Argument for Appellants, Champion et al.

9-10; Louisiana Civil Code, act 1776; Civil Code of Spain of 1889, title XII, U. S. Govt. Transl. 1899, pp. 230–232; May on Insurance (4th ed.), vol. 1, p. 5; Clark on Contracts, pp. 405406; Lawson on Contracts, secs. 284-287; Hollingsworth on Contracts, pp. 229-232; Anson on Contracts (2d Am. ed.), pp. 232-233; Angell on Fire and Life Insurance, pp. 12, 14; Joyce on Insurance, vol. 1, secs. 2, 7; Emerigon, Meredith's Transl. p. 13; Richards on Insurance, sec. 20.

In the case of Paul v. Virginia, 8 Wall. 168, 183, it was distinctly held that the issuing of insurance policies in New York and sending them to Virginia, to be there delivered to the insured on payment of premium, was not interstate commerce. See also Hooper v. California, 155 U. S. 648, 653, 655; New York Life Insurance Co. w. Cravens, 178 U. S. 389, 401.

These insurance cases cannot be distinguished on the ground that the transaction was not interstate commerce, because the agent of the foreign insurance company negotiated the contract of insurance in the State where the contract was to be finally completed and the policy delivered. See, however, Robbins v. Shelby County Taxing District, 120 U. S. 489, 497; Hopkins v. United States, 171 U. S. 578, 601; Collins v. New IIampshire, 171 U. S. 30, 32; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 46; Williams v. Fears, 179 U. S. 270, 276.

In so far as the law now under consideration is aimed against the lottery ticket or policy slip, either at the place where the paper started or delivery was made, or at the place where the paper will find itself, or where the contract may take effect at the end of its journey, it is an attempt to interfere with the local municipal laws and police regulations of either place. Lotteries, wherever found, are not interstate commerce, but at most interstate wagering, such as insurance and other forms of speculation or gambling. It is true that lotteries, which were once popular and extensively engaged in, have gradually fallen into disrepute and have become the subject of prohibition by most of the States. But the gradual prohibition of lotteries under state police powers did not make them interstate commerce, or diminish the power of the respective States to permit, regulate or prohibit them.

Argument for Appellants, Champion et al.

If the present question had arisen in the days of Marshall, when the public opinion of the country was not as hostile to lotteries as it is to-day, and if the Federal government had sought to prevent the people of any State from dealing as they saw fit in the lottery issues of other States, it would have been held that Congress had gone outside of the powers which had been conferred on it by the terms of the Constitution, and that the legislation was unconstitutional and void because it was not a regulation of commerce, but an unwarranted interference with the police power reserved to the States.

II. The argument on behalf of the United States as to the scope of the word intercourse, found in some of the opinions of the court, tends to prove altogether too much. It would make the power to regulate commerce embrace not merely "the entire sphere of mercantile activity in any way connected with trade between the States," but all the relations of life in so far as they involved intercourse between residents of different States.

The appellants do not dispute the proposition that the business of carriage for hire from one State to another or of facilitating such transportation or the transit of persons is a branch of interstate commerce within the authority of Congress to regulate, but it does not follow that Congress may, therefore, determine what may or may not be carried, irrespective of the nature of the thing carried. The broad powers claimed in the government's brief would enable Congress to regulate or prohibit every form of domestic intercourse and contractual relation between residents of different States, and to prohibit the transfer of promissory notes, of deeds, of bonds, of contracts for personal service, etc. It is submitted that no such power was intended to be delegated to Congress by the grant of authority to regulate commerce among the several States.

Further, if the Constitution delegated to Congress the express power to prohibit interstate commerce, that grant would not confer the power to prohibit directly or indirectly what was not interstate commerce. If Congress may prohibit the transportation of diseased animals or infected goods or obscene literature, it is because they are essentially commercial in their nature, and hence they are dealing with subjects of commerce.

Argument for Appellants, Champion et al.

Such prohibition may be necessary and proper in order to protect the instrumentalities of interstate commerce and to safeguard such commerce. But this would not sanction the probibition of things not constituting commerce, any more than Congress could forbid a citizen to go from one State to another on any business he saw fit and whatever his purpose might be.

In reply to the government's brief, undoubtedly the State could not tax the transportation of the box of lottery matter from one State to another, because that would be taxing the business of interstate commerce and not because it would be taxing lottery tickets as such.

Whilst the State is concededly impotent to tax the business of interstate carriage for hire of lottery tickets, that fact does not in any degree militate against its power to tax or prohibit dealings in lottery tickets under the exercise of its reserved powers. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, distinguished, and United States v. E. C. Knight Co., cited.

III. As to the suggestion that commerce means intercourse in the broadest sense of that term, and includes all forms of transactions or intercourse among the people of the several States, what has been ruled is, not that commerce is the equivalent or synonym of intercourse, but that commerce is synonymous with "commercial intercourse," which no one could dispute. Gibbons v. Ogden, 9 Wheat. 1, 189.

