of course, of 25,000,000 people who wanted to sell their labor, having their whole capital invested in the right to sell their labor, and the employers of the country desirous of purchasing it, and there being nothing in it that involved a question of good health or morals of the parties, and so beyond the domain of the police power, what would be said? As the Supreme Court said in the New York case, they would say, "This act of Congress is intended to accomplish by indirection that which every one would concede was beyond their direct control." I now want to read you some extracts from the hearings before the Senate Committee on Education and Labor in 1904:

The CHAIRMAN. The Senate bill is identically the same bill which was reported by me in behalf of the Senate Committee on Education and Labor in the last Congress. It is also the same bill, as I understand it, that has been introduced and is now being considered before the House Committee on Labor.

Mr. DAVENPORT. So I understand. There are many features of this bill about which I desire to say something to you, as lawyers and as Senators. But before I go into that discussion I want to talk to you a little, generally, about the principles involved in the whole matter.

The reason why the American Antiboycott Association is so much opposed to this bill is because its members and others are exposed to being boycotted by the American people through the United States Government. Every concern in this country that does not see fit to run its business in all respects covered by this bill, according to the requirements of this bill, is deprived of the opportunity to compete for the business of the Government, and they decidedly object to having a law placed upon the statute books which will have that result.

We will suppose that the Cramps have a contract to build a battle ship. They, of course, can not do all the work themselves and must let out subcontracts. We will suppose that they make a subcontract with the Bethlehem Iron Company for armor plates. The representative of the Government at the Bethlehem works reports to the proper officer of the Government

Then there was an interruption about some other matter.

Mr. DAVENPORT. When I was interrupted I was upon the subject of the situation that would arise when an inspector at the Bethlehem works reported to the Government official whose business it was to approve the payment of the money to the contractor, that at the Bethlehem works, say, 1,000 men had worked several days for a longer time than eight hours. Under the provisions of this bill the proper officer would, of course, withhold the money, and from that decision the contractor could appeal to the head of the Department. If the head of the Department decided against him he could appeal to the Court of Claims.

If the Court of Claims decided the matter against the contractor the Treasury of the United States is barred and closed to the contractor. There is no possibility of getting the money out of the Treasury. The matter is settled, so far as he is concerned, under the provisions of his contract. Then the subcontractor goes to his contractor and says: I want the money which you have agreed to pay me under my subcontract. The contractor says: The Government has held that money up; you are reported to have worked your men more than eight hours a day and many thousands of dollars have been withheld from me. The subcontractor says to the contractor: That is not true; I did not work my men more than eight hours a day. He might also say: Why, you knew when you called upon me to do that particular work that it would be necessary for me, in order to complete it, to work my men more than eight hours a day, and consequently you have waived the condition of the contract. Of course, that would at once bring the contractor and the subcontractor into collision. The subcontractor would bring suit against the contractor. If they were citizens of the same State he could bring the suit in the State court. If they were citizens of different States he could bring it in the United States circuit court where either the plaintiff or the defendant lived, according to the possibility of obtaining service.

I pass by the question whether a party could remove that case from the State court into the United States circuit court. Be that as it may, the question between the contractor and the subcontractor would have to be litigated in a State or Federal court before a jury. There the question would be: Did you violate this contract, or did you fail to perform your stipulations contained in the contract, or if you did fail, did the other party waive it? That question would have to be passed upon by a jury,

under the Constitution of the United States. The fact that the officer of the United States Government had withheld the money from the contractor would be of no avail and of no consequence. The decision of that point by the Court of Claims would not at all affect the liability of the contractor to the subcontractor, even if he had stipulated in his contract that the subcontractor should not violate this provision of law, in the event that the subcontractor said: Why, you have waived all these conditions. So that the necessary effect of this bill, as you have it drawn, is to expose the contractor not only to all of the unfortunate results to him of having his money held up by the Government, with a possibility that it will not only be delayed, but may be denied to him altogether, but you place him in a position where he is liable to be defeated in litigation with his subcontractor over the same point.

You understand, gentlemen, that the Court of Claims is not a constitutional court. It is an administrative device gotten up by the Government to decide upon claims against itself.

The CHAIRMAN. It is a statutory court.

Mr. DAVENPORT. It is a statutory court, but it is not a constitutional court, and there is nothing in this bill which requires a subcontractor to submit his cause to such a court, nor would it be of any avail if it did, as between him and the contractor.

Senator STONE. When you were interrupted, you were about to illustrate your argument as to the effect of this bill on subcontractors by supposing the case of a battle ship that was to be constructed. You said that if the Cramps had a contract with the Government to construct a battle ship they would not be permitted under this bill to work their men more than eight hours a day, and you were about to say that if they had to make a contract with some other corporation-the Carnegies, for instance-to furnish armor plate the men there could not work more than eight hours a day. Do you mean to say, and is it your opinion, that under this bill the Cramps would be liable for work done by the Carnegie Company, or by the employees of the Carnegie Company, in making armor plate, if the men worked more than eight hours a day on that armor plate?

