Section 14 of a collection of Supreme Court opinions by the United States Supreme Court. This is the LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Elsie Sawin. The United States versus Wong Kim Ark 169. US 649. Decided March 27, 1898. Part 4. Please note this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading emits legal citations found within the text of the court's opinion. In the great case of the exchange 1812-7 Cranch 116, the grounds upon which foreign ministers are and other aliens are not exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning of which it will be sufficient for our present purpose to give little more than the outlines. The opinion did not touch upon the anomalous castes of the Indian tribes, the true relation of which to the United States was not directly brought up before this court until some years afterwards in Cherokee Nation versus Georgia, 1831. 5 Pet 1. Nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of hostile occupation, such as was also afterwards presented in United States versus rice, above sighted. But in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof. The Chief Justice first laid down the general principle, quote, the jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself, any restriction upon it deriving validity from an external source, one implied diminution of a sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power, which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either expressed or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction, but if understood, not less obligatory, end quote. He then stated and supported by argument and illustration the propositions that, quote, this full and absolute territorial jurisdiction being like the attribute of every sovereign and being incapable of conferring extra territorial power, end quote, has, quote, given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. The first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because the foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation. A second case standing on the same principles with the first is the immunity which all civilized nations allow to foreign ministers. A third case in which a sovereign is understood to seed a portion of his territorial jurisdiction is where he allows the troops of a foreign prince to path through his dominions, end quote. And in conclusion that, quote, a public armed ship in the service of a foreign sovereign with whom the government of the United States is at peace and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that while necessarily within it and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country, end quote. Asked to the immunity of a foreign minister, he said, quote, whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents or by a political fiction, suppose him to be extraterritorial, and therefore in point of law, not within the jurisdiction of the sovereign at whose court he resides, still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of extraterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attached to foreign ministers is implied from the considerations that without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with the foreign power to the care of a person whom he has selected for that purpose cannot intend to subject his minister to any degree to that power, and therefore a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain, which are essential to the dignity of his sovereign and to the duties he is bound to perform, end quote. The reasons for not allowing to other aliens exemption, quote, from the jurisdiction of the country in which they are found, end quote, were stated as follows, quote, when private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction and the government to degradation. As such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found and no one motive for requiring it, the implied license therefore under which they enter can never be construed to grant such exemption, end quote. In short, the judgment in the case of the exchange declared as incontrovertible principles that the jurisdiction of every nation within its own territory is exclusive and absolute and is susceptible of no limitation not imposed by the nation itself, that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express, or implied, that upon its consent to cede or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission and of the foreign ministers and public ships of war and that the implied license under which preven individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. From the first organization of the national government under the constitution, the naturalization acts of the United States and providing for the admission of aliens to citizenship by judicial proceedings uniformly required every applicant to have resided for a certain time, quote, within the limits and under the jurisdiction of the United States, end quote, and thus supplied the words, quote, under the jurisdiction of the United States, end quote, to aliens residing here before they had taken an oath to support the constitution of the United States or had renounced allegiance to a foreign government. And from 1795, the provisions of those acts which granted citizenship to foreign-born children of American parents described such children as, quote, born out of the limits and jurisdiction of the United States, end quote. Thus, Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as, quote, under the jurisdiction of the United States, end quote, and American parents residing abroad as, quote, out of the jurisdiction of the United States, end quote, the words, quote, in the United States and subject to the jurisdiction thereof, end quote, and the first sentence of the 14th Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the amendment and by the legislatures which adopted it in the same sentence in which the like words have been used by Chief Justice Marshall in the well-known case of the exchange and as the equivalent of the words, quote, within the limits and under the jurisdiction of the United States, end quote, and the converse of the words, quote, out of the limits and jurisdiction of the United States, end quote, as habitually used in the naturalization acts. This presumption is confirmed by the use of the word jurisdiction in the last clause of the same section of the 14th Amendment, which forbids any state to, quote, deny to any person within its jurisdiction the equal protection of the laws, end quote. It is impossible to construe the words, quote, subject to the jurisdiction thereof, end quote, in the opening sentence as less comprehensive than the words, quote, within its jurisdiction, end quote, in the concluding sentence of the same section, or to hold that person's, quote, within the jurisdiction, end quote, of one of the states of the union or not, quote, subject to the jurisdiction of the United States, end quote. These considerations confirm the view already expressed in this opinion that the opening sentence of the 14th Amendment is throughout affirmative and declaratory and tended to allay doubts into subtle controversies which had arisen and not to impose any new restrictions upon citizenship. By the Civil Rights Act of 1866, quote, all persons born in the United States and not subject to any foreign power excluding Indians not taxed, end quote, were declared to be citizens of the United States, and the light of the law as previously established and of the history of the times, it can hardly be doubted that the words of that act, quote, not subject to any foreign power, end quote, were not intended to exclude any children born in this country from the citizenship which would there to for have been their birthright, or for instance, for the first time in our history, to deny the right of citizenship to native born children of foreign white parents, not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, quote, not subject to any foreign power, end quote, gave way in the 14th Amendment of the Constitution to the affirmative words, quote, subject to the jurisdiction of the United States, end quote. This sentence of the 14th Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed, quote, born in the United States, naturalized in the United States, and subject to the jurisdiction thereof, end quote, in short as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents and has left that subject to be regulated as it had always been by Congress in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization. The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined in the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed in well considered opinions of the executive departments of the government since the adoption of the 14th Amendment of the Constitution. In 1869, Attorney General Whore gave to Mr. Fish, the Secretary of State, an opinion that children born and domiciled abroad whose fathers were native-born citizens of the United States and had at some time resided there and were under the statute of February 10th, 1855, C71, citizens of the United States, end quote, entitled to all the privileges of citizenship which it is in the power of the United States government to confer within the sovereignty and jurisdiction of this nation they are undoubtedly entitled to all the privileges of citizens, but, end quote, the Attorney General added, quote, while the United States may by law fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory interfere with the just rights of such nation to the government and control of its own subjects, if therefore by the laws of the country of their birth children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation or by undertaking to extend to them the rights of citizens of this country to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory or to change the relation to other foreign nations which by reason of their place of birth may at any time exist, the rule of the common law I understand to be that a person quote born in a strange country under the obedience of a strange prince or country is an alien end quote and that every person owes allegiance to the country of his birth end quote in 1871 Mr. Fish writing