State regulations, and, secondly, that inasmuch as this was a recognized article of commerce the State had no power to prohibit the manufacture of it for export, and that under the commerce power the authority of Congress attached to it, even in the course of manufacture, when it was manufactured even within the boundaries of the State, but only for export purposes. The court disposed of the first point upon the ground that it gratuitously presumed that the liquor was manufactured lawfully, which it was not, because the State of Iowa possessed the exclusive power under its police authority to determine whether alcoholic liquor could be manufactured or not, and as it was not manufactured for one of the four excepted purposes, it was unlawfully manufactured. Then, asked the court, does the fact that it was manufactured exclusively for commerce attach the commerce power to it? Why, no, they said, such a position is impossible, because if we took the position that because an article is manufactured even exclusively for export-and, mind you, that is the state of facts here the commerce power of Congress attached to it, then the power of Congress would exclusively attach to everything produced for export between the States. And what would be the result? This unanimous decision, written by Mr. Justice Lamar, goes to the very heart of the pending bill not only as a proposition of law, but as a remarkable exposition of the effect of its revolutionary policy.

"We think," said the court, "the construction contended for by plaintiff in error would extend the words of the grant to Congress, in the Constitution, beyond their obvious import and is inconsistent with its objects and scope."

Then it goes on to quote the section of the Constitution from which the commerce power is derived and some of the language in Gibbons v. Ogden. The court proceeds:

No distinction is more popular to the common mind or more clearly expressed In economic and political literature than that between manufactures and commerce. Manufacture is transformation--the fashioning of raw material into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce, and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation.

Then it proceeds to quote from the case of the County of Mobile v. Kimball (102 U. S.), as follows:

Commerce with foreign nations and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property as well as the purchase, sale, and exchange of commodities.

Then this court proceeds:

If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufacture, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest and the cotton planter of the South plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and vital

interests-interests which in their nature are, and must be, local in all the details of their successful management.

It is not necessary to enlarge on, but only to suggest, the impracticability of such a scheme when we regard the multitudinous affairs involved and the almost infinite variety of their minute details.

It was said by Chief Justice Marshall that it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the several States was to insure uniformity of regulation against conflicting and discriminating State legislation. See also County of Mobile v. Kimball, supra, 697 (26:240).

This being true, how can it further that object so to interpret the constitutional provision as to place upon Congress the obligation to exercise the supervisory powers just indicated? The demands of such a supervision would require not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many different climates and opportunities, could only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed, and incongruous legislation required by such an interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for Congress would be confined to the regulation not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen, but still there would always remain the possibility, and often would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the interminable trouble would be presented that whether the one power or the other should exercise the authority in question would be determined not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyz ing to the State governments, and more provocative of conflicts between the General Government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine.

Now, Senator Cummins referred the other day

Senator POMERENE. Before going into that matter I am not quite sure that I catch the force of your argument. I do not quite see how the Iowa case is a parallel with the matter under consideration. If this were a question involving the validity of some State legislation in one of the Carolinas, for instance, on the subject of the hours of labor, and the question was before our Supreme Court-a case was before the Supreme Court involving the validity of that State legislation then I could see how that Iowa case would be parallel. But this is a question not of State legislation affecting manufacturing but of Federal legislation affecting the power to regulate interstate commerce. So I do not quite see how your case is decisive of the case at bar.

Mr. EMERY. I will endeavor to point it out as I see it. The question presented in the Kidd v. Pearson case was, Did the commerce power attach to an article manufactured wholly within the State and otherwise within the exclusive jurisdiction of the State to regulate, because such article of manufacture was intended only for such commerce? The court answered, no, it did not; and that principle involves, if upheld, the right of Congress to say that because any commodity is produced to be exported to another State the commerce clause authorizes Congress to control the manufacture of that article.

The object of this bill, frankly stated, is to prevent the creation of an employment relation between children below a certain age and employers engaged in production.

Senator SMITH of South Carolina. You are contending, in the citation of this case from Iowa, that the court had decided that the Federal Government had no right under the commerce clause to do the very thing that this bill is contemplating trying to do?

Mr. EMERY. Exactly so.

Senator SMITH of South Carolina. And have denied it the right to do in that decision?

Mr. EMERY. I think it is perfectly parallel in principle. I think, indeed, it is strengthened by the fact that the defense rested upon just one proposition-that the commodity in question was made exclusively for export. The thing we are making, they said, is to go nowhere except into another State. It is not to be sold or used in this State, and for that reason, because it is manufactured only for export, the commerce power attaches to protect its manufacture and prevent interference by the State, which otherwise would have the power to regulate it.

Now, the object of this bill, frankly admitted, is to prohibit child employment. The means adopted to accomplish the regulation of that employment relation, existing wholly within a State and antecedent to any act of commerce, is to exclude the article produced from commerce between the States.

Now, I assume that this committee agrees that when you proceed to exercise constitutional power, it must be not only for a constitutional purpose but by the use of constitutional means. You may approve a purpose, yet object to the means by which it is to be accomplished. We may approve, and indeed applaud, the man who undertakes to provide for his old mother's declining years by giving her the means wherewith to live, but we utterly repudiate the idea that this purpose justifies him in separating a citizen from his wallet. His purpose is laudable; his means objectionable. We approve the one and condemn the other.

