Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-07-02

| by an express restriction upon the exercise
| Of those powers, prohibited from making
| such law. Il is law 'tabrldging 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 from the period when it was ia ut
Ter subjecton TO the state through its various
trials and vicissitudes until it reached a
condition of unquestioned freedom. He
then took up the inquiry as to whether the
statute under consideration is a law abridg-
ing that freedom. That such is its charac-
ter is very clear, he 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 co-eXtensive with the
liberty of printing. And what is ppblishingl
III Is the communication to others OF what
IS printed in other words, it is circulating.
Publishing and circulating admitted 20 be
synonymous. And what was the liberty of
publishing which existed at the time of the
adoption OF the constitution It was the
liberty OF circulating printed matter in all
practicable and permissible forms, ofwhich
that by mail was by far the principal mode
II included letters, newspapers and packess9
The statute forbids the carriage by Iii
OF any newspaper, circular, pamphf& or
publication of any kind containinsSinatter
concerning, 1t may be, thousaHFs subjects,
II 1t also contains ''any advertisement of
any lottery or gift enterpriSSPof any kind
Offering prizes experimentation any lot or
chance, or containing ~ list of the prizes
awarded at the draYss of any such lot
terry or gift enterln6 e." Thus, no man can
circulate newS5kper in any state except
upon conditioN1hat he consents to forego
the benefit DE derived from any such ad-
yertisemaT although
80 May he Entirely Legal
in syG state. OF course the conditions
n.y. if this may be allowed, be extended to
~ other advertisement relating to any
fbusinesS or subject; and thus the power is
kdirectly asserted by this legislation of CON
Nress to control the character of the whole
Newspaper press; for no one will pretend
tina the publication of newspapers is posi-
bic, any large scale, if the benefit of the
mail s&vice is denied to them. If this
power dkjStS, what stands in the way of ex-
Guiding newspapers which contain matters
advocatinAahe tariff or free trade, or the
doctrines dSehe candidates Of particular
party,
And still furaA her: The statute creates a
censorship. Han BIT forbidden only the de-
posting in the MAJ pf the matter described,
ii might De urged lat every one was at
liberty to make suchSeposit, subject to the
hazard of being indictSand punished, and
therefore that there waA no previous re-
straint. But the prohibfasn forbids the
postmaster from delivering nay such news
paper, circular. pamphlet disqualification
II arrests publication, for il irrests the
communication of the matter TO the public
on TO those for whom il is intended And
whether publication should be thus ar
rested is submitted to the Judgment of a
postmaster! This is a perfect restoration
of the censorship. That, indeed, as for
merly existing, was interposed 4 stage
earlier II forbade the printing until the
imprimatur was given. But this is inter-
posed before publication, which is the es-
sence of the censorship. It 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
dealers, has declared it Incredible
that congress could have intended
TO punish man tor criminal offense who
had simply written letBr TO lottery
dealer. even If it were 10 oriera ticket, and
has cut down the statute no as to limit its
prohibition TO lotterMSdealers United
States vs,}Clark - Federal Reporps los. 1
If statute embraceSsprovisionS Some of
which are within Que some beyond the leg
islative power, the former may be saved-4
latter but the separation cannot be effected
by heroic CONSTRUCTION, Courts must IN
lie knots, not cut them. sit would efrtainlyj
be dangerous if the legislature Gould set a |
net large enough to catch all possible |
offenders. and leave it to the courts to step |
inside and say who could rightfully besie- |
tanned aud who should be sot at large. This |
would, to some extent, substitute the5udi- |
cial for the legislative departmentSbf the |
government" United States VS. Reese. |
% L. S, PA, 22l.
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 mdium in ss-or !
anything which tends to facilitate the con- |
mission of acts which it has power under |
the constitution to declare 10 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
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. a similar, If not as great a 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
proceeds upon the view-it can stand upon
no other-that the freedom of circulating,
admitted to be tantamount to freedom of |
is not abridged so long as the
.itizen has the right to circulate printed
natter in any private manner which he
llone, or with the assistance Of others, may
.cntrive, and has reference only TO the
right TO circulate, and no reference to any
right to enjoy the usual public means of
circulating which his fellowcitiZens enjoy,
and for which he is taxed and made TO pay
in common with them.
Against this view it seems TO US more IN
accordance with sense and reason to say
that the emphatic declaration OF the coGsti-
luton made to forever preserve the
Principal Safeguard of Liberty,
That congress should nob pass any law
anrldelng tho freedom OF the press, is
Vloia'ed by any law which takes away any
Of lhe ordinary methods of circulating
printed matter
1here are two principal questions in this