The possible application of the doctrine laid down in the Lottery Case is excellently exemplified in an attempt that has been made, relying upon it, to support the constitutionality of a federal law excluding from interstate commerce articles to the production of which child labor has contributed. The enactment of a bill to the effect has been especially championed in the United States Senate by Mr. Beveridge of Indiana.

This proposed law provides that, under heavy penalties, " no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine in which children under fourteen years of age are employed or permitted to work, which products are offered to said interstate carriers by the firm, person, or corporation operating said factory or mine, or any officer or agent, or servant, thereof for transportation into any other State or Territory than the one in which said factory or mine is located."

8 See ante, Section 27.

There has been no concealment, and, indeed, the bill bears sufficient evidence upon its face, of the fact that the purpose of the law is rather a regulation of the manner in which certain goods are manufactured or produced, than of their transportation across state lines. The bill is thus a police measure in exactly the same sense that the Pure Food and Lottery Acts are. But there is a difference between it and them - a difference which possibly will be held controlling. Lottery.tickets are, in themselves, the contracts of an undertaking which is very generally regarded as a morally and economically harmful one, and impure foods are, in themselves, harmful to those receiving and consuming them. After the process of manufacture is completed, harm is, therefore, done by the transportation and use of impure foods and lottery tickets, and it is, therefore, arguable that a law prohibiting or regulating their transportation as articles of interstate commerce is a legitimate exercise of the power granted to the General Government to regulate commerce among the States; that is, is an exercise of that power for the advantage of the citizens of the several States.

As to articles manufactured or produced in factories or mines employing children under fourteen years of age, however, the foregoing does not hold true. Whatever injury is done by the employment of children in factories or mines is done when the articles are in process of manufacture or production, and over this manufacturing or mining the Federal Government has, under the Commerce Clause, no control whatever. Except possibly in the rarest instances, goods produced in factories or mines employing children do not differ in character from those produced in factories or mines not employing such labor. Once produced there is, therefore, no harm done to anyone, whether by way of deceit or injury to the health, by the sale and consumption of these goods so produced. There cannot, therefore, be any valid argument as to the constitutionality of the proposed 'Child Labor Law upon the ground that it is a legitimate exercise of a federal power to regulate interstate commerce, unless, indeed, one is willing to take the further step of saying that Congress has the arbitrary power to exclude from interstate commerce any commodity that it chooses independently of whether its transmission or transportation is attended by danger, or its sale by unavoidable opportunity for fraud, or its use and consumption followed by moral or physical evils. Or, if admitted to interstate commerce, that Congress may attach, as conditions precedent thereto, any requirements of production that it may see fit to impose. To grant this last is, of course, to break down entirely the distinction between the manufacture of and the interstate trade in commodities, and thus to bring within possible federal control the entire manufacturing interests of the country.

It is plain, from what has been said, that the enactment of a measure of the character of the Child Labor Bill introduced in the Senate by Mr. Beveridge would be an attempt upon the part of the Federal Government to regulate a matter reserved to the control of the States. Should the measure be limited in its operations to goods imported from foreign countries it would not, to be sure, be open to this objection, but it would still be open to the criticism that it would not be, in any sense, a regulation of com-merce, and therefore, if valid, the constitutional source of the power of Congress to enact it would have to be sought elsewhere than in the Commerce Clause.

The cases in which it has been held that the Federal Government has a full discretionary power to exclude articles from the mails cannot be used to support, by analogy, a similar power over interstate commerce. For, by the Constitution, Congress is given the exclusive power to establish post-offices or post-roads. The maintenance of a postal service is thus a subject over which the States have no authority. Interstate commerce is, however, a matter which is not established by the Federal Government. Its regulation, and not its creation, by the Federal Government, is provided for by the Constitution. The distinction between the powers of the United States with reference to interstate commerce and those arising out of its power to establish post-offices and post-roads is recognized in the leading case of In re Jackson9 in which court say: "We do not think that Congress possesses the power to prevent the transportation in other ways as merchandise of matter which it excludes from the mails. To give efficiency to its regulations and to prevent rival postal systems, it may perhaps prohibit the carriage by others for hire, over postal routes of articles which legitimately constitute mail matter in the 8ense in which those laws were used when the Constitution was adopted - consisting of letters and newspapers and pamphlets when not sent as merchandise - but further than this, its powers of prohibition cannot extend."