to Mr. Marsh the American minister to Italy said quote the 14th amendment to the constitution declares that quote all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states end quote this is simply an affirmance of the common law of england and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity irrespective of parentage the qualification quote and subject to the jurisdiction thereof end quote was probably intended to exclude the children of foreign ministers and of other persons who may be within our territory with rights of extraterritoriality end quote in august 1873 president grant in the exercise of the authority expressly conferred upon the president by article two section two of the constitution to quote require the opinion and writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices end quote required the opinions of the members of his cabinet upon several questions of allegiance naturalization in expatriation mr fish in his opinion which is entitled to much weight as well from the circumstances under which it was rendered as from its masterly treatment of the subject said quote every independent state has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory and may therefore change their nationality by naturalization and this without regard to the municipal laws of the country whose subjects are so naturalized as long as they remain or exercise the rights conferred by naturalization within the territory and jurisdiction of the state which grants it it may also endow with the rights and privileges of its citizenship persons residing in other countries so as to entitle them to all rights of property and of succession within its limits and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the state thus conferring its citizenship but no sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties there too nor can the municipal law of one state interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign state and without the jurisdiction of their own country it is evident from the proviso in the act of 10th February 1855 this quote that the rights of citizenship shall not descend to persons whose fathers never resided in the united states and quote that the law making power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the united states and has denied to them what pertains to other American citizens the right of transmitting citizenship to their children unless they shall have made themselves residents of the united states or in the language of the 14th amendment of the constitution have made themselves quote subject to the jurisdiction thereof end quote the child born of alien parents in the united states has held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father the same principle on which such children are held by us to be citizens of the united states and to be subject to duties to this country applies to the children of american fathers born without the jurisdiction of the united states and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it such children are born to a double character the citizenship of the fathers that of the child so far as the laws of the country of which the father is a citizen are concerned and within the jurisdiction of that country but the child from the circumstances of his birth may acquire rights and owes another feel to you besides that which attaches to the father end quote in 1886 upon the application of a son born in france of an american citizen and residing in france for a passport mr bayard the secretary of state as appears by letters from him to the secretary of legation in paris and found the latter to the applicant quoted and adopted the conclusions of attorney general whore and his opinion above cited these opinions go to show that since the adoption of the 14th amendment the executive branch of the government the one charged with the duty of protecting american citizens abroad against unjust treatment by other nations has taken the same view of the act of congress of 1855 declaring children born abroad of american citizens to be themselves citizens which has mentioned in a former part of this opinion the british foreign office has taken of similar acts of parliament holding that such statutes cannot consistently with our own established rule of citizenship by birth in this country operate extra territorially so far as to relieve any person born and residing in a foreign country and subject to its government from his allegiance to that country in a very recent case the supreme court of new jersey held that a person born in this country of scotch parents who were domiciled but had not been naturalized here was quote subject to the jurisdiction of the united states and quote within the meaning of the 14th amendment and was quote not subject to any foreign power and quote within the meaning of the civil rights act of 1866 and in an opinion delivered by justice van sickle with a concurrence of chief justice beastly said quote the object of the 14th amendment as is well known was to confer upon the colored race the right of citizenship yet however gave to the colored people no right superior to that granted to the white race the ancestors of all the colored people then in the united states were a foreign birth and could not have been naturalized or in any way have become entitled to the right of citizenship the colored people who are no more subject to the jurisdiction of the united states by reason of their birth here then were the white children born in this country of parents who are not citizens the same rule must be applied to both races and unless the general rule that when the parents are domiciled here birth establishes the right of citizenship is accepted the 14th amendment has failed to accomplish its purpose and the colored people are not citizens the 14th amendment by the language quote all persons born in the united states and subject to the jurisdiction thereof and quote was intended to bring all races without distinction of color within the rule which prior to that time pertain to the white race and quote the foregoing considerations and authorities irresistibly lead us to these conclusions the 14th amendment affirms the ancient and fundamental rule of citizenship by birth within the territory and the allegiance and under the protection of the country including all children here born of resident aliens with the exceptions or qualifications as old as the rule itself of children of foreign sovereigns or their ministers or born on foreign public ships or of enemies within and during a hostile occupation of part of our territory and with the single additional exception of children of members of the indian tribes when direct allegiance to their several tribes the amendment and clear words and and manifest intent includes the children born within the territory of the united states of all other persons of whatever race or color domiciled within the united states every citizen or subject of another country while domiciled here is within the allegiance and the protection and consequently subject to the jurisdiction of the united states his allegiance to the united states is direct and immediate and although but local and temporary continuing only so long as he remains within our territory is yet in the words of Lord Koch and Calvin's case seven rep six a quote strong enough to make a natural subject for if he hath issue here that issue is a natural born subject end quote and his child as said by Mr. Binney in his essay before quoted quote if born in the country is as much a citizen as a natural born child of a citizen and by operation in the same principle end quote it can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides seeing that as said by Mr. Webster when secretary of state in his report to the president on thrashers case in 1851 and since repeated by this court quote independently of a residence with intention to continue such residents independently of any domicillation independently of the taking of any oath of allegiance or renouncing any former allegiance it is well known that by the public law an alien or a stranger born for so long a time as he continues within the dominions of a foreign government owes obedience to the laws of that government and may be punished for treason or other crimes as a native born subject might be unless his case is varied by some treaties to violations end quote end of section 14 section 15 of a collection of supreme court opinions by the united states supreme court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Elsie Selwyn united states versus Wong Kim Ark 169 us 649 decided March 27th 1898 part five please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion to hold that the 14th amendment of the constitution excludes from citizenship the children born in the united states of citizens or subjects of other countries would be to deny citizenship to thousands of persons of english, scotch, irish, german or other european parentage who have always been considered and treated as citizens of the united states 6 whatever considerations in the absence of a controlling provision of the constitution might influence the legislative or the executive branch of the government to decline to admit persons of the chinese race to the status of citizens of the united states there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the 14th amendment which declares in ordains that quote all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states end quote chinese persons born out of the united states remaining subjects of the emperor of china and not having become citizens of the united states are entitled to the protection of an o-legions to the united states so long as they are permitted by the united states to reside here and are quote subject to the jurisdiction thereof end quote in the same sense as all other aliens residing in the united states and yik wo versus hopkins the decision was that an ordinance of the city of san francisco regulating a certain business and which has executed by the board of supervisors made an arbitrary discrimination between natives of china still subjects of the emperor of china but domiciled in the united states and all other persons was contrary to the 14th amendment