen years, or between the ages of fourteen years and sixteen years who worked more than eight hours in any one day or more than six days in any one week or after the hour of seven o'clock postmeridian or before the hour of seven o'clock antemeridian, and in such event the guarantor shall be amenable to any prosecution, fine, or penalty to which the person seeking the protection of such guaranty would otherwise have been subject under the provisions of this act. Said

guaranty, to afford the protection above provided, shall contain the name and address of the person giving the same.

SEC. 7. That the word "dealer" or the word " person" as used in this act shall be construed to include any individual or corporation or the members of any partnership or other unincorporated association. The term "ship or deliver for shipment in interstate commerce" as used in this act means to ship or deliver for shipment from any State or Territory or the District of Columbia to or through any other State or Territory or the District of Columbia.

SEC. 8. That in prosecutions under this act each shipment or delivery for shipment shall constitute a separate offense.

SEC. 9. That this act shall take effect from and after one year from the date of its passage.

Passed the House of Representatives February 2, 1916.
Attest:

SOUTH TRIMBLE, Clerk.
By J. C. SOUTH, Chief Clerk.

Mr. EMERY. The measure proposes to make it unlawful for any producer, dealer, or manufacturer to offer for shipment or to ship in interstate commerce any commodity produced in whole or in part by the labor of children below a certain age, or working for more than 8 hours of any calendar day, or more than 48 hours in any week. It establishes an administrative board consisting of the Attorney General, the Secretary of Labor, and the Secretary of Commerce, and empowers them to enact such rules and regulations as may be necessary for the administration of this bill. It further authorizes and directs the Secretary of Labor, for the purpose of enforcing this measure, to inspect all factories, workshops, mines, quarries, or canneries, or other places in which commodities are produced or held for shipment in interstate commerce. It obligates every district attorney of the United States upon the presentation of satisfactory evidence of various persons enumerated, or by any person, to proceed without delay to prosecute for violation of this act, and it makes each shipment a separate violation of the law.

For the practical purpose of enforcing the bill it establishes a rule of evidence expressed in the second section of the bill which provides that proof of the employment of any child under the forbidden conditions, or within the forbidden age, within 60 days of the shipment of any commodity in interstate commerce, shall be prima facie evidence that the commodity was produced in whole or in part by the labor of such child.

Now, in the first place, gentlemen, I ask you to note the term "produced in whole or in part by the labor of a child." The term is broader than the avowed object of the bill. As I understand it is the purpose of the proponents of this measure to regulate the employment of children in "mechanical" operations. But there is no such limitation here. It applies to any child whose labor contributes in whole or in part to the resultant production. As it applies by name to "manufacturing establishments," it is obvious that any child in that establishment whose act or whose service contributes to production is within the terms of this measure. It would therefore apply as fully to an errand boy in a manufacturing establishment who carried an order to any foreman or superintendent in any part of that plant who directs, governs, or guides the operation therein as it would to a child actually engaged in the operation of a machine.

Moreover, each separate shipment constitutes an offense, so that the volume of shipments and not the number of children employed meas

ures the penalty which may be incurred. An establishment making 500 shipments per day and employing 1 child would incur 10 times as many penalties as an establishment employing 200 children within the forbidden age and making but 50 shipments per day. The measure is not aimed at production in which children are exclusively employed. An establishment may have 10 or 12 or 20,000 operatives, but the employment of 1 child under 16 whose service may be said to contribute to the production of a commodity which is shipped in interstate commerce contaminates and penalizes every shipment flowing from that plant, although each article is otherwise sound and wholesome.

So it is apparent that the exclusive employer of children is to be penalized far less than the employer of a few children with a larger volume of shipments.

Now, I ask you to observe that rule of evidence proposed here is not only perfectly consistent with the complete innocence of a person engaged in manufacturing production in any State, or of any dealer, but it sets up as prima facie evidence of the violation of the act the condition under which lawful production for domestic consumption may be carried on. If in any State a child under 16 years of age is employed in an establishment working for more than hours, as forbidden by this measure, but who, under the law of that State, may be lawfully employed in that particular occupation, that child while engaged in lawful production for domestic use only supplies prima facie evidence of the violation of this proposed statute by every shipment in interstate commerce that passes out of that plant during the period of his employment. So not only is the presumption created entirely consistent with the innocence of the accused but by the innocent exercise of his legitimate right of employment he provides the evidence of his guilt.

Now, the "guaranty" provided in the bill does not insure the dealer against prosecution. It secures him only against "conviction." It is therefore a defense which he may set up, but it provides no immunity whatever against his arrest, prosecution, and the inconvenience, expense, and disgrace which may attend it.

I think the committee will agree as a fundamental principle of law that "due process of law" applies not less to immunity from arbitrary arrest and prosecution than to immunity from conviction and imprisonment. Indeed, in the twenty-ninth chapter of Magna Charta, in which "due process of law" had its birth, we read that "no freeman shall be taken" (that is, arrested) "or imprisoned or outlawed or banished or any ways destroyed, nor will the king pass upon him or commit him to prison unless by the judgment of his peers or the law of the land." Of course, it is needless to say the phrase "due process of law" is the equivalent of "the law of the land."

In entering upon a discussion of the validity of this proposal, I trust I realize the distinction between the argument which I may make to you and the argument which may be addressed to any court before which the validity of these provisions is in dispute. No court may set aside an act of Congress until it is clearly shown that the Legislature has plainly exceeded its power, no matter how unwise or even absurd the policy of the act may be. It is not in the power of any court to question the wisdom of any policy pursued, granted

that power to enact resides in the legislative body. On the other hand, I assume that Congress scrutinizes the nature and extent of any power under which it is urged to act whenever that power is seriously challenged, because it is a legislative body having its authority conferred and measured by the Constitution of the United States, possessing only limited enumerated powers which are in their turn conditioned by the express inhibitions of the Constitution.

I must indeed disagree with the suggestion made by Mr. Parkinson in the course of his argument that only the fifth amendment limited the exercise of the commerce power. On the contrary, there are many provisions of the Constitution that not only may limit the exercise of the commerce power but which, in the course of many decisions, have been expressly held to do so.

The nature and effect of these prohibitions I expect to consider; before doing so, however, I trust you will permit me to express what I assume to be the state of mind of the legislature toward a proposal of this character. I quote from Judge Cooley in his "Principles of Constitutional Law," a statement frequently approved by legislators as truly descriptive of the position they will take when confronted with the necessity of determining their powers (Cooley "Principles of Constitutional Law" second edition, p. 150):

Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions, they usurp authority, abuse their trust, and violate the promise they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution, is to treat as of no force the most imperative obligations any person can assume. A business agent who would deal in that manner with his principal's business would be treated as untrustworthy; a witness in court who would treat his oath thus lightly, and affirm things concerning which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgment of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts, and give it their support.

And Mr. Taft, a distinguished judge, when he vetoed the WebbKenyon Act referred to this matter, and I trust I may be permitted to read what he then said in affirmation of the same principle, referring to the legislative and executive duty of determining when an act was valid. He said:

But it is said that this is a question with which the Executive or Members of Congress should not burden themselves to consider or decide. It is said that it should be left to the Supreme Court to say whether this proposed act violates the Constitution. I dissent utterly from this proposition.

Senator CLAPP. Will you permit me to interrupt you there? Have you heard a legislator say that that was a matter with which he had no concern n?

Mr. EMERY. No; not that he had no concern.

Senator CLAPP. I am using the language quoted there.

Mr. EMERY. I do not know what Mr. Taft had in mind, but I do know that in the committee of the House in which this matter was discussed, it was set up that the matter of constitutionality was not one upon which it was necessary for them to concern themselves; that it was a matter to be decided by the Supreme Court, and if a legislator ever hesitated to act where he was in doubt whether he was vested with power or not, there would be no progress.

Senator CLAPP. That is a very different statement.

Mr. EMERY. Yes, sir. He proceeds:

The oath which the Chief Executive takes, and which each Member of Congress takes, does not bind him any less sacredly to observe the Constitution than the oaths which Justices of the Supreme Court take. It is questionable whether the doubtful constitutionality of a bill ought not to furnish a greater reason for voting against the bill, or vetoing it, than for the court to hold it to be invalid. The court will only declare a law invalid where its constitutionality is clear, while the lawmaker may very well hesitate to vote for a bill of doubtful constitutionality because of the wisdom of keeping clearly within the fundamental law. The custom of legislators and executives having any legislative function to remit to the courts entire and ultimate responsibility as to the constitutionality of the measures which they take part in passing is an abuse which tends to put the court constantly in opposition to the legislature and executive, and, indeed, to the popular supporters of unconstitutional laws. If, however, the legislators and the executives had attempted to do their duty this burden of popular disapproval would have been lifted from the courts, or at least considerably lessened.

I trust you will permit me at this point to say one word with respect to a matter that I will discuss more specifically at a later moment, that is the very great danger which lies in exciting collision between the respective powers of State and Nation. It touches a grave and delicate relationship, which, as you gentlemen well know, has been the subject of continuous debate and apprehension. I can recall no one who in recent years has expressed more strongly and clearly the peril that lies in the creation of any policy, the effect of which is to upset that delicate and essential balance of power, than Senator Root, who in the course of his address on "The Essentials of the Constitution," at Princeton University a year and a half ago, made this remarkable statement:

If the power of the States were to override the power of the Nation, we should ultimately cease to have a Nation and become only a body of really separate, although confederated, State sovereignties. continually forced apart by diverse interests and ultimately quarreling with one another and separating altogether. On the other hand, if the power of the Nation were to override that of the States and usurp their functions, we should have this vast country, with its great population, inhabiting widely separated regions, differing in climate, in production, in industrial and socal interests and ideas, governed in all its local affairs by one all-powerful central government at Washington, imposing upon the home life and behavior of each community the opinions and ideas of propriety of distant majorities. Not only would this be intolerable and alien to the idea of free self-government. but it would be beyond the power of a central government to do directly. Decentralization would be made necessary by the mass of Government business to be transacted, and so our separate localities would come to be governed by delegated authority-by proconsuls authorized from Washington to execute the will of the great majority of the whole people. No one can doubt that this also would lead by its different route to the separation of our Union. Preservation of our dual system of Government, carefully restrained in each of its parts by the limitations of the Constitution, has made possible our growth in local self-government and national power in the past, and so far as we can see it is essential to the continuance of that Government in the future.

Senator CLAPP. I do not want to interrupt you too often, but would you take that as maintaining that the Federal Government ought not to do any of the things committed to it by the Constitution?

Mr. EMERY. On the contrary, I should say it can do and ought to do all the things committed to it by the Constitution and no more.