direct provision of that kind, for the reason that there is the same limitation on Federal power and Congressional action by the fifth amendment, which says no person shall be deprived of life, liberty, or property without due process of law; and for the added reason that the relation existing between those parties is beyond the pur view of the Federal authority; it is not within the enumerated powers conferred upon the Government and it can not be found in them by reasonable implication. Therefore it is as far beyond the jurisdiction of the Federal Government, as a sovereignty, as would be the case if it was a transaction in Canada or in France. And that consideration is especially proper, when applied to the District of Columbia, and to the instance cited by the chairman in Arizona. While it has the powers of a sovereign in the District of Columbia and in the Territories, there is upon the action of the Government therein the limitation of the fifth amendment which prohibits it from depriving any person of life, liberty, or property without due process of law, and if you gentlemen care to go into the history of the matter for it is new to everyone, I think, who sits in this committee except the chairman, and he was not in Congress at the time, though he came in shortly afterwards in the discussions on the existing eight-hour law in the Fifty-second Congress, or in 1892, which must have been the Fifty-second Congress

Mr. PAYSON. It was.

Mr. DAVENPORT (continuing). A proposition was made to amend the proposed bill by including any corporation in the District of Columbia chartered by the United States Government. An amendment of that kind was proposed by a Member by the name of Haugen. The CHAIRMAN. What was that amendment?

Mr. DAVENPORT. It was proposed to amend the bill so as to include all corporations chartered by Congress and doing business in the District of Columbia, the attempt being to get at the employment of the street-car employees and others.

Mr. PAYSON. To bring them within the provisions of the then proposed eight-hour law.

Mr. DAVENPORT. The gentleman proposing the amendment did not get it before the House in such a way that it could be acted upon, but there was a very general discussion in the House over the scope of that bill and the constitutional limitations upon Congress. Will you tell me, Mr. Chairman, if the majority of that Congress was Democratic or Republican?

The CHAIRMAN. It was a Democratic Congress.

Mr. DAVENPORT. Mr. Tarsney was chairman, I know, and the existing law was reported by him at that time.

The CHAIRMAN. It was a Democratic House; I do not know about the Senate.

Mr. DAVENPORT. Well, this matter was not discussed in the Senate at all. All the discussions in the Senate are in 3 inches of the Congressional Record of that time. It was stated, in the first place, that the purpose of this law was to make effective the provisions of the previous act of 1868. The act of 1868 had been passed fixing eight hours as the workday for Government employees, and it was not observed. There were decisions by one authority after another, and finally by the Supreme Court of the United States, and the result was

that it was held that the act of 1868 did nothing more nor less than establish a standard day of eight hours on Government works, and the Supreme Court of the United States had held that a man might bargain and sell his labor to the Government through a contractor on the public work and not be under that act. So the act of 1892 was prepared, advocated, and pushed to its passage upon the theory that it was the means adapted to enforce and make effective the law of 1868, but it was conceded that the Congress of the United States could not go beyond that; that it could not go beyond making provisions in regard to its own work, its own employees, and that a contractor on the public work was only another form of an employee of the Government; and so I say the friends of the bill and opponents of the bill almost unanimously, if not quite unanimously, agreed that the act of 1892 was going to the verge of the power of the Government to deal with this matter, and that it could only be justified upon the principle that the Government as an employeer, employing its own men upon its own works, was a sovereign at the same time that it was a contractor, and that as a sovereign dealing with its own property in this way it could enact that statute.

The CHAIRMAN. Pardon me, I do not want to interrupt you, but I think that is a matter of record in the argument elsewhere. I think the committee claimed for its justification that it had done all that could be done under the Constitution.

Mr. DAVENPORT. At any rate, a casual examination of a few pages of the Congressional Record, perhaps 10 or 15 pages, which contain the debate on this matter, shows that the statement I have made is correct, and very likely, as the Chairman suggests, it is a matter of record in the proceedings of this committee.

The CHAIRMAN. What we want to find out is whether they were right or not.

Mr. DAVENPORT. As has been often stated, there is this inability of the Congress as a sovereign to legislate directly in this matter as between the contractor and itself in chattel work, in which the title does not pass from the contractor until acceptance by the Government, or to legislate as to the relations between the contractor and the subcontractor, and his subcontractor, and so on ad infinitum. It was suggested and has always been contended here by the advocates of this legislation that while Congress could not do that by direct iegislation, it could have a stipulation inserted in Government contracts by which the parties immediately dealing with the Government would agree to a contract containing those stipulations by which the contractor would become the guarantor for all its subcontractors down the line.

