ships that carry them are subject to capture and forfeiture. In sanctioning such forfeiture, international law may be regarded as penalizing the trade. National law, on the other hand, treats this trade, in the absence of special restrictions, as legitimate. Our courts, state and federal, take cognizance of contracts for the sale and transportation of military supplies to belligerent countries and award damages if these contracts are not performed.' If a general prohibition of the sale of munitions of war to belligerents would promote peace, such sales should of course. be prohibited. Until war is abolished, however, such a general prohibition would place unprepared nations, particularly those whose manufacturing industries are little developed, at the mercy of well-prepared nations, and particularly of those nations that have developed great manufacturing industries. For their own preservation, all non-industrial states would be forced to buy in time of peace and carry in stock military supplies of every sort sufficient to last through the longest war in which they might conceivably be involved. Much of this reserve would deteriorate; much would become relatively useless because of the progress of the military arts; and if a great industrial state should secretly develop and hold in readiness new and more effective agencies of destruction, as was the case before the outbreak of the present war, the non-industrial adversary, if shut out from neutral markets, would be unable to provide itself with the necessary equipment for defense. In view of these facts, it seems clear that the prohibition of the munitions trade in time of war would impair the rights of peaceful peoples. It might even imperil their independence. In reply to the arguments of the Central Empires, our State Department did not fail to call attention to the fact that it had never been the policy of the United States to make extensive preparations for eventual war, and that, in any emergency, we were in the habit of relying upon purchase of military supplies from neutral states. It was, in fact, hardly intelligent diplomacy 1 Kent, J., in Seton and Co. v. Low, I Johnson's N. Y. Cases, 1, 5, 6 (1799). Pond v. Smith, 4 Conn. 297, 303 (1822). Northern Pacific Railway Co. v. American Trading Co., 195 U. S. 439, 465 (1904). on the part of the Central Empires to ask a nation so habitually unprepared as ours to set a precedent against trade in such supplies during war. In the controversy aroused by its "war zone" proclamation, the German government, as we have seen, endeavored to connect the question of its right to conduct an unrestricted submarine warfare with the question of the trade in munitions of war. As we have seen, it argued that it was obliged to sink unarmed merchant vessels without warning in order to check this trade. In invoking the right of reprisal, it sought to connect the question of submarine warfare with that of the British measures in restraint of neutral trade. It endeavored, for a time, to make action on the part of our government against Great Britain a condition precedent to any modification of its submarine warfare. At present, although it has ordered its submarine commanders to observe the rules of cruiser warfare, it has expressly reserved the right of reverting to its earlier policy of unrestricted submarine warfare, in case the United States does not succeed in inducing Great Britain to abandon its illegal restraint of neutral trade. Our State Department has consistently refused to admit that the adjustment of any controversy between the United States and Germany can properly be made to depend on the adjustment of our controversies with any other power. It might have gone further; it might have said that there was no connection between the British restraints of neutral trade and the German policy of unrestricted submarine warfare, except that which the German government sought to establish by invoking the right of reprisal; and that the United States government did not recognize the taking of non-combatant lives as a proper or legitimate reprisal for the restriction of neutral trade. The German government finds our position unneutral because we, as the German Ambassador at Washington asserts, have "acquiesced" in Great Britain's violations of international law. If protest without action or threat of action is acquiescence, it might equally well have been said, at the time of Count Bern 1 storff's utterance and for many months afterward, that we had acquiesced in Germany's violations of international law. To say that the United States is unneutral because it permits the export of military supplies to Germany's enemies, or because it has not compelled Great Britain to modify its Orders in Council, seems to most Americans absurd. To most of us it seems that our government has observed strict neutrality. In so far as the Central Empires and those who support their cause really feel that the attitude of the American government has not been neutral, their feeling is probably due to the fact that its observance of a strict neutrality has been of greater advantage to the Entente Allies than to the Central Empires. The fact that its conduct has given offence to both belligerent groups, and to those Americans whose sympathy with either group obscures their