tural sections. We believe that agriculture can not be prosperous unless the farmer is prosperous; again, we believe that the farmer can not be prosperous unless industry is getting decent wages and is able to buy the farmer's products. The Committee on Agriculture is working on a farm bill and we are working on an industrial bill. We hope that both agriculture and industry may be properly taken care of.

Mr. EMERY. You are going to enforce this bill, if enacted into law. The chief contribution that the bill would make to employment would be an addition of many inspectors to enforce it.

Mr. LAMBERTON. That is what is always said in such cases.

Mr. EMERY. We have had the experience under the child-labor legislation. We had to fill out 14 forms under that law in order to move the goods out of a plant. We have 300,000 plants and manufacturing establishments in the country. We have innumerable mines, quarries, workshops, and canneries. We have innumerable merchandising establishments throughout the United States that will ship goods in interstate and foreign commerce. A vast army of inspectors would be essential to the execution of this law. I do not put this up as an objection to the bill but as an evidence of difficulty in the form of the bill.

The CHAIRMAN. Does the State of Massachusetts have any trouble enforcing its law in relation to the hours of labor?

Mr. EMERY. That is a local matter only.

The CHAIRMAN. This would apply to 48 States and would probably at the most require 48 inspectors.

Mr. EMERY. One inspector for each State?

The CHAIRMAN. One inspector for each State could enforce the hours of labor provision of this bill.

Mr. EMERY. I would admire his efficiency.

The CHAIRMAN. They do it in Massachusetts with only two inspectors. It is common knowledge whether a concern is working more than 30 hours a week or any other number of hours. The employees will tell about that, and it would not be necessary to have inspectors.

Mr. EMERY. You will see in the form of this bill the practical difficulties presented under your widespread distribution with a Nation such as ours, in which 90 per cent of its products are consumed outside the States of production.

This bill covers also not merely domestic production but covers the entire area of foreign trade, so that you have in addition to that trucking, new forms of transportation moving rapidly between the States, you have all of your automobiles and other transports, which are entirely different from those of a few years ago. You have ships in every port of the Union passing out and upon which goods made in a certain number of work hours must not move.

I want to hasten on. I am talking now merely of the structure of the bill. I say that I do not know any social legislation in the States that is not made specific in provisions for the emergency situations that may be confronted anywhere. In the child labor act of 1916 the provisions were applicable to goods produced within 30 days.

As to the further form of the bill, it is not a regulation of commerce but is a prohibition of commerce in wholesome, unobjectionable commodities which, while not including field work in agriculture, applies to the processing of its products. It is not a regulation of commerce but a regulation of production. It is not aimed at interstate trade, but at manufacture. The products prohibited are not excluded as commodities because of their threat to commerce on account of their nature, which makes them contraband of commerce, but seeks to outlaw trade in the commodity unless the conditions of production within each of the States, of which they, under all prior decisions have exclusive control, conforms to the congressional notion of what they ought to be. If Congress may thus prohibit all commerce in commodities unless produced under the conditions satisfactory to it, the whole police power of the States is transferred to Washington. The centralization of authority is as complete and despotic as though the Constitution were amended, giving Congress the exclusive and plenary authority to determine every circumstance of production, fix hours, wages, and working conditions, arbitrarily limit the contractual power and earning capacity of every citizen in every calling in field, factory, farm, and mine.

The CHAIRMAN. You speak of prohibition. Mr. Justice Holmes says the word "regulation” implied prohibition.

Mr. EMERY. But the majority court did not agree with him. And Mr. Justice Holmes accepted the conclusions of the court in a subsequent case involving the same point.

I am talking of the form of the bill. It is prohibitive and it rests upon this fundamental proposition, and must do so: That the Congress possesses the power to exclude from interstate commerce any article that it pleases or all articles of whatever kind and nature, unless they are produced within the respective States under conditions that conform to the policy the Congress lays down. That is the fundamental proposition underlying this bill. It does not rest upon any inherent quality of the article. That raises this question: does the commerce power embrace the power to determine the conditions of production in the respective States, the tenth amendment to the Constitution to the contrary. That is the provisions reserving the various powers of the States. Let me say first of all that there seems to be some question raised as to whether the right to engage in commerce between the States is a privilege granted by the Congress or an inherent right of the citizen himself. Such gentlemen as you, students of government, realize that the first great force that brought the colonies together after the confederation became a failure was due to the obstructions in intercourse between the fall of Yorktown and the adoption of the Constitution, and it was the desire to secure freedom of intercourse between the colonies that was impelling, that after Washington settled the famous dispute between Maryland and Virginia it brought the various colonies together at Annapolis to discuss these frictions and difficulties that even threatened civil war and caused the States to deny all forms of intercourse between the States and led to the constitutional convention in which this was the major subject considered. During its discussion they came to the realization of the necessity of reorganizing the whole framework of the intercolonial relationship.

I do not want to bore you with a recital of many decisions, because I know they have been discussed before the committee, but I should like to lay down certain fundamental principles that seem to be settled not only in the cases that have been brought to your attention but in other cases. In Gibbons v. Ogden (9 Wheat., 20), in which Chief Justice Marshall dissented, we have the first great case under the commerce clause of the Constitution. That was a case in which the State of New York proposed to grant a monopoly of navigation to a steamship company.

The CHAIRMAN. Is that the Robert Fulton case?

Mr. EMERY. Yes. In that case the court said:

In pursuing this inquiry at the bar, it has been said that the Constitution does not confer the right of intercourse between State and State. That right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing right and gave to Congress the power to regulate it.