of the constitution mr. justice matthews in delivering the opinion of the court said quote the right of the petitioners as affected by the proceedings of which they complain are not less because they are aliens and subjects of the emperor of china the 14th amendment to the constitution is not confined to the protection of citizens it says quote nor shall any state deprive any person of life liberty or property without due process of law nor deny to any person within a jurisdiction the equal protection of the laws end quote these provisions are universal in their application to all persons within the territorial jurisdiction without regard to any differences of race of color or of nationality and the equal protection of the laws is a pledge of the protection of equal laws it is accordingly enacted by section one thousand nine hundred and seventy seven of the revised statutes that quote all persons within the jurisdiction of the united states shall have the same right in every state and territory to make and enforce contracts just to be parties give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment pains penalties taxes licenses and exactions of every kind and to no other end quote the questions we have to consider and decide in these cases therefore are to be treated as involving the rights of every citizen of the united states equally with those of the strangers and aliens who now invoke the jurisdiction of this court end quote the manner in which reference was made in the passage above quoted to section one thousand nine hundred and seventy seven of the revised statutes shows that the change of phrase in that section reenacting section sixteen of the statute of may thirty first eighteen seventy see one hundred and fourteen sixteen statute one hundred and forty four as compared with section one of the civil rights act of eighteen sixty six by substituting for the words in that act quote of every race and color and quote the words quote within the jurisdiction of the united states end quote was not considered as making the section as it now stands less applicable to persons of every race and color and nationality than it was in its original form and as hardly consistent with attributing any narrower meaning to the words quote subject to the jurisdiction thereof end quote in the first sentence of the fourteenth amendment of the constitution which may itself have been the cause of the change in the phraseology of that provision of the civil rights act the decision in yick woe versus hopkins indeed did not directly pass upon the effect of these words in the fourteenth amendment but turned upon subsequent provisions of the same section but as already observed it is impossible to attribute to the words quote subject to the jurisdiction thereof and quote that is to say of the united states at the beginning a less comprehensive meaning than to the words quote within its jurisdiction end quote that is of the state at the end of the same section or to hold that persons who are indisputably quote within the jurisdiction end quote of the state are not quote subject to the jurisdiction end quote of the nation it necessarily follows that persons born in china subjects of the emperor of china but domiciled in the united states having been a judged in yick woe versus hopkins to be within the jurisdiction of the state within the meaning of the concluding sentence must be held to be subject to the jurisdiction of the united states within the meaning of the first sentence of the section of the constitution and their children quote born in the united states end quote cannot be less quote subject to the jurisdiction thereof end quote accordingly in quak ting versus united states 1891 which like the case at bar was a writ of habeas corpus to test the lawfulness of the exclusion of the chinese person who alleged that he was a citizen of the united states by birth it was assumed on all hands that a person of the chinese race born in the united states was a citizen of the united states the decision turned upon the failure of the petitioner to prove that he was born in this country and the questioner issue was as stated in the opinion of the majority of the court delivered by mr. justice field quote whether the evidence was sufficient to show that the petitioner was a citizen of the united states end quote or as stated by mr. justice brewer and his dissenting opinion quote whether the petitioner was born in this country or not end quote in state versus achu 1881 16 nevada 50 58 the supreme court of nevada said quote the amendments did not confer the right of citizenship upon the mongolian race except such as are born within the united states end quote in the courts of the united states in the ninth circuit it has been uniformly held in a series of opinions delivered by mr. justice field judge soler judge deedy judge hanford and judge morrow then a child born in the united states of chinese parents subjects of the emperor of china is a native born citizen of the united states and we are not aware of any judicial decision to the contrary during the debates in the senate in january in february 1866 upon the civil rights bill mr. trumbull the chairman of the committee which reported the bill moved to amend the first sentence there of so as to read a quote all persons born in the united states are not subject to any foreign power are hereby declared to be citizens of the united states without distinction of color end quote mr. cohen of pennsylvania asked quote whether it will not have the effect of naturalizing the children of chinese and gypsies born in this country end quote mr. trumbull answered quote undoubtedly end quote and asked quote is not the child born in this country of german parents a citizen end quote mr. cohen replied quote the children of german parents are citizens but germans are not chinese end quote mr. trumbull rejoined quote the law makes no such distinction and the child of an asiatic is just as much a citizen as a child of a european end quote mr. reverdy johnson suggested that the words quote without distinction of color end quote should be omitted as unnecessary and said quote the amendment as it stands is that all persons born in the united states and not subject to a foreign power shall by virtue of birth be citizens to that i am willing to consent and that comprehends all persons without any reference to race or color who may be so born end quote mr. trumbull agreed that striking out those words would make no difference in the meaning but thought it better that they should be retained to remove all possible doubt the 14th amendment of the constitution as originally framed by the house of representatives lacked the opening sentence when it came before the senate in may 1866 mr. howard of michigan moved to amend by prefixing the sentence in its present form less the words or naturalized and reading quote all persons born in the united states and subject to the jurisdiction thereof are citizens of the united states and of the state herein they reside end quote mr. cohen objected upon the ground that the mongolian race ought to be excluded and said quote is the child of the chinese immigrant in california a citizen i do not know how my honorable friend from california looks upon chinese but i do know how some of his fellow citizens regard them i have no doubt that now they are useful and i have no doubt that within proper restraints allowing that state in the other pacific states to manage them as they may see fit they may be useful but i would not tie their hands by the constitution of the united states so as to prevent them hereafter from dealing with them as in their wisdom they see fit end quote mr. conness of california replied quote the proposition before us relates simply in that respect to the children be gotten of chinese parents in california and it is proposed to declare that they shall be citizens we have declared that by law now it is proposed to incorporate the same provision in the fundamental instrument of the nation i am in favor of doing so i voted for the proposition to declare that the children of all parentage whatever born in california should be regarded and treated as citizens of the united states entitled to equal civil rights with other citizens of the united states we are entirely ready to accept the provision proposed in this constitutional amendment that the children born here of mongolian parents shall be declared by the constitution of the united states to be entitled to civil rights and to equal protection before the law with others end quote it does not appear to have been suggested in either house of congress that children born in the united states of chinese parents would not come within the terms and effect of the leading sentence of the 14th amendment doubtless the intention of the congress which framed and of the states which adopted this amendment of the constitution must be sought in the words of the amendment and the debates in congress are not admissible as evidence to control the meaning of those words but the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves and are at the least interesting as showing that the application of the amendment to the chinese race was considered and not overlooked the acts of congress known as the chinese exclusion acts the earliest of which was passed some 14 years after the adoption of the constitutional amendment cannot control its meaning or impair its effect but must be construed and executed and subordinated to its provisions and the right of the united states as exercised by and under those acts to exclude or to expel from the country persons of the chinese race born in china and continuing to be subject of the emperor of china though having acquired a commercial down style in the united states has been upheld by this court for reasons applicable to all aliens alike and an inapplicable to citizens of whatever race or color and phong yue ting versus united states the right of the united states to expel such chinese persons was placed upon the grounds that the right to exclude or to expel all aliens or any class of aliens absolutely or upon certain conditions is an inherent and inalienable right of every sovereign and independent nation essential