"Are we prepared to say that a provision which is in effect a prohibition of the carriage of such articles from State to State is not a fit or appropriate mode for the regulation of that particular kind of commerce? If lottery traffic, carried on through interstate commerce, is a matter of which Congress may take cognizance and over which its power may be exerted, can it be possible that it must tolerate the traffic and simply regulate the manner in which it may be carried on? Or may not Congress, for the protection of the peope of all the States and under the power to regulate interstate commerce, devise such means, within the scope of the Constitution and not prohibited by it, as will drive that traffic out of commerce among the States?"

"The act of July 2, 1890, known as the Sherman antitrust act, and which is based upon the power of Congress to regulate commerce among the States, is an illustration of the proposition that regulation may take the form of prohibition."

Champion v. Ames (188 U. S., 321), Justice Harlan :

"We should hesitate long before adjudging that an evil of such appalling character carried on through interstate commerce can not be met and crushed by the only power competent to that end."

OBJECTION 6. "IT AFFECTS INTRASTATE COMMERCE AS WELL AS INTERSTATE "" COMMERCE.

Any State may continue to exploit its children in producing goods for home consumption. But under this law the citizens of a State can protect themselves against purchasing goods made under conditions they would not tolerate.

The position of the Federal court in the case of Stockton v. Baltimore & New York Railroad Co. is clear (32 Fed., 9):

"We think that the power of Congress is supreme over the whole subject (interstate commerce), unimpeded and unembarrassed by State laws; that in this matter the country is one, and the work to be accomplished is national, and that State interests, State jealousies, and State prejudices do not require to be consulted. In matters of foreign and interstate commerce there are no States."

Also in the case of Baltimore & Ohio Railroad v. Interstate Commerce Commission (221 U. S., 612), Justice Hughes:

ness.

*

66 The act of March 4, 1907, * * * regulating the hours of labor of railway employees engaged in interstate commerce and requiring carriers to make reports in regard thereto is not unconstitutional as beyond the power of Congress, because it applies to railroads and employees engaged in intrastate busi* * The length of time employed has a direct relation to efficiency of employees, and the imposition of reasonable restrictions in regard thereto is not an unconstitutional interference with the liberty of contract. The power of Congress to make regulations in regard to agencies for interstate commerce is not defeated by the fact that the agencies regulated are also connected with intrastate commerce."

Through regulating interstate commerce Congress has power even to regulate the conditions of manufacture. This is set forth by Justice McKenna in Hoke v. United States (227 U. S., 308):

“Let an article be debased by adulteration, let it be misrepresented by false branding, and Congress may exercise its prohibitive power. It may be that Congress could not prohibit that manufacture of the article in a State. It may be that Congress could not prohibit in all of its conditions its sale within a State. But Congress may prohibit its transportation between the States, and by that means defeat the motive and evils of its manufacture. How far-reaching are the power and the means which may be used to secure its complete exercise we have expressed in Hipolite Egg Co. v. United States (220 U. S., 45; 55 L. ed., 364; 31 Sup. Ct. Rep., 364)."

In re Rahrer (140 U. S., 545). (In the case at bar, petitioner was arrested by Kansas State authorities for selling imported liquor on August 9, 1890, contrary to laws of Kansas. The act of Congress had gone into effect August 8, 1890, providing that imported liquors should be subject to the operation and effect of the State laws to the same extent and in the same manner as though the liquors had been produced in the State; and the Kansas law forbade the sale.) Chief Justice Fuller.

"No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which

divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so."

If we correctly interpret the court this means that Congress has power, not only to enforce the laws of a State in relation to goods shipped into it, but can even divest the goods of the character of “subjects of interstate commerce,” by preventing their shipment across a State line.

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Applying the principle directly to our case the court may consistently say no reason is perceived why, if Congress chooses to provide that goods manufactured by the labor of children for interstate commerce shall be governed by a rule which divests them of that character, i. e., prevents them from becoming subjects of interstate commerce, it is not competent to do so."