Mr. DAVENPORT. Certainly; that is the very purpose of the bill. It makes the contractor a guarantor that the subcontractor will not permit his men to work more than eight hours in any calendar day. That is the purpose of it and that is the effect of it.

The distinguished gentlemen who have undoubtedly devoted a great deal of attention, and who have pondered over the different bearings of this matter and its different consequences, have come to the conclusion that that is as far as they can go. They can make the contractor responsible to the Government because, being a matter of contract he can contract away anything he has a mind to. Assuming that to be the case. I illustrated it by the instance of the Cramps and the Bethlehem Company. To be as pointed and concise as I can, and in order not to repeat and not to annoy you, I want to say to you that you put the contractor between the upper and the nether millstone and he can not escape from it. When he gets through with his difficulty with the Government, his difficulties have just begun, because in all the hurry and confusion of the building of a vessel like a battle ship-and I use that merely as an illustration-the relations between him and his subcontractor are such that the subcontractor can very easily and very readily say: You waived that stipulation which you put into my contract. It will not help him as against the Government, because he is absolutely required by his contract to be responsible for it.

The CHAIRMAN. If you have no objection to answering, I should like to ask you a question right there; you know more of the Senate history of this bill than I do. The very point which you have been urging was present, not as you present it, but in another aspect, at the original drawing of this bill, and provision was inserted in the bill that no officer on the part of the Government should have the power to waive the stipulations provided for in the contract. Somewhere in the travels of the bill from one House to the other that provision has disappeared. The original bill as it left the committee provided:

That no person on behalf of the United States, or any Territory, or the District of Columbia, shall rebate or remit any penalty imposed under any provision or stipulation herein provided for, unless upon a finding which he shall make up and certify that such penalty was imposed by reason of an error in fact.

That is not as broad as I had it in mind, and does not seem to meet the purposes for which it was intended. The question present was whether, under a bill directing anybody who represented the Govern

ment to insert in every such contract such a stipulation, it did not still remain in the power of the Government, having contracted for a dry dock, if you please, to be built in forty-two months, to say some day, "We would like to have that dry dock in thirty-six months," and thereby waive the whole business?

Mr. DAVENPORT. I suppose it would be, but it would depend. We will suppose that the construction adopted by the attorney, whoever he was, solicitor-general, or whatever you call him, of the Department of Commerce and Labor, to whom this matter was referred once, that this bill does not touch, does not apply to public buildings, because that is governed by the act of 1892, is not correct, and it does apply, so that the criminal provisions of the act of 1892 apply to the public works of the United States, and then the contractor who feels thus, in making his contract, inserts the stipulation that in addition to all that he will forfeit the sum of $5 for each and every man. I suppose that in that class of contracts such a waiver as that would not be permitted, because it would involve a criminal act. Mr. Gardner, myself, and I suppose everybody else here thought and believed that it would apply to all public buildings, for instance, in the District of Columbia, in contracts of that kind; but here comes the solicitor of the Department of Commerce and Labor, and he says that it does not apply to those at all, because there is in this bill a provision that nothing in it shall alter, amend, or repeal the provisions of the act of 1892.

That excepts from the operation of this bill all that vast amount of public work which is done for the Government throughout this whole great country. There is that radical difference of construction to be settled some time or other by the Supreme Court, but assuming our construction to be correct, then I say that they could not waive any provisions that would bring them in conflict with the criminal law.

Mr. EMERY. May I ask you just for the purpose of the record, in view of what you have just stated there, that if a contractor on a public building, acting under the belief expressed by the law officer of the Government that this bill did not apply to public buildings, entered into or carried out a contract for the erection of a public building in which he did not have the stipulation required by this bill, and the courts then passed on this question and held that those would apply to public buildings, would the contractor have a valid contract with the Government?

Mr. DAVENPORT. I do not think he would; I think he has to take his chances. There is the law; ignorance of the law excuses no man, especially when he comes to make contracts. If he should have the mistaken idea, or his attorney should advise him, that the opinion of the solicitor was correct, if he made a contract and then afterwards it was held by the courts that it did apply to those, then he would be in the position, it would seem to me, of having made an unlawful contract, one that was prohibited by law. Certainly, no one would think, would he, if in the teeth of this law a man made a contract with the Government that did not contain this stipulation, that he could enforce it, when the positive direction of the Government is that the contract shall contain that stipulation? At any rate he can not sue the Government except in the Court of Claims. The Government is a sovereign; we can not go into the ordinary courts and sue it.

The CHAIRMAN. And the Government is a sovereign at all times. Mr. DAVENPORT. But not all that it does, the Supreme Court says, is an act of sovereignty. It is an individual; it has the same rights of contracting that any individual has, they say, bit of course its privilege as a sovereign prevents it from being sued in any court in which it is not willing to be sued? I understand they got up the Court of Claims for the purpose of mitigating somewhat that burden on those who do business with the Government.

