taken were it not for the protection and influence of insurance.” (Department of Commerce and Labor: Organization and Law, p. 589.)

"It has only been within the past forty years that the public recognition of the value of life insurance has been such as to raise this business to a position in which it not only plays an important part in social problems, but also affects the financial life of the nation." (Observations on Insurance History, by John M. Holcombe, Yale Insurance Course, 1903.)

Life insurance policies, unlike the contracts of fire companies, have taken as many diverse forms as the ingenuity of man can devise, and life policies aggregating billions of dollars are now in force which serve not only as protection to the families of the insured, but which may be used as collateral in the hands of the insured upon which loans may be effected either from the insurance companies or from banks. They have an absolute cash value, and the transmission of such contracts is just as much commerce as the transmission of bills of lading, lottery tickets or other paper evidences of the existence of property. In Almy vs. California, 24 How. 169, a stamp duty on a bill of lading was held unconstitutional, and in Woodruff vs. Parham, 8 Wall. 123, that decision was placed upon the ground that the tax was void as a regulation of commerce. In the Lottery Cases (Champion vs. Ames, 188 U. S. 321), the carriage of lottery tickets from one state to another by an express company engaged in carrying packages from state to state is held inter

state commerce.

Some policies are, in fact, promises to pay a certain amount of money at a fixed time, conditioned only upon the payment of the stipulated premium. The time of payment may be shortened by the death of the insured. In addition to this they possess cash surrender values. Life insurance companies issuing policies of endowment insurance are in effect savings banks. Employers' liability and casualty insurance has developed. into a necessary adjunct of all commercial and manufacturing

enterprises. The undertaking is to indemnify the insured against claims for damages from common law and statutory liability in the various places where the business of the insured. is conducted. Policies of this character are not infrequently written at Boston, New York and Baltimore to cover locations in half a dozen or more states. Every such transaction is in its essence commercial intercourse among the people of the several states.

Insurance in its various forms is then as vital to the commercial life of the country as either transportation, the telegraph, the telephone or electricity in any of its uses. "What

is an article of commerce is determinable by the usages of the commercial world." (Per Justice Field in Bowman vs. Railway Co., 125 U. S. 465, 501.) The issuance of policies in exchange for premiums does not, however, constitute the business of an insurance company any more than the wrapping paper on a parcel of merchandise constitutes the business of the merchant who sells the goods. But what is contemplated by the contract, regardless of how or where it is executed, ist the substance of the insurance transaction, just as the sale and purchase of the contents of the parcel is in the other transaction. In other words, the insurance is wrapped in the policy. Or, to state it still another way, the policy is merely the evidence of the contract.

Insurance was originally commerce, and the first legislation upon the subject recognized it as such:

"Whereas, it ever hath been the policy of this realm by all good means to comfort and encourage the merchant, thereby to advance and increase the general wealth of the realm, Her Majesty's customs, and the strength of shipping." (Stat. 43 Eliz. C. 12 [1601])

The original theory of protecting capital subject to the risks of maritime commerce was that it was a proper encouragement of trade to provide that merchants in case of adverse fortune could save not only their original investment, but their anticipated profits, and that men of small fortunes should be encour

aged to engage in commerce by giving them the means of preserving their capital entire. (Barclay vs. Cousins, 2 East 544, King's Bench, 1802.) By the statute of Elizabeth, a court of commissioners largely composed of "grave and discreet merchants" was created to take away from the law courts the disposition of causes arising upon contracts of insurance. And this continued to be the law.

"In what cases and how far insurers should be liable is covered chiefly by the customs of merchants, and some at least of that profession are usually empaneled on the jury to try these suits." (Wooddesson, Lectures on the Law of England, vol. iii, p. 53, et seq.)

The law merchant was originally a branch of international law. This system of law "has been admitted to decide controversies concerning bills of exchange, policies of insurance and other mercantile transactions, both where citizens of different states and citizens of the same state only have been interested in the event." (1 James Wilson's Works, 335.)

Alexander Hamilton, in his famous opinion upon the constitutionality of the proposed United States bank, objected to the enumeration by the Attorney-General of the particulars which he, the Attorney-General, supposed to be comprehended "under the several heads of the powers to lay and collect taxes, etc.; to borrow money on the credit of the United States; to regulate commerce with sovereign nations between the states," etc.; and among other items which, according to Hamilton, were omitted from the enumeration by the AttorneyGeneral of the heads of the power to regulate commerce with foreign nations are:

"3. The regulation of policies of insurance.

4. The regulation of pilots.

5. The regulation of bills of exchange drawn by a merchant of one state upon a merchant of another state.

This last rather belongs to the regulation of trade between the states, but is equally omitted in the specification under that head." (3 Hamilton's Works, Lodge's ed., p. 203.)

Hamilton also, in that same opinion (ibid. 222), said:

"In all questions of this nature the practice of mankind ought to have great weight against the theories of individuals. The fact, for instance, that all the principal commercial nations have made use of trading corporations or companies for the purpose of external commerce is a satisfactory proof that the establishment of them is an incident to the regulation of the commerce.'

This was said with reference to the creation of a United States bank, but the observation applies with great force to the business of insurance.

In view of the fact that in England insurance is regulated by the Board of Trade; in France, by the Minister of Commerce; in Norway, by the Commercial Registrar; in Austria, by the Tribunal of Commerce; and in the German Empire by the central government, it is fair to affirm that insurance is commerce and has from the beginning been treated as such except in the cases in which the question has been incidentally discussed by the Supreme Court of the United States. It is, however, significant that the majority opinion in the Lottery Cases makes no reference whatever to the line of cases known as the Insurance Cases; and the reasonable deduction from this is that their authority has been weakened.

It seems to have been overlooked that insurance has been adjudged trade with the enemy. (New York Life Ins. Co. vs. Statham, 93 U. S. 24; New York Life Ins. Co. vs. Davis, 95 U. S. 425.) In the Davis case Mr. Justice Bradley said:

"That war suspends all commercial intercourse between the citizens of two belligerent countries or states, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years that any further discussion of that proposition will be out of place. As a consequence of this fundamental proposition, it must follow that no active business can be maintained either personally or by correspondence, or through an agent by the citizens of one belligerent with the citizens of the other."

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Twice in the few lines quoted, is life insurance characterized as commerce; once as commercial intercourse" and once as "active business."

The Supreme Court of Iowa in Beechley vs. Mulville, 102 Ia. 602, 70 N. W. 107, in a suit for damages based upon a conspiracy to destroy the plaintiff's business as an insurance agent, said:

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"Insurance is a commodity. Commodity' is defined to be that which affords advantage or profit. Mr. Anderson, in his law dictionary, defines the word as 'convenience, privilege, profit, gain; popularly, goods, wares, merchandise.'

It is common to speak of 'selling insurance.' It is a term used in insurance business, and law writers have, to quite an extent, adopted it."

For convenient reference, a number of the judicial definitions of commerce are collected in an appendix to this report. The commerce clause gives to Congress the power "to regulate commerce with foreign nations and among the several states and with the Indian tribes." The term "interstate," as applied to the commerce among the states, is an arbitrary expression which has come into general use to describe such commerce. It is hardly as comprehensive a term as the word used in the Constitution. Interstate commerce in the United States is defined to be "commercial transactions and intercourse between persons resident in different states of the union or carried on by lines of transport extending into more than one state." (Century Dictionary: Commerce.)

Chief Justice Marshall thus defined the phrase:

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"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." (Gibbons vs. Ogden, 9 Wheat. 1.) Commerce, therefore, is of two kinds. First, the commerce the states; second, that commerce which is exclusively

among