takes the same position. Mr. Willoughby took the same position, but I understand, from the statement of Mr. Parkinson here, that he has since modified his opinion. It does not appear, I understand, in any later version of his works. Perhaps it will, but if you gentlemen are interested, I suggest that you examine the disapproving opinion in order that you may see if its reasoning is at all affected by the subsequent modification. All the weight of authority is against this proposal.

Now we state, as a second contention, that the intention of the manufacturer to export in commerce can not be used as a basis upon which to predicate this power.

Such

Persons, firms, or corporations engaging in interstate commerce, or producing for shipment therein, are not subject to the commercial power of Congress save while actually engaged in interstate transactions or operating or using instrumentalities of commerce. persons, firms, and corporations, while producing commodities for interstate transportation, and before shipping them from the State of origin to the State of destination, are subject to and entitled to the local regulation of such production by the State.

If this bill predicates its authority to regulate production upon the fact that the producer intends to, or ultimately does, ship his commodity in interstate commerce, it is an invalid exercise of the commercial power. By the terms of the fourth section of the bill it does assert a right to regulate production because the subject matter of regulation is prepared or held for shipment in interstate com

merce.

Of course, if Congress possesses the power to exclude from commerce the products of child labor, it unquestionably possesses the power to use such means as are necessary and appropriate to enforce its will; but the proposal contained in the fourth section of this bill, that the Secretary of Labor shall provide for national factory inspection, by invading and scrutinizing all those places in which articles are produced or held for interstate commerce, obviously predicates the right to inspect or to regulate upon the fact that the article, while held in the territory and subject to the jurisdiction of the State of its origin, is intended to go into interstate commerce. You predicate your authority for inspection upon that proposition

Senator POINDEXTER. All that is directed rather to the secondary matters of the enforcement of the law.

Mr. EMERY. Yes, sir. I do not see anything in that if you possess the primary power to exclude, for then your power to provide the means by which to execute your will can not be questioned.

Senator POINDEXTER. As to the main question of the power of Congress to interpose an objection to the shipment of an article out of the State, that is the principal question here, and you deny the constitutionality of that, I understand?

Mr. EMERY. Yes, sir; but I say this is part of the original proposition. If the original proposition is right, if it is a valid exercise of the commerce power, if this is a regulation of commerce and not of production, I do not question your right to use appropriate means to enforce it. But I do say the very terms of the inspection system by which you undertake to enforce it is a declaration of your intent to predicate your authority upon the proposition that because an

article is destined or intended for interstate commerce but still within the State of its origin it is within reach of the commerce power, and I want to call your attention now to a case which meets that contention squarely.

Senator TOWNSEND. Let me ask you a question there. Do you deny that Congress would have any right to regulate the shipment of these goods in commerce if it did not apply back to the manufacturer of them; for instance, could we put an imposition on the railroads, preventing shipments in interstate commerce?

Mr. EMERY. I want to discuss that, if I may, under another heading, when I undertake to discuss contraband or outlawed articles. That is a distinct proposition.

Senator POINDEXTER. Before you take up that case, if it is not confusing, I want to ask something in regard to this Kidd case. The question there was not involved, was it, at all, as to the power of Congress to prohibit the shipment of liquors from one State into another?

Mr. EMERY. Are you speaking of the power of Congress to prohibit the shipment of liquors?

Senator POINDEXTER. Yes.

Mr. EMERY. That question, of course, is not at issue anywhere. Senator POINDEXTER. Well, a similar question is the principal one in this bill-the power of Congress to prohibit the shipment of certain articles from one State to another. That is the main question involved in this bill, and it was not involved at all in the Kidd case. Mr. EMERY. Pardon me; I think the Kidd case is the strongest case to be stated for the bill, for this reason: You are not undertaking in this bill to prohibit the shipment of articles in interstate commerce because of anything inherently bad in the article itself, but you look back to conditions under which it was made, to a contract between the employer and the child, the employment relationship, and you say that because of that employment relationship these articles, otherwise good, shall be prohibited in commerce. In other words, you say and I shall presently consider the rule of construction if it be disputed-you say on the face of this bill that because you employ children in the production of an article under conditions which are in violation of the standard established by Congress, for that reason alone we exclude the goods from commerce. A lump of coal coming from a mine in which one child is employed below the prohibited age becomes an illicit article of commerce not because there is anything wrong with that coal, or that it can be distinguished from any other piece of coal, but because upon inspecting that mine you find employed a child under age. By virtue of the fact that he is in the mine you assume through a rule of evidence that he has contributed to the production of that commodity, and you exclude it from commerce.