to its safety its independence and its welfare that the power to exclude or to expel aliens being a power affecting international relations is vested in the political departments of the government and is to be regulated by treaty or by act of the congress and to be executed by the executive authority according to the regulation so established except so far as the judicial department has been authorized by treaty or by statute or is required by the paramount law of the constitution to intervene that the power to exclude and the power to expel aliens rest upon one foundation are derived from one source are supported by the same reasons and are in truth but parts of one in the same power and therefore that the power of congress to expel like the power to exclude aliens or any specified class of aliens from the country may be exercised entirely through executive officers or congress may call in the aid of the judiciary to ascertain any contested facts on which an aliens right to be in the country has been made by congress to depend and lam moon sing versus united states the same principles were reaffirmed and were applied to a chinese person born in china who had acquired a commercial domicile in the united states and who having voluntarily left the country on a temporary visit to china and with the intention of returning to and continuing his residence in this country claim the right under a statute or treaty to reenter it and the distinction between the right of an alien to the protection of the constitution in laws of the united states for his person and property while within the jurisdiction thereof and his claim of a right to reenter the united states after a visit to his native land was expressed by the court as follows quote he is nonetheless an alien because of his having a commercial domicile in this country while he lawfully remains here he is entitled to the benefit of the guarantees of life liberty and property secured by the constitution to all persons of whatever race within the jurisdiction of the united states his personal rights when he is in this country and such of his property as is here during his absence are fully protected by the supreme law of the land as if he were a native or naturalized citizen of the united states but when he has voluntarily gone from the country and is beyond his jurisdiction being an alien he cannot reenter the united states in violation of the will of the government as expressed in enactments of the law making power end quote it is true that chinese persons born in china cannot be naturalized like other aliens by proceedings under naturalization laws but this is for want of any statute or treaty authorizing or permitting such naturalization as will appear by tracing the history of the statutes treaties and decisions upon that subject always bearing in mind that the statutes enacted by congress as well as treaties made by the president and senate must yield to the paramount and supreme law of the constitution the power granted to congress by the constitution quote to establish a uniform rule of naturalization end quote was long ago adjudged by this court to be vested exclusively on congress for many years after the establishment of the original constitution and until two years after the adoption of the 14th amendment congress never authorized the naturalization of any but quote free white persons end quote by this treaty between the united states in china may july 28 1868 and promulgated february 5th 1870 was provided that quote nothing herein contained shall be held to confer naturalization upon citizens of the united states in china nor upon the subjects of china in the united states end quote by the act of july 14th 1870 c 254 section 7 for the first time the naturalization laws were quote extended to aliens of african nativity and to persons of african descent end quote 16 statutes 256 this extension as embodied in the revised statutes took the form of providing that those laws should quote apply to aliens being free white persons and two aliens of african nativity and to persons of african descent end quote and it was amended by the act of february 18th 1875 c 80 by inserting the words above printed in brackets those statutes were held by the circuit court of the united states in california not to embrace chinese aliens and by the act of may 6 1882 c 126 section 14 it was expressly enacted that quote hereafter no state court or court of the united states shall admit chinese to citizenship end quote in feng yuwei ting versus united states 1893 above cited this court said quote chinese persons not born in this country have never been recognized as citizens of the united states nor authorized to become such under the naturalization laws end quote the convention between the united states in china of 1894 provided that quote chinese laborers or chinese of any other class either permanently or temporarily residing in the united states shall have for the protection of their persons and property all rights that are given by the laws of the united states to citizens of the most favored nation accepting the right to become naturalized citizens end quote and it has since been decided by the same judge who held this appellee to be citizen of the united states by virtue of his birth therein that a native of china of the mongolian race could not be admitted to citizenship under the naturalization laws the 14th amendment of the constitution in the declaration that quote all persons born or naturalized in the united states and subjected to the jurisdiction thereof are citizens of the united states and have the state wherein they reside end quote contemplates two sources of citizenship and two only birth and naturalization citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law but citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution every person born in the united states and subject to the jurisdiction thereof becomes at once a citizen of the united states and needs no naturalization a person born out of the jurisdiction of the united states can only become a citizen by being naturalized either by treaty as in the case of the annexation of foreign territory or by authority of congress exercised either by declaring certain classes of persons to be citizens as in the enactments conferring citizenship upon foreign born children of citizens or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals as in the ordinary provisions of the naturalization acts the power of naturalization invested in congress by the constitution is a power to confer citizenship not a power to take it away quote a naturalized citizen end quote said chief justice marshal quote becomes a member of the society possessing all the rights of the native citizen and standing in the view of the constitution on the footing of a native the constitution does not authorize congress to enlarge or bridge those rights the simple power of the national legislature is to prescribe a uniform rule of naturalization and the exercise of this power exhausts it so far as respects the individual the constitution then takes him up and among other rights extends to him the capacity of suing in the courts of the united states precisely under the same circumstances under which a native might sue end quote congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress a fortiority no act or a mission of congress as to providing for the naturalization of parents or children of a particular race can affect citizenship acquired as the birthright by virtue of the constitution itself without any aid of legislation the 14th amendment while it leaves the power where it was before and congress to regulate naturalization has conferred no authority upon congress to restrict the effect of birth declared by the constitution to constitute a sufficient and complete right to citizenship no one doubts that the amendment as soon as it was promulgated applied to persons of african descent born in the united states wherever the birthplace of their parents might have been and yet for two years afterwards there was no statute authorizing persons of that race to be naturalized if the admission or the refusal of congress to permit certain classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens by birth it would be in the power of congress at any time by striking negras out of the naturalization laws and limiting those laws as they were formerly limited to white persons only to defeat the main purpose of the constitutional amendment the fact therefore that acts of congress or treaties have not permitted chinese persons born out of this country to become citizens by naturalization cannot exclude chinese persons born in this country from the operation of the broad and clear words of the constitution quote all persons born in the united states and subject to the jurisdiction thereof are citizens of the united states and quote seven upon the facts agreed in this case the american citizenship which won kim ark acquired by birth within united states has not been lost or taken away by anything happening since his birth no doubt he might himself after coming of age renounce this citizenship and become a citizen of the country of his parents or of any other country for by our law a solemnly declared by the congress quote the right of expatriation is a natural and inherent right of all people and quote and quote any declaration instruction opinion order or direction of any officer in the united states which denies restricts and pairs or questions the right of expatriation is declared inconsistent with the fundamental principles of the republic and quote whether any act of himself or of his parents during his minority could have the same effect is at least doubtful but it would be out of place to pursue that inquiry in so much as it is expressly agreed that his residence has always been in the united states and not elsewhere that each of his temporary visits to china the one for some months when he was about 17 years old and the other for something like a year about the time of his coming of age was made with the intention of returning and was followed by his actual return to the united states and quote that said wong kim ark has not either by himself or his parents acting