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 though the conditions would be otherwise beyond the power of Congress. 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.

Senator CUMMINS. What is the relation you had in mind when you suggested that if a relation between prohibition and interstate commerce were established then such a law might be constitutional?

Mr. EMERY. It is this, Senator, and it is the kind of cases that support all the decisions under the Sherman Act applying to prohibition of certain contracts and certain operations effecting an undue restraint or monopoly of commerce. Thus we have Addystone Pipe & Steel case, 175 U. S., in which the court points out that Congress possesses the power to prohibit contracts made by persons, firms, or corporations, the necessary or intended effect of which is to regulate commerce. In other words, Congress having the exclusive power to regulate commerce or the right to prescribe the rules by which intercourse shall be governed, has the right to protect that intercourse from regulation or trespass by another, whether it be a State or a private citizen.

Senator LEWIS. May I interrupt for a question?

Mr. EMERY. Cetrainly.

Senator LEWIS. Senator Cummins had the same thought in his mind as I have, but I do not think he quite expressed it. A circuit court of the United States down in Tennessee the other day held as unconstitutional an act of Congress, which we passed and which was presented by Senator Smith of South Carolina, in which case the court went so far as to hold that because Congress had assumed, among other things they spoke about legislation carrying appropriations, originating in the Senate, being a violation of the Constitution

Senator ROBINSON (interposing). And legislation providing for the raising of revenue.

Senator LEWIS. Yes; they had that in there. Then the opinion proceeds to say, among other things, that Congress, in attempting to legislate upon a subject which in itself is executed solely and wholly within a State where it is undertaken, such subject is not within the power of Congress. Have you noticed the reason upon which they based that decision?

Mr. EMERY. I must confess I have not seen the opinion, Senator; so I hesitate to discuss the matter.

Senator LEWIS. It has not been brought to your attention?
Mr. EMERY. No, sir.

Senator ROBINSON. That provided for a tax, and dealt with the subject of cotton futures under the taxing power; and if I understand the decision correctly, it held that since the Constitution provides that bills for raising revenues must originate in the House of

Representatives, and this bill originated in the Senate, it was in violation of that provision of the Constitution.

Senator LEWIS. That is one feature, Senator, in which I am not particularly interested. It was the other. If the doctrine announced by that court is correct, Senator Cummins's suggestion is very appropriate. If that be truly the law then Congress can never do anything connected with interstate commerce where the act itself could be completed within a State. Here is a serious question, according to my way of thinking.

Senator ROBINSON. May I interrupt for a question, Senator?
Senator LEWIS. Certainly.

Senator ROBINSON. This bill provides that before goods can be shipped out of one State into another the shipper must obtain a certificate made in that State that the goods were not made by child labor and that child labor was not employed in their manufacture. Am I right about that?

Mr. EMERY. It provides that it shall be unlawful for any producer, manufacturer, or dealer to ship or deliver for shipment in interstate commerce the product of any mine or quarry situated in any State, which has been produced in whole or in part by the labor of children under the age of 16 years, or the product of any mill, cannery, workshop, factory, or manufacturing establishment in the United States which has been produced in whole or in part by the labor of children under the age of 14 years, or by the labor of children between the ages of 14 years and 16 years who work more than 8 hours in any one day, or more than 6 days in any one week, or after the hour of 7 o'clock p. m., or before the hour of o'clock a. m.

Senator LEWIS. Have you not a provision in this law that a certificate must be required before the goods are shipped? Mr. EMERY. Not in this measure. We are discussing the bill as

passed by the House.

Senator LEWIS. That is the one I am referring to. I am discussing a thing which does not exist. I apologize.

Senator CUMMINS. You say it is your opinion that Congress could not require that corporations engaged in interstate commerce shall be. organized under a law of the United States?

Mr. EMERY. I do not see at the moment, Senator, the relation between the commerce to be regulated and the purpose stated. Senator ROBINSON. Will you pardon me for going back to the question of Senator Lewis?