judgment, is the best proof that it has been really neutral. Conclusions The chief criticism that can be directed against our government is that it failed to discharge its full duty in protecting the rights of its citizens against those aggressions to which neutral rights are exposed in every war. Its greatest fault was in its lack of prevision; and particularly in its failure to arm itself at the outbreak of the war with the means of exercising naval force and economic pressure in support of its just claims. Lacking these means, it was condemned to inaction where action seemed requisite. It could not even threaten action, because its inability to take decisive action was notorious. Minor faults, perhaps, but serious faults nevertheless, are to be found in the failure of our government to discover and to formulate the most tenable grounds for its protests and demands. For the development of international law this failure. was most unfortunate; for international law, like every law that develops through precedents, depends for its certainty on the proper interpretation of precedents; and this is seriously compromised if the cases that may become precedents are not intelligently stated and argued. COLUMBIA UNIVERSITY. MUNROE SMITH. THE FEDERAL CHILD-LABOR LAW THE QUESTION OF ITS CONSTITUTIONALITY HE Child-Labor Law enacted by Congress at the last session is a step farther in regulation and a step farther in TH the assertion of congressional power than has ever before been undertaken. Doubts of its constitutionality have been expressed. Most lawyers agree that this legislation stretches to the limit of its elasticity the commerce clause of the Constitution. The statute will be tested in the courts, and while no one may with certainty foretell the ultimate conclusion, or what has more irreverently been called the last guess, a review of some of the Supreme Court's interpretations may be suggestive. As introductory to a consideration of the statute, it may be noted that the courts in construing it will look only to the statute itself. It is, of course, common knowledge that the statute was designed to restrain and abolish the employment of child labor in mines and factories. But the motives of the individual members of Congress actuating them in enacting a statute are not subject to inquiry.' Public policy and expediency have formulated a legal fiction that the motives of legislators are constitutional and pure. And, however violent a presumption this seems, it is no less conclusive. The statute must stand or fall by itself. So we are brought squarely to the question: Is the statute a regulation of interstate commerce? The commerce clause of the Constitution is the soul of brevity. It reads: "Congress shall have the power. . . to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." This is the warrant for all the power Congress may exercise over interstate commerce. It is the source of all congressional sovereignty over that subject. United States v. Des Moines etc. Co., 142 U. S. 510, 544; Amy v. Watertown, 130 U. S. 301, 319; Weber v. Freed, 239 U. S. 325, 333. Article 1, section I. And every act of sovereignty must be authorized by this charter. Any act not authorized by this delegation of power is unconstitutional. It is at once evident, therefore, that Congress has no power of regulation (for the purpose of this inquiry) outside of interstate commerce, and within interstate commerce its power is only the power to regulate. So there are two things it is essential to define-interstate commerce, and the power to regulate. I. Interstate commerce. Interstate commerce has a current meaning quite clear, but in its legal aspect its boundaries are sometimes shadowy. Its extent is sometimes described as a domain, or a sphere, or a zone. But it should be remembered, in using these figures of speech, that its boundaries are not like territorial boundaries. Interstate commerce exists relatively. We may imagine it as being comprised in a kind of magic circle. Within the circle is the power of Congress. Without the circle, the power vanishes, like that of the magician of the fairy tale. Traffic between the states, or intercourse, is fundamentally commerce. But the instrumentalities of that traffic also come within the scope of interstate commerce, and the instrumentalities of instrumentalities. For example, an interstate carrier is an instrumentality. A workman carrying a bolt to repair a bridge on the line of an interstate carrier is also an instrumentality. The chain of dependencies is endless. It is like the House that Jack Built. Cause and effect are followed and embraced with a relentless logic. If the connection exists, the magic circle envelops it, and the jurisdiction attaches. Inasmuch as interstate commerce exists relatively, the same instrumentalities may engender rights and duties within and without the circle of interstate commerce. This results in a dual control over the same agencies in their different spheres. A freight car loaded with goods shipped between intrastate points must be equipped with the safety appliances Congress has required, if the train is an interstate train.3 The rate charged 1 Gibbons v. Ogden, 9 Wheaton 1, 189. 2 Pederson v. Delaware L. and W. R. Co., 229 U. S. 146. 3 Southern Railway Co. v. United States, 222 U. S. 20. |