The effect on intrastate commerce would be far less sweeping in our case than in the Rahrer case. For the enforcement of the Kansas law would directly affect the volume of liquor manufactured by reducing the available market. In our case the volume is not affected, but only the conditions of production imposed in the interest of public health and welfare. Presumably, the manufacturer can produce as much goods with adult labor as with child labor, hence the production of goods is in nowise restricted-only regulated.

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OBJECTION 7. GRANTING THAT CONGRESS HAS POWER TO FORBID INTERSTATE COMMERCE IN GOODS THAT WOULD INJURE THE CONSUMER (AS IN THE FOOD AND DRUGS ACT) THERE IS NOTHING DIRECTLY INJURIOUS IN GOODS MADE BY CHILDREN."

But the consumer may claim the right in the interest of social justice to know what kind of goods he is purchasing. He may be unwilling to become a party to a system of production which endangers or debases the standards of citizenship by affecting the health or education of children. He may wish to protect himself against encouraging so destructive a policy, but is powerless to do so. Nothing on the goods can enlighten him as to their source. The laws of his State can not protect him, even in a State with laws corresponding to the standards sought in this bill, as in Massachusetts or Ohio, and he may justly claim that in procuring the necessaries of life he is forced to become the enemy of his country. At present he has no escape. He is therefore injured as a consumer by having his principles outraged.

See United States v. Brigantine William (district court of United States for Massachusetts, 1808). Judge Davis:

"It was perceived that under the power of regulating commerce Congress would be authorized to abridge it in favor of the great principles of humanity and justice."

See United States v. Marigold (9 How., 560 U. S.). Justice Daniel :

"Such exclusion can not be limited to particular classes or descriptions of commercial subjects; it may embrace manufactures, bullions, coins, or any other thing. The power once conceded it may operate on any and every subject of commerce to which the legislative discretion may apply it."

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OBJECTION 8.. THIS BILL WOULD ESTABLISH A PRECEDENT BY WHICH THE POWER OF CONGRESS OVER INTERSTATE COMMERCE WOULD BE UNLIMITED."

We answer that the precedent already exists. When the American Colonies revolted against the English Government, expressing their protest in the Declaration of Independence, and making it good in the Revolutionary War, the power to regulate commerce among the Colonies and with foreign powers left England and crossed to this side of the Atlantic. It existed in the Colonies; whether in their separate State Governments or in the Confederacy we need not here discuss. If the Union existed before the States, as Lincoln said, the power resided in the Union from the first. That power is expressed in the Constitution of the United States and has never been successfully denied by any State Government. If, on the other hand, it existed in the several Colonies, our position is equally strong.

As a matter of history, the call for the Annapolis Convention and later for the Philadelphia Convention where the Constitution was adopted grew out of a controversy between Virginia and Maryland over commerce in the Potomac River and Chesapeake Bay. Suppose we grant that Virginia then had absolute power to regulate commerce across her boundary, even to prohibit imports. Manifestly she no longer has that power. Where is it? Was sovereign power over commerce lost when the States adopted the Constitution? If not, then it

exists in the Federal Government, as it was not among the powers reserved to the States. No matter which horn of the dilemma the objector chooses, our case is equally clear. The logic in brief is this:

1. Power over our commercial relations formerly existed in the English Crown.

2. The Crown lost it when the American Colonies revolted.

3. It continued in (a) the Union, which clearly expressed it in the Constitution and has never surrendered it, or (b) in the "sovereign States," which passed it to the Union in forming the Federal Government.

The power of the Government over interstate commerce is the same as over foreign commerce.

See Inman Steamship Co. v. Tinker (94 U. S., 238), Justice Swayne: "The prerogative, the responsibility, and the duty of providing for the security of the citizens and the people of the United States in relation to foreign corporate bodies, or foreign individuals with whom they may have relations of foreign commerce, belong to the Government of the United States and not to the governments of the several States; and confidence in that regard may be reposed in the National Legislature without any anxiety or apprehension arising from the fact that the subject matter is not within the province or jurisdiction of the State legislatures."

Crutcher v. Kentucky (141 U. S., 47), Justice Bradley :

"And the same thing is exactly true with regard to interstate commerce as it is with regard to foreign commerce. No difference is perceivable between the two."