for him ever renounced his allegiance to the united states and that he has never done or committed any act or thing to exclude him there from and quote the evident intention and the necessary effect of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination a single question stated at the beginning of this opinion namely whether a child born and the united states of parent of chinese descent who at the time of his birth are subjects of the emperor of china but have a permanent domicile and residence in the united states and are there carrying on business and are not employed in any diplomatic or official capacity under the emperor of china becomes at the time of his birth a citizen of the united states for the reasons above stated this court is of the opinion that the question must be answered in the affirmative order affirmed end of section 15 section 16 of a collection of supreme court opinions by the united states supreme court this is a libervox recording all libervox recordings are in the public domain for more information or to volunteer please visit libervox.org recording by gretchen laboon lottery case 188 us 321 decided february 23rd 1903 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion mr. justice harlan after making the foregoing statement of facts delivered the opinion of the court the appellate insists that the carrying of lottery tickets from one state to another state by an express company engaged in carrying freight and packages from state to state although such tickets may be contained in a box or package does not constitute and cannot by any act of congress be legally made to constitute commerce among the states within the meaning of the clause of the constitution of the united states providing that congress shall have power quote to regulate commerce with foreign nations and among the several states and with the indian tribes end quote consequently that congress cannot make it an offense to cause such tickets to be carried from one state to another the government insists that express companies when engaged for hire in the business of transportation from one state to another are instrumentalities of commerce among the states that the carrying of lottery tickets from one state to another is commerce which congress may regulate and that as a means of executing the power to regulate interstate commerce congress may make it an offense against the united states to cause lottery tickets to be carried from one state to another the questions presented by these opposing contentions are of great moment and are entitled to receive as they have received the most careful consideration what is the import of the word commerce as used in the constitution it is not defined by that instrument undoubtedly the carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic and which have in themselves recognized value in money constitutes interstate commerce but does not commerce among the several states include something more does not the carrying from one state to another by independent carriers of lottery tickets that entitle the holder to the payment of a certain amount of money therein specified also constitute commerce among the states it is contended by the parties that these questions are answered in the former decisions of this court the government insisting that the principles here to foreannounced support its position while the contrary is confidently asserted by the appellant this makes it necessary to ascertain the import of such decisions upon that inquiry we now enter promising that some propositions were advanced in argument that need not be considered in the examination of former judgments it will be best to look at them somewhat in the order in which they were rendered when prior adjudications have been thus correlated the particular grounds upon which the judgment in the present case may necessarily rest can be readily determined we may hear remark that some of the cases referred to may not bear directly upon the questions necessary to be decided but attention will be directed to them as throwing light upon the general inquiry as to the meaning and scope of the commerce clause of the constitution the leading case under the commerce clause of the constitution is gibbons v. Ogden referring to that clause chief justice marshal said quote the subject to be regulated is commerce and our constitution being as was aptly said at the bar one of enumeration and not of definition to ascertain the extent of the power it becomes necessary to settle the meaning of the word the council for the appellee would limit it to traffic to buying and selling or to the interchange of commodities and do not admit that it comprehends navigation this would restrict a general term applicable to many objects to one of its significations commerce undoubtedly is traffic but it is something more it is intercourse it describes the commercial intercourse between nations and parts of nations in all its branches and is regulated by prescribing rules for carrying on that intercourse it has been truly said that commerce as the word is used in the constitution is a unit every part of which is indicated by the term if this be the admitted meaning of the word in its application to foreign nations it must carry the same meaning throughout the sentence and remain a unit unless there be some plain intelligible cause which alters it the subject to which the power is next applied is to commerce among the several states the word among means intermingled with a thing which is among others is intermingled with them commerce among the states cannot stop at the external boundary line of each state but may be introduced into the interior it is not intended to say that these words comprehend that commerce which is completely internal which is carried on between man and man in a state or between different parts of the same state and which does not extend to or affect other states such a power would be inconvenient and is certainly unnecessary comprehensive as the word among is it may very properly be restricted to that commerce which concerns more states than one the genius in character of the whole government seem to be that the action is to be applied to all the external concerns of the nation and to those internal concerns which affect the states generally but not to those which are completely within a particular state which do not affect other states and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government end quote again quote we are now arrived at the inquiry what is this power it is the power to regulate that is to prescribe the rule by which commerce is to be governed this power like all others vested in congress is complete in itself may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the constitution these are expressed in plain terms and do not affect the questions which arise in this case or which have been discussed at the bar if as has always been understood the sovereignty of congress though limited to specific objects is plenary as to those objects the power over commerce with foreign nations and among the several states is vested in congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the united states end quote mr. justice johnson in the same case expressed his entire approbation of the judgment rendered by the court but delivered a separate opinion indicating the precise grounds upon which his conclusion rested referring to the grant of power over commerce he said quote my opinion is founded on the application of the words of the grant to the subject of it the power to regulate commerce here meant to be granted was that power to regulate commerce which previously existed in the states but what was that power the states were unquestionably supreme and each possessed that power over commerce which is acknowledged to reside in every sovereign state the law of nations regarding man as a social animal pronounces all commerce legitimate in a state of peace until prohibited by positive law the power of a sovereign state over commerce therefore amounts to nothing more than a power to limit and restrain it at pleasure and since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained it follows that the power must be exclusive it can reside but in one potentate and hence the grant of this power carries with it the whole subject end quote leaving nothing for the state to act upon the principles announced in gibbons v ogden were reaffirmed in brown v maryland after expressing doubt whether any of the evils proceeding from the feebleness of the federal government contributed more to the establishing of the present constitutional system than the deep and general conviction that commerce ought to be regulated by congress chief justice marshall speaking for the court said quote it is not therefore matter of surprise that the grant should be as extensive as the mischief and should comprehend all foreign commerce and all commerce among the states end quote considering the question as to the just extent of the power to regulate commerce with foreign nations and among the several states the court reaffirmed the doctrine that the power was quote complete in itself and to acknowledge no limitations other than are prescribed by the constitution commerce is intercourse one of its most ordinary ingredients is traffic end quote in the passenger cases the court adjudged certain statutes of new york and massachusetts imposing taxes upon alien passengers arriving in the ports of those states to be in violation of the constitution and laws of the united states in the separate opinions delivered by the justices there will not be found any expression of doubt as to the doctrines announced in gibbons v ogden mr. justice mclean said quote commerce is defined to be an exchange of commodities but this definition does not convey the full meaning of the term it includes navigation and intercourse that the transportation of passengers is part of commerce is not now an open question end quote mr. justice greer said quote commerce as defined by this court means something more than traffic it is intercourse and the power committed to congress to regulate commerce is exercised by prescribing rules for carrying on that intercourse end quote the same views were