So that the right to engage in interstate commerce antedates the Congress, is recognized by it, and there was given to the Congress the power of regulation over it, to prescribe the rules of intercourse between the States.

In the employers' liability cases (207 U. S. 463), it is said that this bill

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.

In that connection let me call your attention in passing to what was well said by Mr. Justice Holmes in the Pennsylvania Coal Co. v. Mahon (260 U. S. 416):

We are in danger of forgetting that a strong desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.

We beg to point out to the committee that it is fundamental that production and manufacture are distinguishable and always have been from commerce, that the power of Congress extends to prescribing the rule of intercourse for the former and not to the latter, except when plainly intended or effective to burden, injure or control com

merce.

The CHAIRMAN. I appreciate your argument along that line. I see exactly what you are hitting at. You speak of the confederation, when it was a failure, and then we got the Constitution. You referred to the friction and difficulty between the States. If the States had not given the power to regulate interstate commerce to the Congress, would we not to-day have the State of Massachusetts passing a law, for instance, forbidding the sale of goods and commodities, regulating the sale of goods in Massachusetts, where the hours of employment are not the same as other States?

Mr. EMERY. Yes.

The CHAIRMAN. Does not that bring us down to the point th when the colonies got together and fixed up this Constitution, th they intended to leave that whole matter to the Congress to decide what should go from State to State?

Mr. EMERY. No; nothing is clearer than they did not; and that is what the court has been saying for a hundred years. In 1888, which was 30 years before the child-labor case, the case of Kidd v. Pearson (128 U. S. 1), came before the Supreme Court. That is a case in which the Supreme Court had before it a statute of the State of Iowa that prohibited the manufacture or sale of intoxicating liquor. The appellant in that case had manufactured beer in the State of Iowa exclusively for export, and he asserted, therefore, that he was lawfully engaged in the manufacture of an article within the State, because it was intended for commerce, export, and that the only inhibition of the law was consumption within the borders of the State. He asked that he be protected against the invasion by the State of the commerce power through the attempt to prevent him from exporting or shipping in interstate commerce a commodity over which the Congress and not the State had exclusive control of transportation.

The court pointed out that the State alone had the power to control the conditions of manufacture, or, in this instance, to prohibit it, because of the peculiar nature of the article, as had been said in prior decision in 123 U. S., and that this was an act of manufacture or production, over which the State had exclusive control, as complete as the control which the Federal Government, through the Congress, exerted under the commerce clause. The court then proceeded to make the distinction between commerce and manufacture, and points out the consequences which would arise if it were held that the power of the Congress extended to a regulation of production and manufacture within the State. Quoting from that decision, at page 20, I find that

No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation, the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. The legal definition of the term, as given by this court in County of Mobile v. Kimball (102 U. S. 692, 702), is as follows: Commerce with foreign countries, and among States, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities."

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If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate not only manufactures but also agriculture, horticulture, stock raising, domestic fisheries, mining; in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest and the cotton planter of the South plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and

vital interests, interests which in their nature are and must be local in all the details of their successful management.

It is not necessary to enlarge on, but only to suggest the impracticability of such a scheme, when we regard the multitudinous affairs involved, and the almost indefinite variety of their minute details.

The CHAIRMAN. Agreeing with the right of the States to control mannufacturing and production, could it not have been the idea of the States when they handed over the power to control interstate commerce to the Congress that while they could run their own affairs, yet there should not be any harm inflicted upon another State when goods it manufactured, though in their own State and satisfactory to the people of that State, went into interstate commerce? Mr. EMERY. Wherever goods have been prohibited from entering interstate commerce it has been on account of the article working a fraud, it was inherently bad, tainted, diseased, infectious, or immoral in its very nature, and therefore it was not an article of commerce but an outlaw or contraband of the Congress.

The CHAIRMAN. What is inherently wrong with a lottery ticket? Is it inherently any more wrong than a theater ticket or any other piece of paper?

Mr. EMERY. What is wrong in a letter threatening a man with death? How does that letter differ from any other piece of paper? But the man who sends the threatening letter is liable to imprisonment. Why? Why? Simply because the letter contains something, its contents constitute a crime.

Mr. LOVETTE. Let us say that in Massachusetts they make liquor that they consider wholesome, lawful, healthful, and good generally for the people, but that in the State of New York they say that same liquor is poisonous, deleterious, harmful to the people, and they pass a law against it; the Massachusetts man puts his barrels on the train and ships them into the State of New York and says, "You can't prevent my doing this, because it is interstate commerce." What do you say about that?

Mr. EMERY. That is the Clark distilling case. (243 U. S.) The case is the Clark Distilling Co. v. Western Maryland Railroad Co. (244 U. S. 311.) Preceding that you had several States of the Union prohibiting the production of articles that were held by their very nature to be of such a character as distinguished from all other articles that the States could prohibit their manufacture. Let me carry your argument into the State. Do you find that any State in the Union can say that you could prohibit the manufacture of particular commodities because you are afraid if they were produced somebody might be put out of employment by the production of that machine? Do you think any State in the Union could prohibit the manufacture of any wholesome article, completely prohibit its production, or that any State in the Union could say what you are undertaking to say where, because no State has done so-"We prohibit the manufacture of any goods of any kind in this State on which men work more than 30 hours a week or six hours a day " "? Do you think that any State in the Union, under its police power, could do that?

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