Argument for the United States. persons arriving at our ports of entry is, without reference to traffic, the subject of Congressional regulation, because it is commerce. People v. Compagnie, 107 U. S. 59; Head Money Cases, 112 U. S. 580; Henderson v. Mayor, 92 U. S. 259; Nishimura Ekiu v. United States, 142 U. S. 651. If the transit of persons from a foreign country to our country is commerce without respect to the purpose of their entrance into this country, then the same must be true of the transit of persons from State to State, assuming that foreign commerce is the same as interstate commerce, with the exception of the locus in quo. That they are identical is clearly established by the decisions of this court. Brown v. Houston, 114 U. S. 630; Bowman v. Chicago, 125 U. S. 482; Crutcher v. Kentucky, 141 U. S. 47; Pittsburg Coal Co. v. Bates, 156 U. S. 587. 2. Transportation of property for hire from State to State is commerce. The method of transportation is wholly unimportant. Conveyance of property for hire by a rowboat is as much commerce as by the largest steamship, and a wheelbarrow may be as completely an instrument of commerce as an express train. Transportation may be by hand and still be commerce. The telegraph boys, who deliver messages by hand, are engaged in commerce. See Western Union Telegraph Co. v. Pendleton, supra. In the cases at bar the carriage of things from State to State for hire is involved. The subject of the transportation is unimportant. Transportation is per se commerce. A fair test of the soundness of the appellants' contention is to ask whether the State of California could lawfully have passed a law taxing the transportation of the box of lottery matter from Dallas, Texas, to Fresno, California, or could the State of Ohio have taxed the carriage of the policy ticket from Newport, Kentucky, to Cincinnati, Ohio. Their impotence to do so is predicated on the theory that such carriage is com merce. 3. But, assuming that the character of the thing conveyed or transported is an important question, I submit that lottery tickets title to which passes by delivery and which from time immemorial have been subject of barter and sale-are articles of commerce. Congress has held them to be articles of com Argument for the United States. merce, and this court has ruled that the judgment of the legis lative branch of the government is, in this respect, controlling upon the judiciary. In this respect there is a clear distinction between the effect of state statutes and acts of Congress. Unquestionably no state statute, by any declaration as to what is an article of commerce, could trench upon the supreme authority of the Federal government with regard to commerce, and therefore state statutes which have sought to prohibit altogether certain forms of traffic have been held not to divest the articles in question of their commercial character, or to forbid their importation into a State in the original package. But when Congress, by legislation, recognizes a traffic in a given form of property, the judiciary will not question the fact of such traffic or the commercial character of the article thus bought or sold, but will simply consider whether Congress has exceeded its authority with reference to the subject matter of the legislation. Leisy v. Hardin, 135 U. S. 100; In re Rahrer, 140 U. S. 545. Without regard to this legislative declaration, however, it seems clear that lottery tickets are articles of commerce in the sense that they are things which have been for many generations the subjects of barter and sale. It is true that under the stress of repressive legislation the traffic in them in this country has materially lessened, but the necessity of legislation under consideration clearly manifests that the traffic has by no means ceased, and is already of sufficient magnitude to justify the National Legislature in closing the channels of foreign and interstate commerce to this merchandise. The fact that the United States and the various States have seen fit to make that illegal which was before legal cannot in any way affect the character of lottery tickets as articles which have been for centuries the subject of purchase and sale. Whether an article is or is not an article of commerce is dependent, not upon the question of its noxiousness or usefulness, nor upon the question whether the States have prohibited it within their borders in the exercise of their police power, but upon the fact as to whether such articles have been, in the ordinary and usual channels of trade, the subjects of purchase and sale. It is not a question of opinion as to their utility or mo Argument for the United States. rality. It is a question of fact. Any article that men buy or sell is an article of commerce, and as such within the power of Congress when its exchange is interstate in its character. Schollenberger v. Pennsylvania, 171 U. S. 1, 7, 8. The commercial power of the Union can extend to written instruments, where they effect or are instruments of the purchase and sale of property interests. Almy v. California, 24 Howard, 169; Woodruff v. Parham, 8 Wall. 123; Fairbanks v. United States, 181 U. S. 283. The insurance cases, carefully read, are not authority for the proposition that a written instrument, like a bond or lottery ticket, which passes title to property upon delivery, may not be a commercial commodity. It will be noticed that this court has never had the question squarely presented whether Congress may enact legislation regulating the interstate insurance business. In reading the court's opinion upon these insurance cases the question actually presented