expressed by mr. justice wane in his separate opinion he regarded the question then before the court as covered by the decision in gibbons v ogden and in respect to that case he said quote it will always be a high and honorable proof of the eminence of the american bar of that day and of the talents and distinguished ability of the judges who were then in the places which we now occupy end quote mr. justice catron and mr. justice mckenley announced substantially the same views in almay v state of california a statute of california imposing a stamp duty upon bills of lading for gold or silver transported from that state to any port or place out of the state was held to be a tax on exports in violation of the provision of the constitution declaring that quote no tax or duty shall be laid on articles exported from any state end quote but in woodruff v parham this court referring to the almay case said it was well decided upon a ground not mentioned in the opinion of the court namely that although the tax there in question was only on bills of lading quote such a tax was a regulation of commerce attacks imposed upon the transportation of goods from one state to another over the high seas in conflict with that freedom of transit of goods and persons between one state and another which is within the rule laid down in krandall v nevada and with the authority of congress to regulate commerce among the states end quote in hindersen and company v mayor and company which involved the constitutional validity of a statute of new york relating to vessels bringing passengers to that port this court speaking by mr. justice miller said quote as already indicated the provisions of the constitution of the united states on which the principal reliance is placed to make void the statute of new york is that which gives to congress the power to regulate commerce with foreign nations as was said in united states v holiday commerce with foreign nations means commerce between citizens of the united states and citizens or subjects of foreign governments it means trade and it means intercourse it means commercial intercourse between nations and parts of nations in all its branches it includes navigation as the principal means by which foreign intercourse is affected to regulate this trade and intercourse is to prescribe the rules by which it shall be conducted quote the mind says the great chief justice can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation which shall be silent on the admission of the vessels of one nation into the ports of another end quote and he might have added with equal force which prescribed no terms for the admission of their cargo or their passengers gibbons v ogden end quote the question of the scope of the commerce clause was again considered in pensacola telegraph company v western union telegraph company involving the validity of a statute of florida which assumed to confer upon a local telegraph company the exclusive right to establish and maintain lines of electric telegraph in certain counties of florida this court held the act to be unconstitutional chief justice weight delivering its judgment said quote since the case of gibbons v ogden it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of congress post offices and post roads are established to facilitate the transmission of intelligence both commerce and the postal service are placed within the power of congress because being national in their operation they should be under the protecting care of the national government the powers thus granted are not confined to the instrumentalities of commerce or the postal service known or in use when the constitution was adopted but they keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances they extend from the horse with its rider to the stagecoach from the sailing vessel to the steamboat from the coach and the steamboat to the railroad and from the railroad to the telegraph as these new agencies are successfully brought into use to meet the demands of increasing population and wealth they were intended for the government of the business to which they relate at all times and under all circumstances as they were entrusted to the general government for the good of the nation it is not only the right but the duty of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation the electric telegraph marks an epic in the progress of time in a little more than a quarter of a century it has changed the habits of business and become one of the necessities of commerce it is indispensable as a means of intercommunication but especially is it so in commercial transactions end quote in his dissenting opinion in that case mr. justice field speaks of the importance of the telegraph quote as a means of intercourse end quote and of its constant use in commercial transactions in county of mobile versus kimble mr. justice field delivering the judgment of the court said quote commerce with foreign countries and among the 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 end quote this principle was expressly reaffirmed in glaucus terfere company v pennsylvania applying the doctrine announced in pennsycola telegraph company v western union telegraph company it was held in telegraph company v texas that the law of a state imposing attacks on private telegraph messages sent out of the state was unconstitutional as being in effect a regulation of interstate commerce in brown v houston it was declared by the court speaking by mr. justice broadly that quote the power to regulate commerce among the several states is granted to congress in terms it's absolute as is the power to regulate commerce with foreign nations end quote the same thought was expressed in bowman v chicago and company railway company crutcher v kentucky and pittsburgh coal company v baits in pickard v pulman southern car company it was said to be settled by the adjudged cases that to tex quote the transit of passengers from foreign countries or between the states is to regulate commerce end quote in western union telegraph company v pendleton the court recognized the commerce with foreign countries and among the states which congress could regulate as including not only the exchange and transportation of commodities or visible tangible things but the carriage of persons and the transmission by telegraph of ideas wishes orders and intelligence see also ratterman v telegraph company and laloupe v port of mobile in covington and company bridge company v kentucky the question was as to the validity under the commerce clause of the constitution of an act of the kentucky legislature relating to tolls to be charged or received for passing over the bridge of the covington and sincenity bridge company a corporation of both kentucky and ohio erected between covington and sincenity a state enactment prescribing a rate of toll on the bridge was held to be unconstitutional as an unauthorized regulation of interstate commerce the court reaffirming the principles announced in gloucester ferry company v pennsylvania and in wabash and company railway company v illinois said among other things quote commerce was defined in gibbons v augden to be intercourse and the thousands of people who daily pass and repass over this bridge may be as truly said to be engaged in commerce as if they were shipping cargoes of merchandise from new york to liverpool while the bridge company is not itself a common carrier it affords a highway for such carriage and a toll upon such bridge is as much a tax upon commerce as a toll upon a turnpike is a tax upon the traffic of such turnpike or the charges upon a ferry attacks upon the commerce across the river end quote at the present term of the court we said that quote transportation for others as an independent business is commerce irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered end quote handling and company v kansas city southern railway this reference to prior educations could be extended if it were necessary to do so the cases cited however sufficiently indicate the grounds upon which this court has proceeded when determining the meaning and scope of the commerce clause they show that commerce among the states embraces navigation intercourse communication traffic and the transit of persons and the transmission of messages by telegraph they also show that the power to regulate commerce among the several states is vested in congress is absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of power as are found in the constitution of the united states that such power is plenary complete in itself and may be exerted by congress to its utmost extent subject only to such limitations as the constitution imposes upon the exercise of the powers granted by it and that in determining the character of the regulations to be adopted by congress has a large discretion which is not to be controlled by the courts simply because in their opinion such regulations may not be the best or most effective that could be employed we come then to inquire whether there is any solid foundation upon which to rest the contention that congress may not regulate the caring of lottery tickets from one state to another at least by corporations or companies whose business it is for hire to carry tangible property from one state to another it was said in argument that lottery tickets are not of any real or substantial value in themselves and therefore are not subjects of commerce if that were conceded to be the only legal test as to what are to be deemed subjects of the commerce that may be regulated by congress we cannot accept as accurate the broad statement that such tickets are of no value upon their face value they showed that the lottery company offered a large capital prize to be paid to the holder of the ticket winning the prize at the drawing advertised to be held at asuncion perigway money was placed on deposit in different banks in the united states to be applied by the agents representing the lottery company to the prompt payment of prizes these tickets were the subject of traffic they could have been sold and the holder was assured that the company would pay to him the amount of the prize drawn that the holder might not have been able to enforce his claim in the courts