Senator POINDEXTER. I see the point there, and I think that is an arguable question. I was only referring to the Kidd case because you quoted that as being a case applicable here. It seems to me it does not involve the point and does not touch the point that you are now arguing. You say that these articles manufactured by child labor in themselves are innocuous. The Kidd case was dealing with liquor

Mr. EMERY. Yes, sir.

Senator POINDEXTER. Which may be held to be deleterious, and, secondly, may be prohibited in commerce. So the Supreme Court, in deciding the Kidd case, did not lay down any rule whatever as to denying Congress the power in the matters that were involved in that case to do what the proponents of this bill are seeking to do.

Mr. EMERY. Let us see whether it did or not. The proposal in the Kidd case is this, assuming just what you say: Here is an article that may be declared contraband in commerce. Assuming that to be true, if the power of Congress is not great enough to say that a contraband article or an article that may be declared contraband does not have attached to it the commerce power when it is made solely for export, how does that fortify the position of one who says that an article which by its nature is not contraband can have the commerce power attached to it during its manufacture, not because it is produced under conditions that affect the health of its prospective consumer, or because it is inherently bad in itself, but because it is produced under an employment contract which is a recognized legal relationship in the State in which it is manufactured?

Now, let me call your attention to the case of Coe v. Erroll (116 U. S., 517), where a lumberman cut his logs and floated them down a stream in the State of New Hampshire. They were destined, I think, for the State of Maine. They flowed down the stream on the banks of which they had been cut to the town of Errol, and there they were tied up for some time. There the county undertook to tax them, and the defense was set up that they were commodities intended for shipment and on their way to another State, and that the commerce power attached to them and protected them against taxation, because to impose a tax upon such an article of commerce was to burden that commerce, and therefore regulate it. The Supreme Court on appeal rejected this contention and pointed out that logs had not become articles of commerce; that there was and must be a definite time at which the commerce power as distinguished from the police power, attached to an article, and that, said the court, was when the commodity in question had in its state of origin been committed to a carrier for shipment to its destination in another State. Up to that time it was completely within the control of the State for regulatory purposes, and its status was entirely unaffected by the shipping intention of the producer.

In this branch of the discussion I want to call your attention to another very important question. I know you gentlemen considered it when you had the trade commission bill before you. I remember it was referred to in the very interesting argument then made by the Senator from Ohio-and that is on this proposition. Does the fact that one engages in interstate commerce submit him wholly to the regulating power of commerce, and is there any distinction between such regulatory power over a person, a firm, or corporation? I contend that there is no distinction in the exercise of the commerce power over a person, firm, or corporation engaged in commerce, because a corporation is a person within the meaning of the fourth, fifth, and fourteenth amendments. The only distinction that has ever been made in applying the constitutional guarantees to a corporation as distinguished from a natural person, is that immunity from self-incrimination is a personal right, and an officer of a cor

poration may claim it for himself but not on behalf of his corporation.

Not only has the Supreme Court never held that because one engages in commerce, even as a carrier, chiefly engaged in commerce. between the States, he is submitted wholly to the regulation of Congress, but that court invalidated the first employer's liability_act in which counsel for the Government asserted that theory. (Employer's Liability cases, 207 U. S.)

Senator SMITH of South Carolina. While you are on this matter, I would like to know what is your opinion-if this is held constitutional, that the Federal Government has the right to take cognizance of and control the production within a State of an article which may become an article of export, or interstate-as to whether or not it would then have the right to say, for instance, in the cotton fields of the South, where the cotton which is gathered and ginned, which is a process of manufacture that it may not be exported if certain classes of people are engaged in the picking and ginning of that cotton? Why is that not a parallel to this case?