I am not going to travel again over all the arguments which have been so lucidly presented by Mr. Hayden this morning in regard to the matter so far as it affects the Government and the original contractor. I come back to this. You gentlemen, of course, as just men and as wise legislators, having in view the welfare of the Government, which of course is a great business institution, will feel it incumbent upon you to in some way protect that contractor from the liabilities that he is going to assume in consequence of the failure of his subcontractors to work only eight hours in a day. Now, suppose you resorted to this particular means and you enacted that

not only in every contract made by the contractor with the Government, but in every subcontract between the contractor and his subcontractors, and so on down the line, there should be inserted a stipulation such as is provided here, whereby the subcontractors would agree to leave the determination of the matter to the Court of Claims or some Government official, and in that way seek to protect the contractor from the subcontractor, so that, in litigation between those parties, the State courts would be ousted of their jurisdiction and the subcontractor would be deprived of making a claim there that he had not violated it, although the Government official had found that he had, or that the party with whom he had contracted had waived the conditions of the subcontract. You will observe this. The subcontractor of the subcontractor might claim that that subcontractor had waived the conditions of his subcontract. That would not at all avail the original contractor with the Government in regard to the matter, because the absolute provisions of this bill are such that a waiver made by the original contractor to that subcontractor, either with or without the permission of the subcontractor who was his original contractor, would not operate to relieve the contractor of the responsibilty in his dealings with the Government under his contract with it.

I want to call your attention to certain propositions of law that seem to be very well established as bearing on the invalidity and impotence of such stipulations imposed either by direction of the Federal Government or by agreement between the parties as between the contractor and the subcontractor, and so on down the line. Now, it comes to this, that a proposition is made to make a valid stipulation in the contract between the original contractor and the subcontractor in a matter which is confessedly, or which must be conceded to be, utterly beyond the scope of the power of the Congress of the United States by direct legislation to reach; and I want to call the attention of the committee to the principles that are involved in it.

As I said the other day, it is a fundamental principle of constitutional law in our country that a State can forbid a corporation organized by another State from doing business within its limits. It can provide also that if a corporation organized by another State does business within a State the latter can revoke the license. It has also been recently held by the Supreme Court that the State may insert a provision in the permit to that foreign corporation to do business in the State that the corporation shall stipulate that if it shall remove a case into the United States court the license may be revoked. Now, we have those undoubted powers of the State; yet it is established overwhelmingly by the decisions of the Supreme Court of the United States that a party can not directly stipulate, and the State can not require a direct stipulation, that the party shall not resort to the Federal court by removal, and on this proposition I want to call your attention to the case of Insurance Company . Morse (20 Wallace).

Mr. PAYSON. That is to say, if I understand you, for I am following you with interest, if it is beyond the power of Congress to require the condition, it is not binding upon the party who assents to it?

Mr. DAVENPORT. No; that such a law does not give it any validity, and the agreement is void.

Mr. PAYSON. That is what I understood you to say.

The CHAIRMAN. You have just cited a case of which I admit I know nothing. Has the Supreme Court decided that the license may be revoked because the company refuses to be bound by the admittedly illegal stipulation?

Mr. DAVENPORT. Yes; they may annex a stipulation. Of course there is a divided court on the subject. I am calling attention to this for the purpose of showing that attempts to get at this thing by agreements are of no consequence, because of the inability of the party to stipulate and the inability of Congress to require the stipulation. I want to direct your attention more particularly again to the case of the Insurance Company v. Morse, in 20 Wallace, beginning at page 445. The syllabus is as follows:

1. The Constitution of the United States secures to citizens of another State than that in which suit is brought an absolute right to remove their causes into the Federal court, upon compliance with the terms of the twelfth section of the judiciary act.

Now, follow it closely. This will show you the vast importance of the distinction between agreeing not to do this and getting at it in another way.

2. The obstruction to this right imposed by a statute of a State, which enacts "that any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other States of the United States, desiring to transact any such business as aforesaid by any agent or agents in this State, shall first appoint an attorney in this State, on whom process of law can be served, containing an agreement that such company will not remove the suit for trial into the United States circuit court or Federal courts, and file in the office of the secretary of state a written instrument, duly signed and sealed, certifying such appointment, which shall continue until another attorney is substituted," is repugnant to the Constitution of the United States and the laws in pursuance thereof, and is illegal and void.

3. The agreement of the insurance company, filed in pursuance of the act, derives no support from a statute thus unconstitutional and is as void as it would be had no such statute been passed.

Mr. HASKINS. What State did that come up from?

Mr. DAVENPORT. Wisconsin. Now, there are two propositions involved in this. One is that an agreement of a party not to go into court of the subcontractor not to go into court-and fight the contractor in his State tribunal, or in a Federal tribunal if they are citizens of different States, is a thing which would be void. Of course as I go along you will make the application.

About every argument that is urged in support of the proposition that a man can bind himself by any sort of contract, that a man can take it or leave it, was urged by the attorneys in that case, and I want to call the attention of the committee to what the court says upon both propositions. The opinion was delivered by Mr. Justice Hunt and was dissented from by the Chief Justice, with whom concurred Mr. Justice Davis dissenting, who construed the act to be of another character and such as has since been held to be valid in the Kentucky case (202 U. S.). Mr. Justice Hunt said in this opinion:

The refusal of the State court of Wisconsin to allow the removal of the case into the United States circuit court of Wisconsin and its justification under the agreement of the company and the statute of Wisconsin form the subject of consideration in the present suit.

You understand that this company had done business for some time in Wisconsin, had filed its agreements and appointed its attorney,

and came under the provisions of the law, and had insured people under the law and the agreement it had made with the State, in which they stipulated that they would not remove their cases into the Federal court. That was the situation.

Mr. PAYSON. Then they were sued and attempted to remove.
Mr. DAVENPORT. Yes, and did remove.

Mr. PAYSON. Yes.

Mr. DAVENPORT. Continuing, the opinion says;

The State courts of Wisconsin held that this statute and their agreement under it justified a denial of the petition to remove the case into the United States court. The insurance company deny this proposition, and this is the point presented for consideration.

Is the agreement thus made by the insurance company one that, without reference to the statute, would bind the party making it?

Should a citizen of the State of New York enter into an agreement with the State of Wisconsin that in no event would he resort to the courts of that State or to the Federal tribunals within it to protect his rights of property, it could not be successfully contended that such an agreement would be valid.

Should a citizen of New York enter into an agreement with the State of Wisconsin, upon whatever consideration, that he would in no case, when called into the courts of that State or the Federal tribunals within it, demand a jury to determine any rights of property that might be called in question, but that such rights should in all such cases be submitted to arbitration or to the decision of a single judge, the authorities are clear that he would not thereby be debarred from resorting to the ordinary legal tribunals of the State. There is no sound principle upon which such agreements can be specifically enforced.

We see no difference in principle between the cases supposed and the case before us. It would be well, perhaps, to inject here that the Court of Claims is not a constitutional court; it is not a court to which parties are required to resort and can be required to resort in derogation of their rights to resort to the regularly constituted tribunals of the State or nation. It is only because that is the only place that they are permitted to sue the United States Government, which by reason of its sovereignty has the right to refuse to be sued anywhere, that they are compelled now to it in claims against the Government itself.

us.

Again:

We see no difference in principle between the cases supposed and the case before Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life or his freedom, or his substantial rights. In a criminal case he can not, as was held in Cancemi's case,a be tried in any other manner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men. In a civil case he may submit his particular suit by his own consent to an arbitration, or to the decision of a single judge. So he may omit to exercise his right to remove his suit to a Federal tribunal, as often as he thinks fit, in each recurring case. In these aspects any citizen may no doubt waive the rights to which he may be entitled. He can not, however, bind himself in advance by any agreement, which may be specifically enforced, thus to forfeit his rights at all times and on all occasions, whenever the case may be presented.

That the agreement of the insurance company is invalid upon the principles mentioned, numerous cases may be cited to prove. They show that agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void.

a 18 New York, 128.

Nute v. Hamilton Insurance Co. (6 Gray, 174); Cobb v. New England Marine Insurance Co., ib., 192; Hobbs v. Manhattan Insurance Co., 56 Maine, 421; Stephenson v. P. F. and M. Insurance Co., 54 id., 70; Scott v. Avery, 5 House of Lords Cases, 811.