"It has been frequently laid down by this court that the power of Congress over interstate commerce is as absolute as it is over foreign commerce." Brown v. Houston (114 U. S., 622), Justice Bradley :

"The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."

License cases (5 How., 599), Justice Catron:

"And here is the limit between the sovereign power of the State and the Federal law; that is to say, that which does not belong to commerce is within the jurisdiction of the police power of the State, and that which does belong to commerce is within the jurisdiction of the United States."

Hoke v. United States (227 U. S., 308), Justice McKenna :

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Congress is given power to regulate commerce with foreign nations and among the several States. The power is direct; there is no word of limitation in it, and its broad and universal scope has been so often declared as to make repetition unnecessary."

Hipolite Egg Co. v. United States (220 U. S., 45), Justice McKenna:

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The statute (pure food and drugs act) rests, of course, upon the power of Congress to regulate interstate commerce, and, defining that power, we have said that no trade can be carried on between the States to which it does not extend, and have further said that it is complete in itself, subject to no limitations except those found in the Constitution."

Brown v. State of Maryland (12 Wheat., p. 419, U. S.), Chief Justice Marshall: "All power may be abused, and if the fear of its abuse is to constitute an argument against its existence it might be urged against the existence of that which is universally acknowledged and which is indispensable to the general safety."

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OBJECTION 9. THE POWER OF CONGRESS TO REGULATE OR PROHIBIT INTERSTATE COMMERCE DEPENDS ON THE KIND OF INJURY SUCH COMMERCE MIGHT DO."

This objection admits that Congress may regulate or prohibit interstate commerce in goods that do injury:

(1) To the morals of the consumer:

As in the act of February 21, 1905, which prohibits the transportation in interstate commerce of obscene books, although the Constitution expressly guarantees "freedom of speech."

(2) To his safety:

The transportation of goods may involve danger to life, as in the act of March 3, 1905, which prohibits the transportation of loose hay on passenger steamships. The act of March 31, 1900, prohibits the transportation of explosive materials in any vessel or vehicle in interstate commerce.

(3) Or to the producer:

The producer is protected by the act of July 1, 1902, which prohibits the transportation or sale by another State of dairy or food products which have been falsely labeled or branded.

But it is contended that the products of child labor are not injurious to the consumer and offer no danger in the process of interstate transportation; that their only possible injury lies in the effect upon the children who produce them. Assuming for the moment that this is true, apparently the types of injury above cited do not exhaust the power of Congress to intervene.

The act of February 3, 1903, prohibits the transportation in interstate commerce of cattle without a certificate from the inspector of the Department of Agriculture. It can not be shown that all cattle shipped in interstate commerce without this certificate are diseased or worthless. Many may be entirely sound, but they are effectually barred.

It has never been contended that oleomargarine is injurious to the consumer, yet its transportation in interstate commerce or its sale in another State than the producing State is prohibited unless it is plainly marked. This provision is clearly for the purpose of protecting the producers of dairy butter.

If the facts of child labor in any part of the country are such as are obnoxious to the moral sense of the country; if children are so employed as to injure their future value as citizens of the Nation; if the State in which these abuses exist refuses or delays to abate them, then it is clearly in the province of "the people," represented in Congress, to act. The decision in the White Slave Case, under the Mann Act, is definite on this point.

Hoke v. United States (227 U. S., 308), Justice McKenna:

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Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, as we have said; but it must be kept in mind that we are one people, and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions, and surely, if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls."

We do not claim that the consumer is injured materially or physically by the purchase or use of goods produced by child labor. But we do claim that the consumer is injured morally; that he is powerless to protect himself by means of humane laws enacted in his own State so long as interstate commerce offers facilities for shipping into his State goods made under conditions obnoxious to his moral sense. And how can he be protected in this except by the only power competent to regulate interstate commerce?

Says Justice McKenna in Hoke v. United States (227 U. S., 308) :

"It must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral."

III. ADMINISTRATION.

1. Administration board.-The responsibility for administrating this law is placed upon a board composed of three Cabinet officers-the Secretary of Commerce, the Secretary of Labor, and the Attorney General. This board shall draft all rules and regulations necessary to guide Government officials in enforcing the law, and shall from time to time amend the rules as experience or changing conditions may require. We are confident that this is a far better plan for administration that to attempt on a priori grounds to construct a detailed plan of enforcement.