Mr. EMERY. Certainly.

Senator ROBINSON. I think he had in mind the proviso in line 24, at the bottom of page 3.

Mr. EMERY. With respect to guarantee?

Senator ROBINSON. Yes.

Mr. EMERY. That is another matter.

Senator ROBINSON. It has been urged that we ought to pass a law providing for no incorporation except under a Federal law, and that we could make it exclusive, compulsory.

Mr. EMERY. There are several bills of that character, Senator. I have heard them argued by very distinguished authorities with great interest; but I believe some of them went off on another phase

of the law. I confess I do not see the parity between that and the provisions under discussion.

Senator ROBINSON. They are engaged in interstate commerce? Mr. EMERY. Yes; but I do not see the relation. I do not know of any distinction made in any decision of the United States courts with reference to the right of corporations, persons, firms, and partnerships to engage in interstate commerce-that is, with respect to constitutional guarantees which holds that such guarantees apply only to natural persons. It is in the Constitution, and it has always been recognized by the courts, that there is no distinction between a natural person and a corporation, except the distinction with regard to the immunity clause.

Senator ROBINSON. I am not making that distinction. If they chose that form of incorporation, then they must incorporate under the Federal statute, if one existed. Of course, we have none now.

Mr. EMERY. No. I think that is answered by the statement in the employers' liability cases, where it was said that to engage in interstate commerce was not a privilege which depended upon Congress, and which Congress could arbitrarily condition.

Senator ROBINSON. Your proposition is that if the goods are themselves wholesome and sound, and that their use shall be wholesome, we can not go back of that and look into the conditions of production or by whom they are produced?

Mr. EMERY. I would not say you could not go back of that and inquire into the conditions of production or by whom they are produced, because you do go back in the case of misbranded or adulterated goods. But in this case you go back to examine the character of employment, the relationship existing between the manufacturer of the goods and those whom he hires to manufacture them. The employment contract, the relationship of employment, created and existing wholly within the territory of a State, is within the jurisdiction of that State under its police power.

Senator ROBINSON. Still, misbranded goods do not make an exception from the suggestion I have just made. I am assuming now that the goods when offered for shipment are sound, wholesome, not fraudulent in any form. I understand your position to be that the person who owns them has a right that can not be interfered with to put them in the course of an interstate shipment and that we can not go further back and inquire how or by whom they were produced. Mr. EMERY. I do not believe it to be within the power of Congress to exclude wholesome meat or wholesome bread from interstate carriage between the States, because there was a child 10 years old in the kitchen where the bread was baked or where the meat was cooked.

Senator ROBINSON. I was trying to get parallels, if I could.

Mr. EMERY. Assuming, as I do, under the decisions, that the inhibitions and the guarantees of the Constitution apply with equal force to corporations as they do to persons, then I know of nothing that would support a contention that would make a condition of engaging in commerce that the capital stock of the corporation had to be fully paid up, it being a State corporation.

Now, I beg to turn your attention to two cases which are greatly relied upon in argument to support the validity of this proposalthe lottery case, and the Hoke case, commonly known as the white

slave case. The lottery case, as you gentlemen well know, was the subject of a strong dissent, chiefly directed to a disagreement over whether or not a lottery ticket was an article of commerce, or whether it ought to be regarded as within the terms of those contracts which are held not subjects of commerce, like insurance policies or other contracts which merely establish a personal relation between parties thereto and were not, in themselves, articles of commerce. The court held that when a lottery ticket was transported by an independent carrier it was an article of commerce, but the court very carefully limits its decision in the case.

In sustaining the exclusion of lottery tickets from interstate commerce by the act of 1895 the court illustrates the exercise of the power of prohibition by appeal, first of all, to the diseased cattle act of 1884, which forbids the transportation of live stock affected with an infectious or communicable disease and by appeal to the decisions affirming the Sherman Act, notably the Addystone Pipe & Steel Co. v. United States (175 U. S., 211), in which that court sustained the power of Congress to enact a law "prohibiting citizens from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally, and collaterally, regulate to a greater or less degree commerce among the States."