to the court must be kept in mind. Woodruff v. Parham, 8 Wall. 123, 138. The precise point decided is that the insurance business is not so commercial in character that a State is obliged to admit such foreign insurance corporations. The foundation of all these decisions was that such corporations, being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created, and that, therefore, their right to do business in another State depends upon the grace of such State, which can impose terms or restrain altogether. All these cases were predicated upon the fact that the method of transacting the business made the transactions intra-state and not interstate. The contract of insurance was completed within the borders of the State in which the insured had his domicil, the insuring company acting through a local representative, of whom Mr. Justice White said, in Hooper v. California, 155 U. S. 648, that "in the discharge of his business he is the representative of both parties to a certain extent." See also Paul v. Virginia, 8 Wall. 168. 4. That the power to prohibit is absolute, and the legislature is the final judge of the wisdom of its exercise, seems to be clearly established upon both principle and authority. Argument for the United States. The most familiar exercise of the power to regulate commerce in the minds of the men who framed the Federal Constitution was, doubtless, the total or partial prohibition of traffic in par ticular articles. This was often accomplished by duties; and those duties, so far as they were laid for prohibition, total or partial, and not for revenue, were regarded as regulations of commerce. Refer to the journals of the Continental Congress, vol. 1, pp. 28, 175, 176; vol. 2, p. 189; the examination of Dr. Benjamin Franklin at the bar of the House of Commons on February 7, 1776 (1 Bigelow's Life of Franklin, pp. 478, 479); John Dickinson's "Letters from a Farmer," published in 1768, pp. 15, 18-19, 37-42, 43 (note), 60, 61, 66; Dr. Franklin's letter to Joseph Galloway of February 25, 1775 (8 Spark's Franklin's Works, p. 146); John Adams's letter to Jay of July 19, 1785 (Works of John Adams, vol. 8, pp. 282, 283). The same view was maintained by the leading jurists and statesmen of the first two generations after the adoption of the Constitution; and with practical unanimity they based the protective tariff duties on the commerce clause of the Constitution. 1 Story on the Constitution, sec. 963; 2 Story, 1080 et seq.; James Madison's letter to Joseph C. Cabell of March 22, 1827 (Writings of James Madison, vol. 3, p. 571); his letter to Cabell of September 18, 1828 (3 Madison, p. 636); Henry Clay's reply to Barbour, March 31, 1824 (Annals of Congress, p. 1994); Gulian C. Verplanck's letter to Drayton, New York, 1831, pp. 21-23; Speech of Thomas Smith Grimké, etc., Charleston, 1829, p. 51. Apart from the history of the period and the utterances of contemporaneous writers, the Constitution itself affords the most convincing proof that the right to regulate included the right to prohibit. This is shown beyond question when we consider the great compromises of the Constitution. So clearly did the framers recognize that the power to regulate commerce would include the power to prohibit, that they inserted an express exception to such power. Art. 1, sec. 9. If the power to regulate did not include the right to prohibit, all the heated discussion in the Constitutional Convention on Argument for the United States. the prohibition of the slave trade was a case of "much ado about nothing." It cannot be contended that the power to prohibit the migration of freemen and the importation of slaves is referable to any other clause in the Constitution. The framers of the Constitution regarded it as inherent in the power to regulate trade, and the exception that such legislation should not be made prior to 1808 is the clearest possible statement that after that year the prohibitory regulation could be made under the commerce clause of the Constitution. In the exercise of its power to regulate foreign commerce, Congress has never hesitated to prohibit commerce in any particular article, or even to stop foreign commerce altogether, either for a fixed period of time or indefinitely. A well-known instance of partial prohibition is that of obscene literature, which has been part of our laws ever since the tariff act of August 30, 1842, ch. 270, sec. 28. To the latter class belong the wellknown non-importation and embargo laws of the period prior to the war of 1812. See Gibbons v. Ogden, 9 Wheat. 1, 192193; 2 Story on the Constitution, secs. 1264, 1289, 1290. Congress has the same power over interstate commerce as over commerce with the Indian tribes. The question whether, under its power to regulate commerce with the Indian tribes, it could exclude any selected article from such commerce as deleterious, came up for decision in United States v. Holliday, 3 Wall. 407, 416-418, and was decided in the affirmative in an opinion by Mr. Justice Miller. United States v. Le Bris, 12 U. S. 278; Sarlls v. United States, 152 U. S. 570; United States v. Mayrand, 154 U. S. 552. If Congress can exclude obscene literature from foreign commerce, why not from interstate commerce also; and if it can exclude obscene literature, why can it not exclude lottery tickets? If it can exclude spirituous liquors from commerce with the Indian tribes, why not from interstate commerce also; and if it can exclude spirituous liquors, why can it not exclude lottery tickets? The principle has in effect already been decided by this court. States have undertaken in the interests of the public health to |