These representatives of the General Government are at the source of information; they represent a sufficiently wide range of public interest to insure a fair interpretation and administration of the law which no one department, for example the Department of Labor, could guarantee. The Secretary of Labor will presumably represent the interests of labor on the board, while the Secretary of Commerce will see that rules are not adopted that would be unnecessarily harsh or irritating to commercial interests. The Attorney General as a third member of the board completes the group and assures the technical wisdom of the Department of Justice in developing an effective system of administration.

2. Enforcement.-In the practical enforcement of the law the Secretary of Labor is given authority to investigate all industrial plants in which violations of the law may occur. He and his deputies are given the same power to investigate these industrial establishments as is now exercised by departments of labor in the various States. At the same time State factory inspectors, school-attendance officers, health officers, and private citizens are equally competent to report violations. Cases in prosecutions are to be brought before the United States district attorneys, and they are required under the law to institute immediate proceedings.

3. Duty of citizens.-The bill differs radically from others in respect to the duties of citizens in complying with it. One pending bill provides that every six mouths every producer using the facilities of interstate commerce shall file an affidavit that he does not employ children contrary to law and has not done so during the preceding six months. This is an effective way to bring the desired evidence before the officials. On the other hand, it would cause unnecessary annoyance to a large number of people. Among 100,000 employers, perhaps 90,000 have never employed child labor and do not intend to do so. In our judgment it is unfair to require of these 90,000 the form of affidavit every six months in order to help Government officials detect the violators who may be found among the other 10,000.

4. Seeks to punish real offenders.—We have been asked why the interstate carrier is not made a party as in other bills. The answer is that it is the producer and not the carrier who is guilty of the offense the law seeks to punish. Why, then, beat around the bush instead of placing the responsibility where it belongs, viz, on the employer of the child? And why compel every interstate carrier to act as a Government agent to bring offenders to justice? This is a public function and we question the wisdom of laying upon private enterprise the disagreeable task of acting as a Federal detective service. We believe that rules can be laid down by this board which will make it practically impossible for an exploiter of the labor of young children to pollute the stream of interstate commerce with his goods.

Undoubtedly, as shown, there would be danger to an innocent wholesaler or merchant handling the goods of an employer of child labor. This, of course, should be avoided and we have relied on the administrative board to fix rules of evidence which will insure the punishment of the real offender. If the "dealer" were omitted from the bill he could be used at any time by the producer as a cover. The law must, therefore, include all parties who handle the goods from the producer to the acceptance of shipment.

HOW, THEN, INCLUDE THE MERCHANT AND WHOLESALER AND STILL NOT SUBJECT THEM TO PUNISHMENT FOR AN ACT INNOCENTLY PERFORMED?

It has been objected that the administrative board can not determine rules of evidence, but that this is law and must be embodied in the bill itself. The purpose of the framers of the bill has been to divest it of every unnecessary detail, so as to fix public attention on the standard proposed. If the objection here made is valid, however, it can readily be met by adding to section 5 the following, adopted from the pure food and drugs act:

"Provided, That no person shall be subject to conviction under the provision of this section who shall establish a guarantee issued by the person by whom such goods are sold, manufactured, shipped, or delivered for shipment, and residing in the United States, to the effect that in the production, sale, or shipping of said articles no children had been employed or permitted to work contrary to the conditions hereinabove set forth. Said guarantee to afford the protection above provided shall contain the name and address of the person giving the same, and in such event such person shall be amenable to any penalty which otherwise might have attached under the provision of this act to the person seeking the protection of said guarantee."

It has also been objected that, to prove violation, goods must be traced from the point where they are discovered in interstate commerce back to the original source. That then the burden of proof is in the Government to show that children were employed in violation of the law at the time the goods were made, which might have been many weeks prior to the shipment. The answer is that the Government is entirely competent to so word the act as to throw the burden of proof on the other party. In this instance a simple solution, if Congress finds the objection valid, will be by adding, in section 5, the following: