Senator CLAPP. And that is determined in all cases first by Congress and finally by the Supreme Court of the United States? Mr. EMERY. Yes, sir; but I have in mind particularly

Senator CLAPP. Then within the Constitution, as interpreted first by Congress and secondly by the Supreme Court, there can be no dangers as pointed out there.

Mr. EMERY. None whatever, unless the rights not only of the States, but of individuals to local self-government is denied. Selfgovernment is not only an essential fundamental right of the States, but it is an essential fundamental right of the citizen, which existed prior to the adoption of the Constitution. It was not created by it, but is a right which the Constitution of the United States was brought into being to protect and perpetuate.

Senator CLAPP. But must be subordinate to whatever the Constitution has said, as interpreted by Congress and then by the courts?

Mr. EMERY. Yes, sir. But I have in mind particularly the argument so often made to support a continuously larger use of so-called "inherent" national powers, which it is urged will secure "uniformity" in legislation. I will show you presently that has been insistently presented in the Supreme Court to sustain what has been held to be unconstitutional legislation, and it is often said, too, that if we had a larger exercise of central legislative authority we would not have this collision of State laws, which is frequently inconvenient and exasperating to the citizens of the United States, but the price we should have to pay for uniformity thus obtained is the surrender of local self-government with its peculiar adaptability to immediate circumstance and condition.

Mr. Justice Hughes, in his recent address to the New York Bar Association in January, reverting to that contention, said:

But in the face of the difficulties already before us, and destined to increase in number and gravity, we remain convinced of the necessity of autonomous local governments. An overcentralized government would break down of its own weight. It is almost impossible even now for Congress in well nigh continuous session to keep up with its duties, and we can readily imagine what the future may have in store in legislative concerns. If we did not have States we should speedily have to create them. To preserve the essential elements of this system, without permitting necessary local autonomy to be destroyed by the unwarranted assertion of Federal power, and without allowing State action to throw out of gear the requisite machinery for unity of control in national concerns, demands the most intelligent appreciation of all the facts of our interrelated affairs and far more careful efforts in cooperation than we have hitherto put forth.

Senator POINDEXTER. I would like to ask you one question. You have no objection to the passage of a law similar to this by the States, have you?

Mr. EMERY. Not at all.

Senator POINDEXTER. The National Manufacturers' Association does not object to the regulation? You are basing your objection on the high ground of an invasion of the constitutional rights of the States?

Mr. EMERY. And of the individual who is entitled, as part of local self-government, to have the local regulatory authority pass fully upon the local conditions of manufacture as distinguished from conditions of commerce.

Senator CLAPP. Can the right of the State or the citizen be said to be invaded under our Constitution when Congress and the Su

preme Court in any given case have said that the act is warranted by the Constitution?

Mr. EMERY. No, indeed.

Senator CLAPP. Then it is simply a question of whether or not the condition warrants the act?

Mr. EMERY. Yes, sir; exactly. That is what I am proceeding to discuss.

Senator CLAPP. But men outside discuss things that when you get to the last analysis are remitted to Congress and the courts, and when pronounced upon by the court, can not, under our Constitution, be wrong.

Mr. EMERY. I am alluding to the popular argument, widely diffused, in support of this and other similar proposals of legislation, and I am only taking the liberty of pointing out the delicacy and difficulty of dealing with local subjects through the exercise of this national power.

Senator CLAPP. I do not like to interrupt you, but when I am making an argument I very much prefer the man I am making it to, if a certain matter suggests itself, to interrupt rather than to sit silent.

Mr. EMERY. I am very glad to have you do so, because it is my purpose if I can to be of assistance to the committee, and to that end I desire interruption. It does not interfere with the course of my argument in the least. It only permits me, if I have the power to do it, to make it more pointed.

I beg now to ask the indulgence of the committee while I examine the validity of this proposal, asserting first:

The commerce power in its origin and nature is distinct and different from the police power, although possessing at times the quality of police power in its exercise. It is the plenary and exclusive right of Congress to make rules governing intercourse between the States and foreign nations. It does not include the right to regulate production or manufacture except as incidental to its exercise, and it is limited in its exercise expressly and implicitly by various amendments of the Constitution.

This bill is a regulation of production under the guise of regulating commerce.

Turning back, for an instant, to the first great case to which all interpreters of the Constitution constantly revert as the first and greatest exposition of the nature and extent of the commerce power, that of Gibbons v. Odgen-I call your attention to what the great Chief Justice then said of the origin of this power:

In pursuing this inquiry at the bar, it has been said that the Constitution does not confer the right of intercourse between State and State. That right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing right and gave to Congress the power to regulate it.

You gentlemen are familiar with the conditions which caused the Federal Congress to be vested with the plenary and exclusive power "to regulate commerce between the States."

You, of course, recognize that it was the vexatious restrictions which the Colonies laid upon intercourse with each other during that unhappy period following the end of the Revolutionary War, and until the adoption of the Constitution, which the great historian

Fiske described as "the critical period of American history," which was one of the chief causes that impelled not only the adoption of the Constitution creating a Federal Union but the conferring of the exclusive power to regulate commerce between the States upon the Federal Government, subject only to such inhibitions as are contained in the Constitution.

You gentlemen are familiar with the fact that the conflict between the Colonies-especially those having ports on the seaboard, and the inland States, whose commerce was taxed by them, had reached such a point that the Colonies themselves were on the verge of civil war. Not only were New York and New Jersey at daggers points, but Virginia and Maryland, and you will recall that the Colony of Connecticut utterly suspended all commercial intercourse with the Colony of New York because of the exasperating tariff policy of the latter.

So, as has been well said again and again by the courts and historians, the purpose of centralizing the commerce power, was to make commerce free, not to transfer the power of laying upon citizens of the States the restrictions which they had resented. It was pointed out by the court in the Slaughterhouse cases, in 83 United States, that the fourth article of the Confederation was the source of that provision of the Constitution which guarantees that the privileges and immunities of each citizen of every State shall be those of the citizen of every cther State; and that the fourth amendment dealt with a feature of the flow of commerce between the Colonies which the Confederation was utterly unable to enforce. The fourth article of the Confederation to which the court there referred read:

ARTICLES OF CONFEDERATION.

Article IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof, respectively; provided, that such restriction shall not extend so far as to prevent the removal of property imported into any State to any other State, of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them.

In the case of Gibbons v. Ogden, Justice Marshall pointed out the difference in nature between the exercise of those police powers peculiar to the State and the commerce power conferred upon the National Legislature, and laid down the rule that has persisted to this day:

(Gibbons v. Ogden, 9 Wheat. :)

We know of no rule for construing the extent of such power other than is given by the language of the instrument which confers them taken in connection with the purpose for which they were conferred.

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But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a power remaining with the States.

That inspection laws may have a remote and considerable influence on commerce will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived can not be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or, it may be, for domestic use.

They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass.

No direct general power over these objects is granted to Congress, and consequently they remain subject to State legislation. If the legislative power of the Union can reach them it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. .

Not many years later there occurred a case interpreting the commerce power, which was the subject of not only strong argument and much public discussion but of a remarkable dissent by Mr. Justice Story which he refers to in his "Commentaries on the Constitution" and in which he relates the circumstances of his dissent, and points out as one of the strongest cases, which of course he accepted, the line of demarcation between the commerce power of the Nation and the police power of the respective States. I allude to the case of the city of New York v. Miln, to be found in 11 Peters, 102:

This act required the master of any ship arriving from a foreign port, or from one of the other States, within 24 hours after its arrival, to report to the mayor in writing, on oath or affirmation, the name, place of birth, last legal settlement, age, and occupation, of every passenger brought in such ship to the city of New York, or permitted to land at any place, or put on board any other ship with an intention of proceeding to the city, under a penalty of $75 for every passenger, to be paid by the master, owner, or consignee. It further required each master to give bond to the mayor, with two sureties, in a sum not exceeding $300 for each passenger not a citizen of the United States, to save harmless the mayor, etc., and the overseers of the poor from all expenses and charges, which might be incurred in the maintenance and support of such passenger, under a penalty of $500.

The court pointed out that in all these matters relating to the purely internal affairs of the State the fact that the exercise of the police power incidentally touched the commerce power itself did not invalidate the State's act, for its purpose was clearly to provide for the welfare of the State and its citizens by protecting them from the charge, through taxation, that would be laid upon them to support those who, by the circumstances of their condition, were likely to become public charges. The court said:

We plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That by virtue of this it is not only the right but the bounden and solemn duty of a State to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conclusive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of a State is complete, unqualified, and exclusive.

Now, they went on to say:

We are aware that it is at all times difficult to define any subject with proper precision and accuracy. If this be so in general, it is emphatically so in relation

to a subject so diversified and multifarious as the one which we are now considering.

If we were to attempt it we should say-

and this is the essential distinction between these powers

we should say that every law came within this description which concerned the welfare of the whole people of the State or any individual within it, whether it related to their rights or their duties, whether it respected them as men or as citizens of the State, whether in their public or private relations, whether it related to the rights of person or of property of the whole people of a State, or of any individual within it, and whose operation was within the territorial limits of the State and upon the persons and things within its jurisdiction.

That case has been quoted again and again by the Supreme Court with approval.

There are many cases that I might call to your attention, but I realize that you are familiar with them and I do not desire to consume your time needlessly. But, as a striking instance again of the sharp line of distinction between police power and commercial power, let me call your attention to a decision written by Chief Justice Chase in 1868, the case of De Witt v. The United States; I think it is 9 Howard.

Congress had enacted as part of revenue act a provision which forbade the mixing of naphtha and benzine, and prescribed a flash test for illuminating oil. A citizen of Michigan was arrested for selling benzine which violated this statute. He contended the act was not a valid exercise of the regulatory power of Congress, and it was defended on that ground; first, that it was an exercise of the taxing power in relation to internal revenue; secondly, that it "may' have been passed to protect the commerce of which benzine so made was to be a part. The Chief Justice wiped that away by pointing out that in the first place the act was in its nature an exercise of the police power and confined to the States, and that, secondly, it bore no relation to commerce.

Senator POMERENE. Was this an act of Congress?

Mr. EMERY. Yes, sir; it was an act of Congress, and the court invalidated the act and dismissed the prisoner.

A most striking case that seems to go to the very root of the question, whether this is a regulation of production or of commerce, is one that came from the State of the distinguished Senator from Iowa (Mr. Cummins), the case of Kidd v. Pearson, to be found in One hundred and twenty-eighth United States-I am reading from the law edition, United States Supreme Court Reports. The case is found on page 346

Senator POINDEXTER. What volume of the law edition is that?

Mr. EMERY. It is the thirty-second volume. The case was decided in 1888. The State of Iowa had passed a law prohibiting the manufacture of alcoholic spirits except for medicinal, mechanical, culinary, or sacramental purposes, and the defendant, Pearson, continued to manufacture distilled spirits, but solely for export from the State. He was arrested and convicted under the statute, and the Supreme Court of Iowa sustained his conviction. The case came into the Supreme Court of the United States upon a writ of error from that court.

It was contended by counsel for the prisoner that where a subject is national in its character the power of Congress is exclusive of all