The morning news., 1891-11-18
FIGHT OF THE LOTTERY.
THE ARGUMENT IN THE NEwSPA-
PER CASES RESUMED.

PER CASES RESUMED.
Mr.. Carter Makes a Distinction Be
tween Things Mala in Sc and Mala
Prohibita-The English Postal Laws
on Obscene Literature-An Invasion
of the Freedom Of the Press.
WASHINGTON, Nov. Il. The argument
of the anti-lottery cases was resumed in the
United States supreme court to-day by J.
c. Carter of New York. who made the
point that there was difference between
things mdld in Sc, or which all
conceded to be crimes, and things
saaIa prohibita, which legislatures might
declare to be offenses Congress might do
all in It's power to disfavor these things con-
ceded to be crimes at the adoption OF the
constitution, but it was for the states to
pass upon the other class in the exercise Of
their police powers.
CLASHES WITH THE STATES.
1t was not possible that under our form of
government the federal government should,
in the exercise of police power, declare
thing TO be an offense which the state said
was not, and thus bring about conflict OF
police powers. The slave states would
never have agreed to such an invasion OF
their police powers and have left it to con-
gress to come within their borders and seek
TO suppress or disfavor slavery.
Justice Gray What should you say If
all the states by law prohibited lotteriesl
Mr.. Carter-I should still think congress
was not at liberty to disfavor them unless
that prohibition had lasted for a generation
and all hope Of the lotteries being renewed
had gone. / would admit that there might
be an advancement Of the doctrine OF mdld
inSe.
Justice Brown-How much concensus of
opinion would you require9
Mr.. Carter-Universal, universal; as long
as single state is opposed you cannot pass
such law.
OBSCENE MAIL MATTER.
Justice Harlan made an inquiry as to
what Mr.. Carter had 10 say about the regu-
lation Of obscene mail matter, and what IL
lotteries were made a crime
Mr.. Carter, insresponse, said IL must have
been agreed at the time OF the adoption OF
the constitution that obscene matter should
be prevented from carriage through the
mails. Polygamy, ETC., would turn upon
whether the practice was 30 clearly stamped
as criminal in the laws or usages that there
was an universal agreement TO stigmatize it
as crime.
ENGLAND's POSTAL LAWS.
Justice Bradley called attention to the
fact that in England from the laws and
history of which country Mr.. Carter had
quoted, there was nothing to prevent the
carriage of any mail matter whatever, aud
asked: "If there be no example in that in
stitution in England where do you get the
right Of the postal requirements In this
country to prohibit the mailing of matter
q1ldtG IN Sc, and distinguishing it from
matters Indifferent
Mr.. Carter said he got the power from
the sovereign power Of the government in
the implied assent OF the people that they
might use it where it did not come in con-
fict with the police power Of the state
FREEDOM OF THE PRESS.
Mr.. Carter then addressed himself to the
proposition that the law was an invasion of
the freedom of the press. The freedom did
not imply the right to publish sedition or
immortality. What was meant was meas
ure of freedom subject to the restrictions
understood to exist at the time Of the adop-
tion Of the constitution. In al other mat
ters, except lotteries the jury was the deter
mining element as to whether a matter was
hbellous but here there was nothing left for
jury except that the matter was a lottery
advertisement and had been deposited in the
mails. Obscene matter was nldLd in Sc un>
der the common law, but still it was left for
a jury to say whether it was obscene. In
the present case the question whether the
matter was hostile to the government or
immoral was taken from the jury.
NO TELLING WHERE IT WOULD STOP
Where would a stop be made if this step
be takenf Might not bucket shot or intoxi-
eating liquor advertisements be deprived of
mail facilities. Abridging circulation and
preventing the ordinary mode of distribu-
ting newspapers was abridging the freedom
OF the press. This step once taken aud al
lowed to succeed, there would be no such
thing as freedom of the press, and
newspapers would be prostate at the mercy
OF congressional legislation, and congress
might prevent the mailing OF protection or
free trade articles. He then went into the
provisions OF the anti-lottery act at consid-
cradle length and the power given to re-
fuse delivery OF letters addressed to lottery
agents.
THE ATTORNEY GENERAL CLOSES.
Attorney General Miller, In closing for the
government. paid high compliments to the
skill and ability of Mr.. Carter whose argu.
ment he had listened to with unalloyed pleas-
ure, but confessed that it seonsd ludicrous
to him that the greatest lawyer at the
American bar should for two hours, and an
parently without consciousness Of ths fact
that he was trying to get away from the
not in it and which were purely
imaginary. The only section OF the
lottery act in this case was the first section.
forbidding the mailing of lottery advertise
ments. 1t was not question of suppressing
UT ulsIaVorln2 LOTTERIES In his opinion oon-
Rress had the power to disfavor them. but
he thought all that this law said to Louisi-
ana was: I'VE will not help you in carry.
ing on the lottery business by nabling you
through the mails, TO spread this Infection
through - the other states Of the uHion.n
SLAVERY NOT TO BE COMPARED.
The difference between this case and
slavery was that slavery in the slave states
had recognized constitutional guarant ee.
But even there there was distinction be-
tween combining 1t to the states whore 1t
existed and introducing it into other states.
Suppose congress, in the case of yellow
fever In Louisiana, policed the
mails, not to protect the mail
agents, but the people. Would
it be said that they were usurping Louisi-
ana's police powers and unla wfully seeking
to disfavor Louisiana's yellow fever. He
maintained that there was no warrant of
law for this doctrine of difference between
naotd IN Sc and mGtd prohfbitd, and that
things under one head might be excluded
and the other not excluded.
ANOTHER DIFFERENCE.
Continuing, he contended that there was
distinction between excluding from the
mails and forbidding publication Con-
gress had full power over the mails and
might refuse its privileges to newspapers
without interfering with the freedom oi