The court denied that this decision led "necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the States any article or commodity or thing, of whatever kind or nature or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one State to another."

The court further says:

We may, however, repeat in this connection what the court has heretofore said, that the power of Congress to regulate commerce among the States, although plenary, can not be deemed arbitrary, since it is subject to such limitations or restrictions as are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument. It would not be difficult to imagine legislation that would be justly liable to such an objection as that stated and be hostile to the objects for the accomplishment of which Congress was invested with the general power to regulate commerce among the several States.

Senator CUMMINS. If you can imagine a state of society in which gambling was not against public policy, with the Constitution as it is now, would you have expected a different decision in the lottery case?

Mr. EMERY. I think in that case that Congress and the courts do not create but recognizes an inherent quality in the article which expresses the common judgment of the Nation.

Senator CUMMINS. Is it not true that it goes further, and that it recognizes an inherent immorality in the business of gambling?

Mr. EMERY. Lotteries had come into the Supreme Court of the United States 70 or 80 years before, and the courts had refused to recognize the validity of contracts predicated upon them or to protect such contracts, and this was but a last step in regulating the traffic in lottery tickets, a thing bad in itself, "a traffic in which," the court said, "no man may engage as a matter of right."

Senator CUMMINS. If child labor, the question mentioned in this bill, were generally recognized to be immoral, as gambling is, would you not consider them parallel?

Mr. EMERY. I would consider the regulation of the transportation of the child for that purpose or the regulation of the use of children in interstate commerce. I mean on any common carrier, like a messenger boy working for a telegraph or telephone company, where the carrier was within the clear jurisdiction of Congress.

Senator LEWIS. I argued the lottery case in the lower court and tried during that argument-in the higher court I tried to do the same thing to get the court to adopt a theory of a lottery ticket the same as that which applies to a policy of insurance, they having previously held that a policy of insurance was not an article of interstate commerce. The man had sent a ticket out and sent the money, actually in dollars and cents, which was the result of the lottery drawing; and the question was whether or not that could be inhibited by the United States, more on the ground that it was passing between States as the result of a thing that was contrary to good morals.

The question as to this bill is: Is it within the power of Congress to say that child labor is immoral merely because a thing is done by a child? Can Congress say that that thing per se is immoral when it violates any of the established doctrines which define it as immorality?

Mr. EMERY. To what would you refer the exercise of that power? Senator LEWIS. For instance, is it right, in your opinion, to say that child labor is immoral or illegal in itself, and, being such, that we could prohibit the results of it?

Mr. EMERY. Congress, if it did that, would repudiate the position it took in enacting legislation in the District of Columbia for the regulation of child labor.

I called attention this morning to the fact that I did not think that anyone contends that the employment of child labor per se is an evil. It is argued that the employment of child labor is an evil if such employment injures the health of the child or prevents him from securing an education, or something of that sort. By excepting agricultural occupations this bill argues that a child working on a farm is not injured, because he is working at an occupation that takes him out of doors and probably is calculated to better his health, rather than injure it. So this bill approves child work on the farm even under the age of 14 years, or if of the age of 14 and not over 16 it believes he may work over eight hours a day and not be injured.

Senator ROBINSON. If, for instance, the State of South Carolina had passed laws forbidding child labor in all cases under the age of 14, and for more than eight hours in any one day of children between the ages of 14 and 16, would this act be valid? Suppose that the State of South Carolina had heretofore passed a labor law forbidding any child under the age of 14 to be employed, or any child between the ages of 14 and 16 to be employed more than eight hours in any one day, would Congress have the power to pass this act? Mr. EMERY. If every State had?

Senator ROBINSON. No; if the State of South Carolina had.

Mr. EMERY. You mean, if the act in South Carolina was in the identical terms with the act proposed here, would that affect the validity of the exercise of the power of Congress?

Senator ROBINSON. Yes.