Now, I will ask you gentlemen to note that there is not only a distinction but a difference in the very nature of things between the control of production and the control of commerce, between the control of manufacture and the control of intercourse which the Supreme Court has said again and again is the meaning of the grant of that commerce power; that is, the right to regulate commerce is the right to prescribe the rules under which that commerce shall flow, and to regulate those engaged in it, but only while actually engaged in such commerce. I will presently show you that this court has invalidated legislation by Congress which undertook to regulate those who engaged in commerce when not actually engaged therein or when engaged in intrastate as distinguished from interstate commerce, and, mind you, the question there is only whether they were engaged in commerce between States or within the State. The proposition that you undertake to regulate here is not commerce between States as distinguished from commerce wholly within a State, but a condition of production within a State, not a circumstance of intercourse between States. Commerce and manufacture intercourse and production are two different and distinct things. One is completely ended before the other begins. One can not originate until the other is concluded. In a long line of decisions upon a variety of cases our courts have determined where the commerce power attaches to and relinquishes commodities in transit between the States.

In the commodity clause cases I beg you to notice the position which the court took to save the statute, for, obviously, from that decision, the principle here demanding recognition would have been declared invalid. In the commodities act you will recall that Congress forbade transportation by a carrier of commodities manufactured, mined, or controlled in their origin by the carrier. In the language of the court the statute in part undertook to "divorce the dual relation of public carrier and private transporter." There was no conflict in the mind of the court over the proposition that Congress could separate those two elements as a further means of protecting the shipper against discrimination. This the court conceded. But, said the court, and I am reading from the United States v. Delaware & Hudson (213 U. S., 407):

With these concessions in mind, and despite their far-reaching effect, if the contentions of the Government as to the meaning of the commodity clause be well founded, at least a majority of the court are of the opinion that we may not avoid the following grave constitutional questions:

Mind you what the contention of the Government was in that case. "This is a radical measure," said its counsel, and was intended to be such. We ask you to interpret this law to mean this: First, that a carrier who manufactures a commodity or mines coal not only can not transport it while it is the owner of it, but it can never transport that which it owned or mined, no matter who afterwards owns it; and, secondly, we ask you to hold that a stock interest in a corporation held by a carrier prevents that carrier from carrying anything produced by the corporation in which it possesses a stock interest. That was the position of the Government. Now, to this the court said:

If we are to take the position which the Government contends for, a majority of the court are of the opinion that we may not avoid the following grave constitutional questions.

Both questions are at issue here. I lay stress upon the word "control" here as well as the question of "prohibiting," because the two go together.

The court continues:

1. Whether the power of Congress to regulate commerce embraces the authority to control or prohibit the mining, manufacturing, production, or ownership of an article or commodity, not because of some inherent quality of the commodity, but simply because it may become the subject of interstate

commerce.

2. If the right to regulate commerce does not thus extend, can it be impliedly made to embrace subjects which it does not control by forbidding a railroad company engaged in interstate commerce from carrying lawful articles or commodities because at some time prior to the transportation it had manufatcured, mined, produced, or owned them, etc.? (U. S. v. Delaware & H. Co., 213 U. S., 406-7.)

The court said, substantially, to approve the Government's contention we are faced with these two propositions. But we do not pass upon them because we believe that we can so construe this act within its language and the intent of Congress as to keep it valid, and we believe that under the two permissible constructions here presented one of which, that asked by the Government, invalidates the legislation and the other of which sustains it-it is the duty of this court to give effect to the saving construction. The court then construes the act, not as the Government insisted, so as to

avoid approving either of the grave propositions, affirmative replies to which the court plainly intimated would compel it to annul the act. They looked squarely at the principle upon which this measure is predicated, and said, "We won't approve that, but we will, on the contrary, give a construction which saves the validity of the act."

So I submit the Commodity Clause cases clearly fortify the position we take.

Now, you gentlemen are familiar with the debates which took place on the Beveridge bill-I believe some members of this committee were members of the Senate at that time--and you will recall that the only distinction, except with respect to the rule of evidence, between this bill and the Beveridge bill is that the Beveridge bill undertook to penalize the carrier who received the commodity for transportation, while this bill penalizes the manufacturer or producer who offers it for transportation. That bill was extentively debated, and you will recollect that Senator Spooner and Senator Knox, who had just retired as Attorney General and who had directed the famous lottery case that has been referred to here, and which I think, is clearly distinguishable from any proposition at bar, utterly denied that the lottery case was any authority for the proposal contained in the Beveridge bill. Senator Knox went so far as to say that the Government endeavored to get the Supreme Court to approve such a principle, but they declined to do it. You will find that in the debates of the Senate, I think, on January 29, 1907 or 1908.

Mr. KITCHIN. 1907.

Mr. EMERY. While this debate was proceeding in the Senate-and I know of no other Senator on the floor who ever supported the constitutional proposals set forth by Mr. Beveridge the House had before it a proposed appropriation for the investigation of female and child labor, and Mr. Tawney, chairman of the Committee on Appropriations, raised the question of what jurisdiction, if any, Congress possessed over the subject of female and child labor, and what power, if any, it possessed under the Constitution to ameliorate its conditions. That question was referred to the Judiciary Committee of the House, and that committee reported February 7, 1907. It was a very able committee, and the report was unanimous. It was not a vague report. It deliberately took up and examined the very proposition here involved, Can Congress, under the commerce clause, regulate directly or indirectly the conditions of female and child labor engaged wholly within a State? The answer was no.

It is not a debatable question. It would be a reflection upon the intelligence of Congress to so legislate. It would be casting an unwelcome burden upon the Supreme Court to so legislate.

That is the precise language. You will find in the report set forth at great length the reasoning of the committee. (Rept. No. 7304, 59th Cong., 2d sess.)

Now, no commentator upon the Constitution, of recognized authority and who as examined this proposal, has given it approval. Mr. Taft, with a reputation as a jurist, has expressly declared in flat language that in his opinion it is a "usurpation" of the authority of the States. Mr. Watson, in his work on the Constitution,

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