New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1891-07-08

against Dy that instrument Imam the uOtlOu
that the states had parted with any OF their
governmental rights over the conduct of
their own citizens upon their own soil, ex.
cepr in respect to such concerns as We're ex-
pressly intrusted to the federal government.
| In respect to all rights other than those
thus excepted, that government was to be
as absolutely powerless as If it were for
eign state To borrow the language OF Mr..
Chief Justice Waite in the United States vs.
Cruikshank (e2 u. S. 42, 500: 'Within the
scope OF its powers, as enumerated ana oe-
| fined, it is supreme above the states; Dut
beyond. it has no existence.
Whether citizen Of Louisiana, or OF
| Maine, may carry on the lottery business,
or do any act in the transaction OF any
business with lottery, must there ore
| depend on the laws Of those states respect
lively. &c.,.
DIRECT LEGISLATION OF STATE.
If congress may disfavor one occupation
or business by Withdrawing from it the
benefit OF the mails, it may another.
Should those who favor the prohibition of
the sale of intoxicating drinks obtain
majority in the national councils-and,
perhaps, that is now within their power
they may forbid the carriage of mail mat
ter relating 10 that business. And what
limit could be set by this court to such an
| assumption of authority? =
But the statute in question is invalid not
| only Tor the reason that none OF the powers
| conferred upon congress were sufficient 10
authorize 1t, but also because congress was
by an express restriction upon the exercise
Of those powers, prohibited from making
such! law. II is law "abridging the
| freedom of the press within the meaning
OF the first amendment.
At this point Mr.. Carter reviewed at
length the history of English jurisprudence
on tbs liberty Of the press explaining its
evolution from the period when it was in
utter subsection to the state through its
various trials and vicissitudes until it
reached a condition OF unquestioned tree
DOM, He then took up the inquiry as to
whether the statute under consideration is
law abridglng that freedom. That such
is its character is very clear, be said.
That freedom, he continued, includes not
only the liberty OF printing but the liberty
OF publishing. The former would be
empty, indeed, without the latter. And
the liberty OF publishing must be cock
what is publishing? 1t is the communion
ton to others of what is printed; in other
words, it is circulating. Publishing and
circulating are admitted to be synonymous.
And what was the liberty OF publishing
| which existed at the time Of the adoption
Of the constitution? 1t was the liberty OF
circulating printed matter in all prac-
ticable and permissible forms, of which
that by mail was by far the principal mode.
1t included letters, newspapers and packets.
The statute iorbids the carriage by mail
OF any newspaper, circular pamphlet or
| publication OF any kind containing matter
concerning. 1t may be, a thousand subjects,
it it also contains any "advcrtisem ent 0 any
lottery or gift enterprise of any kind offer
ing prizes dependent upon any lot or chance
or containing any list OF the prizes award
ed at the drawings OF any such lottery or
gift ENTERPRISE Thus, no man can crcu-
late newspaper in any state except upon
condition that he consents to forego the
benefit to be derived from any such adver-
tisement, although
IT May BE ENTIRELY LEGAL
in such state. OF course the conditions
may, ii this be allowed, be extended to any
other advertisement relating to any bust
ness or subject; and thus the power is direct
| ly asserted by this LEGISLATION of congress to
control the character of the whole newspa-
per press; for no one will pretend that the
publication Of newspapers is possible, on
any large scale, it the benefit OF the mail
service is denied to them. If this power
exists, what stands in the way OF excluding
newspapers which contain matters advoca-
ting the tariff or free trade, or the doctrines,
or the candidates OF a particular party?
And still further: The statute creates a
censorship. Had it forbidden only the de-
posting in the mail Of the matter described,
it might be urged that every one was at lib
erty to make such deposit, subject TO the
hazard OF being indicted and punished,
and, therefore, that there was no previous
restraint. But the prohibition forbids the
postmaster from delivering any such news
paper, circular, pamphlet or publication.
1t arrests publication. Tor it arrests the COM
munication of the matter TO the public, or
to those for whom it is intended. And
| whether publication should be thus ar
rested is submitted to the judgment OF a
postmaster This is perfect restoration OF
the censorship. That, indeed, as formerly
existing, was interposed stage earlier. It
forbade the printing until the imprimatur
was given. But this Is interposed before
publication, which is the essence OF the CEN
sorship. II is previous restraint. The with
| holding OF the tradatur OF the postmaster is
as effective as the withholding OF the inl-
primatur Of the censor.
One learned judge. startled by the sweep
ing scope OF the language, which as clearly
matter to lottery dealers as by lottery deal
ers, has declared it incredible that congress
could have intended TO punish a man for a
criminal offense who had simply written a
letter to a lottery dealer, even if it were to
order ticket, and has cut down the statute
so as to limit its prohibitions to lottery
dealers. Omitted States vs.. Clark, % Fed
eral Reports, 1857 II statute embraces
provisions, some of which are within and
some beyond the legislative power, the
former may be saved it they can be read
separately rom the latter; but the separa-
|
ton. Courts must unite knots, not cut
them. 1T would certainly be dangerous il
the legislature could set net large enough
to catch all possible offenders, and leave i,
to the courts to step inside and say who
could risht'ully be detained and who
should be set at large. This would, to some
extent substitute the judicial for the legis-
iative department OF the government p
Omitted States vs. Reese, 80 q. S., 214 221. J
CONGRESS HAD NO DIRECT POWER WHATEVER.
That congress has power to exclude from
the mail any publication or letter tending
to promote murder. arson, burglary, lar
ceny-anything which is nahum in Scr
anything which tends to facilitate the COM
mission of acts which it has power under
the constitution to declare to be crimes and
punish as. such-piracy, and counterfeitine
the coin, for instance, is not questioned
Hence it has the power to forbid the
mailing or delivery of obscene books OF
pictures. The publication or circulation Of
these was a perfectly we'll known otfense to
common law.
There are, as there were at the time of the
adoption of the constitution, two method
~