Mr. EMERY. It seems to me it is exactly parallel. That is exactly why the principle is applied here to a subject matter which excites the sympathy of every well-intentioned man, appeals to one's own most natural human feelings, and confuses one's mind with respect to the effect of the principle of regulation proposed.

Let us take, for instance, this serious question which Senator Smith has raised. Are we to take the position which Mr. Parkinson suggested the other day, that the commerce power can be used to meet every pending question of morals, health, or labor? That Congress is to step back, as is proposed here, into any or every State where marriage or health or factory laws are not up to its standards and adjust them by denying the privilege of intercourse until they are accepted.

Surely there are many more evils that you gentlemen recognize clearly that however impatient we become must be worked out by the States or reached by constitutional amendment. The first, I should say, is the evil of a lack of uniform marriage and divorce laws. Every civilized nation realizes that the marital relation is the very foundation of national morals and well-being, and yet here is a State South Carolina-which has no divorce laws, and there is the State of Nevada which has many divorce laws. Many of our States decline to recognize divorces obtained in other States and persons divorced in one State remarry but live in immorality when they go to another.

Senator POMERENE. You ought not to refer to Nevada in that way. Mr. EMERY. Here is a recognized evil. Does any member of this committee think that because it is a recognized evil Congress can set up a standard of divorce and say that for the protection of national morality a person divorced in any State of the Union, for causes other than those declared in those standards, shall not enjoy the facilities of interstate commerce?

Senator POINDEXTER. Is that not just a question of the reasonableness of the regulation? We have set up a statute, the so-called Mann Act, dealing with morality under the interstate-commerce clause. Senator Smith mentioned the power with respect to a similar principle, to exclude cotton ginned under certain conditions. There

again it seems to me to be a question of condition. If it was ginned under such conditions as would generate disease, for instance, or if it was infected cotton, manufactured or ginned under infected or diseased surroundings, and liable to promote disease, Congress could put an embargo on it. We have a question now before Congress, and I have not heard the constitutionality of it questioned, with respect to putting an embargo on arms and ammunition-not to regulate it, but prohibit it.

Mr. EMERY. That is another issue entirely.

Senator POINDEXTER. It comes under the power of commerce to regulate foreign commerce?

Mr. EMERY. Yes; foreign commerce.

Senator POINDEXTER. And it has the same power to regulate interstate commerce.

Mr. EMERY. Well, I must confess that I deny that, Senator. But I do not think it is at issue here. If you will permit me, I want to call your attention to the Employers' Liability case, because of the statement I made, if I get too far from it I shall not be able to connect it with the proposition I laid down.

You will recall that when Congress passed the first employers' liability law it went to the Supreme Court in the Employers' Liability cases (207 U. S., 463). The court said:

66

Now, the rule which the statute establishes for the purpose of determining whether all the subjects to which it relates are to be controlled by its provisions, is that anyone who conducts such business be a common carrier engaged in trade or commerce in the District of Columbia, or in any Territory of the United States, or between the several States."

That is, the subjects stated all come within the statute when the individual or corporation is a common carrier who engages in trade or commerce between the States, etc. From this it follows that the statute deals with all the concerns of the individuals or corporations to which it relates if they engage as common carriers in trade or commerce as between the States, etc., and does not confine itself to the interstate-commerce business which may be done by such persons.

Stated in another form, the statute is addressed to the individuals or corporations who are engaged in interstate commerce and is not confined solely to regulating the interstate-commerce business which such persons may do that is, it regulates the persons because they engage in interstate commerce and does not alone regulate the business of interstate commerce.

3. It remains only to consider the contention which we have previously quoted, that the act is constitutional, although it embraces subjects not within the power of Congress to regulate commerce, because one who engages in interstate commerce thereby submits all his business concerns to the regulating power of Congress. To state the proposition is to refute it. It assumes that, because one engages in interstate commerce, he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely state concern. It rests upon the conception that the Constitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which can not be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress

That bites into the very heart of this measure—

It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the States as to all conceivable matters which, from the beginning, have been, and must continue to be, under their control as long as the Constitution endures. (pp. 502-503.)