of any country making the drawing of lotteries illegal and forbidding the circulation of lottery tickets did not change the fact that the tickets issued by the foreign company represented so much money payable to the person holding them and who might draw the prizes affixed to them even if a holder did not draw a prize the tickets before the drawing had a money value in the market among those who chose to sell or buy lottery tickets in short a lottery ticket is a subject of traffic and is so designated in the act of 1895 that fact is not without significance in view of what this court has said that act council for the accused well remarks was intended to supplement the provisions of prior acts excluding lottery tickets from the males and prohibiting the importation of lottery matter from abroad and to prohibit the causing lottery tickets to be carried and lottery tickets and lottery advertisements to be transferred from one state to another by any means or method we are of opinion that lottery tickets are subjects of traffic and therefore are subjects of commerce and the regulation of the carriage of such tickets from state to state at least by independent carriers is a regulation of commerce among the several states but it is said that the statute in question does not regulate the carrying of lottery tickets from state to state but by punishing those who cause them to be so carried congress in effect prohibits such carrying that in respect of the caring from one state to another of articles or things that are in fact or according to usage in business the subjects of commerce the authority given congress was not to prohibit but only to regulate this view was earnestly pressed at the bar by learned counsel and must be examined it is to be remarked that the constitution does not define what is to be deemed a legitimate regulation of interstate commerce in gibbons v. Ogden it was said that the power to regulate such commerce is the power to prescribe the rule by which it is to be governed but this general observation leaves it to be determined when the question comes before the court whether congress in prescribing a particular rule has exceeded its power under the constitution while our government must be acknowledged by all to be one of enumerated powers macullo versus maryland the constitution does not attempt to set forth all the means by which such powers may be carried into execution it leaves to congress a large discretion as to the means that may be employed in executing a given power the sound construction of the constitution this court has said quote must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people let the end be legitimate let it be within the scope of the constitution and all means which are appropriate which are plainly adapted to that end which are not prohibited but consistent with the letter and spirit of the constitution are constitutional end quote we have said that the caring from state to state of lottery tickets constitutes interstate commerce and that the regulation of such commerce is within the power of congress under the constitution 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 people 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 in determining whether regulation may not under some circumstances properly take the form or have the effect of prohibition the nature of the interstate traffic which it was sought by the act of may second 1895 to suppress cannot be overlooked when enacting that statute congress no doubt shared the views upon the subject of lotteries heretofore expressed by this court in feyland v virginia after observing that the suppression of nuisances injurious to public health or morality is among the most important duties of government this court said quote experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries the former are confined to a few persons and places but the latter infests the whole community it enters every dwelling it reaches every class it preys upon the hard earnings of the poor it plunders the ignorant and simple end quote in other cases we have a judge that authority given by legislative enactment to carry on a lottery although based upon a consideration in money was not protected by the contract clause of the constitution this for the reason that no state may bargain away its power to protect the public morals nor excuse its failure to perform a public duty by saying that it had agreed by legislative enactment not to do so stone v mississippi douglas v kentucky if a state when considering legislation for the suppression of lotteries within its own limits may properly take into view the evils that in here in the raising of money in that mode why may not congress invested with the power to regulate commerce among the several states provide that such commerce shall not be polluted by the carrying of lottery tickets from one state to another in this connection it must not be forgotten that the power of congress to regulate commerce among the states is plenary is complete in itself and is subject to no limitations except such as may be found in the constitution what provision in that instrument can be regarded as limiting the exercise of the power granted what clause can be cited which in any degree countenance is the suggestion that one may of right carry or cause to be carried from one state to another that which will harm the public morals we cannot think of any clause of that instrument that could possibly be invoked by those who assert their right to send lottery tickets from state to state except the one providing that no person shall be deprived of his liberty without due process of law we have said that the liberty protected by the constitution embraces the right to be free in the enjoyment of one's faculties quote to be free to use them in all lawful ways to live and work where he will to earn his livelihood by any lawful calling to pursue any livelihood or evocation and for that purpose to enter into all contracts that may be proper end quote auger v louisiana but surely it will not be said to be a part of anyone's liberty as recognized by the supreme law of the land that he shall be allowed to introduce into commerce among the states an element that will be confessedly injurious to the public morals if it be said that the act of 1895 is inconsistent with the 10th amendment reserving to the states respectively or to the people the powers not delegated to the united states the answer is that the power to regulate commerce among the states has been expressly delegated to congress besides congress by that act does not assume to interfere with traffic or commerce and lottery tickets carried on exclusively within the limits of any state but has in view only commerce of that kind among the several states it has not assumed to interfere with the completely internal affairs of any state and has only legislated in respect of a matter which concerns the people of the united states as a state may for the purpose of guarding the morals of its own people forbid all sales of lottery tickets within its limits so congress for the purpose of guarding the people of the united states against the quote widespread pestilence of lotteries and quote and to protect the commerce which concerns all the states may prohibit the carrying of lottery tickets from one state to another in legislating upon the subject of the traffic and lottery tickets as carried on through interstate commerce congress only supplemented the action of those states perhaps all of them which for the protection of the public morals prohibit the drawing of lotteries as well as the seller circulation of lottery tickets within their respective limits it said in effect that it would not permit the declared policy of the states which sought to protect their people against the mischiefs of the lottery business to be overthrown or disregarded by the agency of interstate commerce we should hesitate long before judging that an evil of such a polling character carried on through interstate commerce cannot be met and crushed by the only power competent to that end we say competent to that end because congress alone has the power to occupy by legislation the whole field of interstate commerce what was said by this court upon a former occasion may well be here repeated quote the framers of the constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject matter specifically committed to its charge end quote and re-rar if the carrying of lottery tickets from one state to another be interstate commerce and if congress is of opinion that an effective regulation for the suppression of lotteries carried on through such commerce is to make it a criminal offense to cause lottery tickets to be carried from one state to another we know of no authority in the courts to hold that the means thus devised are not appropriate and necessary to protect the country at large against a species of interstate commerce which although in general use and somewhat favored in both national and state legislation in the early history of the country has grown into dispute and has become offensive to the entire people of the nation is a kind of traffic which no one can be entitled to pursue as of right that regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle transported from one state to another such cattle may have not withstanding the condition a value in money for some purposes and yet it cannot be doubted that congress under its power to regulate commerce may either provide for their being inspected before transportation begins or in its discretion may prohibit their being transported from one state to another indeed by the act of may 29th 1884 c 60 congress has provided quote that no railroad company within the united states or the owners or masters of any steam or sailing or other vessel or boat shall receive for transportation or transport from one state or territory to another or from any state into the district of columbia or from the district into any state any livestock affected with any contagious infectious or communicable disease and especially the disease known as plural pneumonia nor shall any person company or corporation deliver for such transportation to any railroad company or master or owner of