It is always necessary to bear distinctly in mind that, when adopting the Federal Constitution, the people of the United States deliberately "reserved to the States respectively or to the people" many objects which might have been appropriate for Federal legislative action. The student of the history of that critical period cannot fail to be impressed with the conviction that a grant to the Federal government of police powers, such as the regulation and suppression of lotteries, could not have been secured, and that the Constitution itself would not have been ratified if any attempt had been made to give greater scope to Federal legislation. Hooper v. California, 155 U. S. 648; United States v. Fox, 95 U. S. 670; Trade-Mark Cases, 100 U. S. 82; Nathan v. Louisiana, 8 How. 73; United States

Argument for Appellants, Champion et al.

v. Dewitt, 9 Wall. 41; United States v. Boyer, 85 Fed. Rep. 425; Williams v. Fears, 179 U. S. 270, 277; Ex parte Milligan, 4 Wall. 2, 120; In re Debs, Petitioner, 158 U. S. 564, 591.

However desirable-or however necessary-Federal power in any case may now seem to be, if it was not expressly conferred upon Congress, it cannot be read into the Constitution by legislative declaration or by judicial decree. The Constitution "neither changes with time, nor does it in theory bend to the force of circumstances.". It is to-day what it was when Hamilton and Madison and Jay and Marshall wrote and argued in its support. The surrounding circumstances have changed, usages of life and trade and modes of thinking have changed, the manners and morals and ideas of the functions and ends of government, conceptions of civic duty and patriotism, all these have changed, but the Constitution remains as it was then. New conditions of society are evolving; systems of municipal law are being altered incessantly to meet novel and complicated conditions; but the fundamental principles of the Constitution are the same as they were when it was adopted. We are not at liberty to give the provisions of the Constitution new meanings because of considerations of expediency. If we could, then "there is no power which may not, by this mode of construction, be conferred on the general government and denied to the States." Chief Justice Taney in the Passenger Cases, 7 How. 283, 478. See also Ex parte William Wells, 18 How. 307, 311.

If the argument of expediency could be adopted, in its last analysis it would vest in Congress power to legislate in all criminal matters whenever the state laws were not duly enforced as to any acts or transactions arising from or affecting directly or indirectly intercourse among the inhabitants of the several States.

The reasoning of this court in the Rahrer Case, 140 U. S. 545, shows that it was by no means the idea in that opinion that Congress might prohibit all interstate traffic in liquors.

It must be evident that any attempt by Congress to prohibit interstate traffic in liquor, notwithstanding the wishes of the various States and their local preferences, would be a departure which would cause much astonishment and opposition and be

Argument for Appellants, Champion et al.

of doubtful constitutionality because of interference with the rightful jurisdiction of the States, whilst the legislation discussed in the Rahrer case involved the exercise by Congress of a power which recognizes to the fullest extent the jurisdiction of any State to permit or prohibit, according to its local policy. As to attempt to prevent the circulation of anti-slavery publications from one State to another by excluding them from the United States mails, see 49 Niles' Register, 228; North Carolina, 1830, Laws, vol. 14, p. 10, and Maryland, 1831; 49 Niles' Register, 228. Cf. Rev. Sts. La. 1852; 48 Niles' Register, 447448; 49 Niles' Register, 7-8; Cong. Globe, 24th Cong. 1st Sess. 10, 164, 165, 347; Cong. Globe, 24th Cong. 1st Sess. App. 348, 453, 454, 539.

The significance of this episode lies in the fact that Congress was grappling with the proposition to regulate the transmission from State to State of documents which lacked entirely the quality of merchandise. It was admitted throughout the debate that, if Congress could not regulate this matter indirectly through the mails, it could not regulate it at all; and no suggestion was ever made that such a bill could be passed under the commerce clause.

IV. In reply to the question in the government's brief why may not the prohibitive power exercised in respect of foreign nations be applied to interstate commerce, and to the question why the same prohibitive power exercised in regulating trade with the Indian tribes may not be applied to interstate commerce, it should be sufficient to answer that there is nowhere in the Constitution or any of the amendments thereto a reservation of police powers or of any power either to any foreign nation or to any Indian tribe, and, therefore, the power of Congress over commerce with both is exclusive and absolute. Citing as to extent of powers of Congress: United States v. 43- Gallons of Whiskey, 93 U. S. 188, 194; 2 Tucker on Constitution, 528-533; Groves v. Slaughter, 15 Peters, 449, 503; Passenger Cases, 7 How. 283, 406; Crandall v. Nevada, 6 Wall. 35, 44, 48; Slaughter-House Cases, 16 Wall. 36, 75, 119; Paul v. Virginia, Hooper v. California and New York Life Ins. Co. v. Cravens, cited supra; Head Money Cases, 112 U. S. 580, 591.