Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-28

defined, it Is supreme above the states; but
beyound 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 BUSH
ness with lottery, must therefore depend
on the laws of those states respectively.
Direct Legislation of n State.
II congress may dlsfavor one occupation
or business by withdra wing 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 matter relating to that
business. And what limit could be set by
this court to such an assumption of au-
thority2
But the statute in question is invalid, not
only for the reason that none of the powers
conferred upon congress were sufficient to
authorize it, but also because congress was
by an express restriction upon the exercise
of those powers, prohibited from making
such law. 1t is a law ''abrldging the free
dom of the press within the meaning of
the first amendment.
At this point Mr.. Carter reviewed at
length the history of English jurisprudence
on the liberty of the press, explaining its
evolution fromt the period when it was in ut
ter subjecton t6the state through its various
tlldlS dtkA NlClSALuuCS until IL ICdSLSu q
condition of unquestioned freedom. He
then took up the4nquiry as to whether the
statute Under consideration is a law abridg-
ing that freedom.t That such is its charac-
ter is vefy clear, be said.
That freedom, he continued, includes not
only the liberty ofsprinting, but the liberty
of publishing Tha former would be empty,
indeed, without the latter. And the liberty
of publishing must be co-extensive with the
liberty Of printing. And what is publishingl
1t is the communication to others of what
is printed IN other words, it is circulating.
Publishing and circulating admitted to be
synonymouk And what was the liberty of
publishing which existed at the time of the
adoption of ehe constitution 1t was the
liberty of ots&ulating printed matter in ali
practicable az permissible forms, of (which
that by mail vas. by far the prin cipal mode.
1t included letters, newspapers and packets.
The statute fbrbids the carriage by mail
of any newspaper, circular, pamphlet or
publication of any kind containing matter
concerning, it may be. thousand subjects,
if 1t also containH ''any advertisement of
any lottery or gin enterprise of any kind
offering prizes dependent upon any lot or
chance, or containing any list OF the prizes
awarded at the drawings of any such lot
terry or giftenterpr1se. Thus, no man can
circulate newspaper in any state except
upon condition that be consents to forego
the O6Q6nU 10 D6 QerlFSU dUy SuCu du-
vertisement, although
1t May be Entirely Legal
in such state Of course the conditions
any other. advertisements relating to any
business or subject; and thus the power is
directly asserted by this legislation of con-
gress to control the character of the whole
newspaper press for no one will pretend
that the publication of newspapers is posi-
BILE, on any large scale, if the beneht Of the
mail service is denied to them. If this
power exists, what stands in the way of ex
cludingnewspapers which contain matters
advocating the tariff or free trade, or the
doctrines or the candidates of particular
party
b And still further: The statute creates
censorship. Had it forbidden only the de-
sp0eiting in the mail of the matter described,
i Might be urged that every one was at
fber6yto make such deposit, subject to the
hazard Of being indicted and punished, and
therefore That there was no previous re-
straint. But the prohibition forbids the
postmaster from delivering any such news
paper, circular, sipamphlet or publication.
1t arrests publication, for it arrests the
communication 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
postmaster! This is perfect restoration
of the censorship. That, indeed, as for
smerly existing, was interposed stage
earlier. 1t forbade the printing until the
imprimatur was given. But this is inter-
posed before publication, which is the es
sence Of the censorship. 1t is previous re-
straint The Withholding of the tradatur
of the postmaster is as effective as the with
holding of the imprimatur of the censor.
One learned judge, startled by the sweep
ing scope of the language, which as clearly
Embraces the mailing of the prohibited
matter to lottery dealers, as by lottery
that congress could have intended
to punish man tor criminal offense who
had simply written a letter to lottery
dealer, even if it were to order ticket. and
has cut down the statute so as to limit its
prohibition to lottery dealers. UNITED
States vssClark, % Federal Reports, 70S.
If status embraces provisions, some Of
islative power, the former may be saved
ifsthey can be read separately from the
latter; but transportation cannot be effected
by heroic construction. Courts must IN
tie knots not cut them. SIT would certainly
be dangerous if the legislature could set a
net large enough to catch all possible
offenders. and leave it to the courts to step
inside and say who could rightfully be de-
tanned and who Should be set at large. This
would, to some extent, substitute the Judi
cial for the legislative department of the
" United States VS.. Reese,
ESS~S 221l
Congress Had No Direct Power What
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 se-Or
anything which tends to facilitate the COM
mission of facts which it has power under
the constitution to declare to be crimes and
punish as such-piracy and counterfeiting
the coin, for instance, is not questioned.
Hence it has the power to forbid the
mailing or delivery of obscene books or pict-
ures. The publication or circulation of
these was perfectly well known offence at
common law.
There are, as there were at the time of
the adoption of the constitution, two
methods by which printed matter might be
circulated; one public and the other private
The former was the principal one upon
which the whole public mainly relied. 1t
was constant, regular, abundant and sure;
and, moreover, it had the capacity by law
of excluding the other from the field, if not
absolutely, at least for the most part, and
of thus increasing its own efficiency. There
was, and is, similar, if not as great diff
ference between the methods as between
the sending of merchandise by railroad and
by private conveyance. This principal
method of circulation is denied to certain
printed matter, and yet it is declared that
the freedom of circulation is not abridged!
1t is quite evident that this conclusion
nrocepdS 1Ipcn the yiew-it ran stand ,Ipou