Talking about that thing we were talking about yesterday, Mr. Chairman, there is a provision in this bill that it shall not apply to materials or articles which may be usually bought in the open market, whether made to conform to particular specifications or not, or for the purchase of supplies by the Government, whether made to conform to particular specifications or not. It does seem to me that there is a direct conflict, an inconsistency, in those provisions. The limitation as to what may usually be bought in the open market applies to articles or materials, whether made to conform to particular specifications or not, and when you come to the word "supplies," there is not a supply that is not an article, or in some instances, you may say, a "material," and here you have in the same bill a provision that limits the exception of those articles to only such as can be usually bought in the open market, and then the same articles without such a provision in there.

The CHAIRMAN. I was impressed by your thought yesterday, which you seemed to entertain, that there was an inconsistency. I confess that I did not see deep enough to see the inconsistency in saying a thing twice instead of saying it once.

Mr. DAVENPORT. No, it says it differently twice; that is the trouble. Here we have it: "Nothing in this act shall apply to contracts for such materials or articles as may usually be bought in the open market, whether made to conform to particular specifications or not, or for the purchase of supplies by the Government," not such as may usually be bought in the open market, but absolutely, whether manufactured to conform to particular specifications or not. Every article that falls within the class of supplies is either a material or an article, of course. The limitation in the first clause is to such as may be usually bought in the open market. So long as the thing is a supply, and whatever that is, it is certainly an article or a material, you are not to inquire as to that, whether or not they are such as may be usually bought in the open market. Now, what on earth is there that does not come under that last exception?

The CHAIRMAN. Let us see. They were seeking, I suppose, under advice from the Departments, to apply to things those names by which they are generally known in Department nomenclature. It is very common to speak of "writing materials," for instance; you mean paper, envelopes, pencils, pens, and ink. In speaking of furniture it is common in the trade, or down here, to speak of them as "articles of furniture." "Army supplies" means clothing, blankets, tents, flour, beef, compressed vegetables, and pepper and salt. Mr. DAVENPORT. Uniforms?

Mr. EMERY. Do you want to include rifles?

The CHAIRMAN. I have intended always, and do yet, to interrogate the War Department on that question. According to the memoranda which I find I have with reference to the original bill, guns, cartridge

boxes, caps-we do not use caps now-bayonets, belts, are universally spoken of as "equipment." Under just what provision they would put that exception I am not prepared to answer at this moment, nor do I know what Judge McComas thought.

Mr. DAVENPORT. Do you not think that in view of the highly penal provisions of this bill they would give it as broad a construction as the word would permit?

The CHAIRMAN. I will read from the report. This is in the report of the Secretary of Commerce and Labor:

The exact significance of the terms "in open market" and "supplies" in the third and fourth excepted classes is not clear. For example, What would be comprehended under "such materials and articles as may be usually bought in the open market?" What would be comprehended under the supplies, under the expression "purchase of supplies by the Government?" Would the bill, as now drawn, apply to powder, smokeless or other, food for the Army or Navy, rifles for the Army or Navy, clothing for the Army or Navy, mail bags, postal cards and stamped envelopes for the Post-Office Department, paper for money, paper for the Government Printing Office, packing boxes and file cases, according to order?

My investigation of that subject and the use of those words dates back to 1893 or 1894. In my judgment, those articles would fall under the following classifications: Food for the Army and Navy, supply; clothing for the Army and Navy, supply; mail bags, carried through the appropriation bills as equipment; postal cards and stamped envelopes for the Post-Oflice Department, carried through 20 appropriation bills as a supply; paper for money, supply; paper for the Government Printing Office, supply; packing boxes and file cases-file cases, I think, are carried as a supply; packing boxes are carried either by name or in a miscellaneous item in which they are named as miscellaneous.、

Mr. DAVENPORT. You will notice in that connection, "whether made to conform to particular specifications or not" is in the bill, so that anything which may be called a supply is not within the first limitation, "such as may be bought in the open market." Granting that all those are, what is the reason all the rest are not?

The CHAIRMAN. I forgot the tents. He does not mention tents under the Army, here; he might have done that.

Mr. EMERY. Do you put rifles in as a supply?

The CHAIRMAN. Rifles seem to be carried through the statutory designations and in the Department nomenclature as equipment. Mr. EMERY. Then, of course, they would have to fall into one of these heads under this bill.

The CHAIRMAN. That is a question, whether the term "equipment" ought to be in the bill.

Mr. EMERY. Where would the things termed "equipment" fall under the three subdivisions, articles, materials, or supplies; those are the only distinctions there?

The CHAIRMAN. They are in the bill. I suppose that it was for that purpose that Judge McComas inserted "articles."

Mr. EMERY. Then that would apply to ordnance, the same way,

cannon?

The CHAIRMAN. If it would apply to a little gun, it would apply to a big one.

Mr. DAVENPORT. What would you say about a launch-would not that be an article? You can buy launches anywhere in the open. market.