any boat or vessel any livestock knowing them to be affected with any contagious infectious or communicable disease nor shall any person company or corporation drive on foot or transport and private conveyance from one state or territory to another or from any state into the district of columbia or from the district into any state any livestock knowing them to be affected with any contagious infectious or communicable disease and especially the disease known as plural end quote read v state of colorado the act of july 2nd 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 the object of that act was to protect trade and commerce against unlawful restraints and monopolies to accomplish that object congress declared certain contracts to be illegal that act in effect prohibited the doing of certain things and its prohibitory clauses have been sustained in several cases as valid under the power of congress to regulate interstate commerce united states v trans missouri freight association united states v joint traffic association addison pipe and steel company v united states in the case last named by the court referring to the power of congress to regulate commerce among the states said quote in gibbons supra the power was declared to be complete in itself and to acknowledge no limitations other than are prescribed by the constitution under this grant of power to congress that body in our judgment may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract will be when carried out to directly and not as a mere incident other and innocent purposes regulate to any substantial extent interstate commerce and when we speak of interstate we also include in our meaning foreign commerce we do not ascent to the correctness of the proposition that the constitutional guarantee of liberty to the individual to enter into private contracts limits the power of congress and prevents it from legislating upon the subject of contracts of the class mentioned the power to regulate interstate commerce is as stated by chief justice marshal full and complete in congress and there is no limitation in the grant of the power which excludes private contracts of the nature in question from the jurisdiction of that body nor is any such limitation contained in that other clause of the constitution which provides that no person shall be deprived of life liberty or property without due process of law end quote again quote the provision in the constitution does not as we believe exclude congress from legislating with regard to contracts of the above nature while in the exercise of its constitutional right to regulate commerce among the states on the contrary we think the provision regarding the liberty of the citizen is to some extent limited by the commerce clause of the constitution and that the power of congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially and not merely indirectly remotely incidentally and collaterally regulate to a greater or less degree commerce among the states end quote that regulation may sometimes take the form or have the effect of prohibition is also illustrated in the case of in re rar in mugler v kansas it was a judge that state legislation prohibiting the manufacture of spiritus malt vinas fermented or other intoxicating liquors within the limits of the state to be there sold or bartered for general use as a beverage does not necessarily infringe any right privilege or immunity secured by the constitution of the united states or by the amendments there to subsequently in bowman v chicago railway company this court held that ardent spirits distilled liquors ale and beer were subjects of exchange barter and traffic and were so recognized by the usages of the commercial world as well as by the laws of congress and the decisions of the courts in lazy v harden the court again held that spiritus liquors were recognized articles of commerce and declared a statute of iowa prohibiting the sale within its limits of any intoxicating liquors except for pharmaceutical medicinal chemical or sacramental purposes under a state license to be repugnant to the commerce clause of the constitution if applied to the sale within the state by the importer in the original unbroken packages of such liquors manufactured in and brought from another state and in determining whether a state could prohibit the sale within its limits in original unbroken packages of ardent spirits distilled liquors ale and beer imported from another state this court said that they were recognized by the laws of congress as well as by the commercial world quote as subjects of exchange barter and traffic and quote and that quote whatever our individual views as to the deleterous or dangerous qualities of particular articles we cannot hold that any articles which congress recognized as subjects of congress are not such and quote lazy v harden then followed the passage by congress of the act of august 8th 1890 providing quote that all fermented distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use consumption sale or storage therein shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers to the same extent and in the same manner as those such liquids or liquors had been produced in such state or territory and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise end quote that act was sustained in the rare case as a valid exercise of the power of congress to regulate commerce among the states in Rhodes v Iowa that statute all of its provisions being regarded was held as not causing the power of the state to attach to an interstate commerce shipment of intoxicating liquors quote whilst the merchandise was in transit under such shipment and until its arrival at the point of destination and delivery there to the consignee end quote thus under its power to regulate interstate commerce as involved in the transportation in original packages of ardent spirits from one state to another congress by the necessary effect of the act of 1890 made it impossible to transport such packages to places within a prohibitory state and their dispose of their contents by sale although it had been previously held that ardent spirits were recognized articles of commerce and until congress otherwise provided could be imported into a state and sold in the original packages despite the will of the state if at the time of the passage of the act of 1890 all the states had enacted liquor laws prohibiting the sale of intoxicating liquors within their respective limits then the act would necessarily have had the effect to exclude ardent spirits altogether from commerce among the states for no one would ship for purposes of sale packages containing such spirits to points within a state that forbade their sale at the time or place even in unbroken packages and in addition provided for the seizure and forfeiture of such packages so that we have in the rare case a recognition of the principle that the power of congress to regulate interstate commerce may sometimes be exerted with the effect of excluding particular articles from such commerce it is said however that if in order to suppress lotteries carried on through interstate commerce congress may exclude lottery tickets from such commerce that principle leads necessarily to the conclusion that congress may arbitrarily exclude from commerce among the states any article commodity or thing of whatever kind or nature or however useful or valuable which it may choose no matter with what motive to declare shall not be carried from one state to another it will be time enough to consider the constitutionality of such legislation when we must do so the present case does not require the court to declare the full extent of the power that congress may exercise in the regulation of commerce among the states we may however repeat in this connection what the court has here to force said that the power of congress to regulate commerce among the states although plenary cannot be deemed arbitrary since it is subject to such limitations or restrictions as are prescribed by the constitution this power therefore may not be exercised as to infringe rights secured or protected by that instrument it would not be difficult to imagine legislation that would be justly liable to such an objection as that stated and be hostile to the objects for the accomplishment of which congress was invested with the general power to regulate commerce among the several states but as often said the possible abuse of a power is not an argument against its existence there is probably no governmental power that may not be exerted to the injury of the public if what is done by congress is manifestly in excess of the powers granted to it then upon the courts will rest the duty of a judging that its action is neither legal nor binding upon the people but if what congress does is within the limits of its power and is simply unwise or injurious the remedy is that suggested by chief justice marshal in gibbons v agden when he said quote the wisdom and the discretion of congress their identity with the people and the influence which their constituents possess at elections are in this as in many other instances as that for example of declaring war the soul restraints on which they have relied to secure them from its abuse they are the restraints on which the people must often rely solely in all representative governments end quote the whole subject is too important and the questions suggested by its consideration are too difficult of solution to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under commerce clause we decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them that the carriage of such tickets by independent carriers from one state to another is therefore interstate commerce and that under its power to regulate commerce among the several states congress subject to limitations imposed by the constitution upon the exercise of the powers granted has plenary authority over such commerce and may prohibit the carriage of such tickets from state to state and that legislation to that end and of that character is not consistent with any limitation of restriction imposed upon the exercise of the powers granted to congress the judgment is affirmed end of section 16 recording by gretchen laboon