The morning news. [volume] (Savannah, Ga.) 1887-1900, 1891-06-19


nneo, 1t is supreme above the states; but
beyond, 1t has no existence"
Whether a citizen of Louisiana or of
Malne may carry on the lottery business,
or do any act in the transaction Of any
business with lottery, must therefore de-
pend on the laws Of those states respect
lively.
DIRECT LEGISLATION OF STATE.
II 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 q 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 author
ityl
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. It is g law ''aDridging 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 the 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 condition of unquestioned free
dom: He then took up the inquiry as to
whether the statute under consideration isa
law abridging that freedom. That such Is
Its character 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 most be c1-extensive with the
liberty of printing. And what is publish
lngs It is the communication to others of
what is printed; in other words, it is circu-
lating. Publishing and circulating are ad-
mltted 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 mat
ter in all practicable and permissible forms,
OF which that by mail was by far the prin-
cipal mode. 1t included letters, new spapers
and packets
The statute forbids the carriage by mail
of any newspaper, circular, pamphlet or
publication Of any kind containing matter
concerning, it may be, a thousand subjects,
If it also contains "any advertisement of
any lottery or gift 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 gift enterprise Thus, no man
can circulate newspaper in any state ex-
cept upon condition that he consents to
forego the benefit derived from any such
advertisement, although
1T MAY BE ENTIRELY LEGAL
In such state. OF course the conditions
may if this may be allowed, be extended to
any other advertisement relating to any
business or subject, aud 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-
bic, on any large scale, if the benefit of the
mail service is denied to them. II this
power exists, what stands in the way of ex-
Guiding newspapers which contain matters
advocating the tariff or free trade, or the
doctrines, or the candidates of q particular
partyi
And still further: The statute creates a
censorship. Had 10 forbidden only the de-
posting in the mail of the matter described,
it might be urged that every one was at
liberty to 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
newspaper, circular, pamphlet or pub
location. 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 arrested is sub
mitted to the Judgment of postmaster!
This is a perfect restoration Of the censor
ship. That, indeed. as formerly existing,
was interposed stage earlier. 1t forbade
the printing until the imprimatur was given.
But this is interposed before publication,
which is the essence of the censorship. 1t is
previous restraint. The Withholding Of the
tradatur of the postmaster is as effective as
the Withholding 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 deal
ers. has declared it incredible that congress
could have intended to punish man for
criminal offense who had simply written
letter to lottery dealer, even If it were to
order ticket, and has cut down the statute
so as to limit its prohibitions to lottery
dealers. United States VS.. Clark, % Federal
Reports, 70S) If q statute embraces provts-
ions some of which are within and some
beyond the legislative power, the former
may be saved if they can beread separately
from the latter; but the separation cannot
must unite knots, not cut them. ut would
certainly be dangerous if the legislature
could set a net large enough to catch all
possible offenders and leave 1t to the courts
to step inside and say who could rightfully
be detained and who should be set at large.
This would to some extent substitute the
judicial for the legislative department Of
government" UNITED States VS.. Reese, 30
q. s., ga, 221.l
CONGRESS HAD NO DIRECT POWER WHAT
EVER.
That congress has power to exclude from
the mail any publication or letter tending
TO promote murder, arson, burglary,
Iarceny-anything which is NAHUM IN Sc
or ANYTHING which tends to facilitate the
commission of acts which it has power un-
der the constitution to declare to be crimes,
and punish as such-piracy, and COUNTER
feiting the coin, for instance, is not ques-
toned.
Hence, it has the power to forbid the
mailing or delivery Of obscene books or
pictures. The publication or circulation of
these was perfectly well-known offense at
common law.
There are, as there were at the time of
the adoption of the constitution, two meth
dds by which printed matter might be cir
culated: 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, II not as great, diff