The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1891-07-02
impede, any business

to break up, or impede, any business
or employment.
What power did congress really exer-
else when exacting this exclusion? NOT
certainly power for regulating the
mail service in order to make that
service practicable, convenient and
efficient.
The real power which congress at
tempted to exercise was to hamper
and impede. and, if possible, TO de-
stroy, the lottery business, in order to
protect the people of the I'm ted States
from the assumed demoraizing and
dangerous tendency of lotteries. In
asmuch as no one pretends that con-
gress may pass law directly suppress
ing lotteries on the ground that they
have an immoral tendency or, indeed,
on any ground whatever, the question
is whether it can pass law, not di-
rectly SURPRISING them by declaring
them to be crimes, but harr&ssing and
obstructing them by withdrawing rom
them facilities which are under its
control, for no other reason than that
it deems them crimes which it would
suppress if it had the power.
This questiC n must be promptly an
swered in the negative, for the power
thus attempted to be exercised is a
power to suppress lotteries and that
alone. No such power can be derived
from any express language i'll the con-
stitution, nor by any just implication
from any language in it. More than
this, the possession of any such
power by congress is utterly inconsis.
tent with the whole theory of the
Constitutional Relations
between the general government and
the states.
Nothing is clearer than that the
carrying on of lottery, or the dealing
in the lottery business, or with a lot
terry, is, in every instance, an act done
within a state and the power to declare
such an act crime, or to punish them
as such, or to obstruct or impede them
because they are crimes, is lodged ex-
clusively with the state governments.
o. Y possessed this power before the
d,riiu of the constitution. They
did not part with it by that adoption.
Indeed, nothing was more sedulously
guarded against by that instrument
than the notion that the states had
parted with any of their governmental
rights over the conduct of their own
citizens upon their own soil, except in
respect to such concerns as we're ex.
pressly intrusted to the federal govern
ment.
In respect to all rights other than
those thus except ted, that
government was to be as abso
lutely powerless as if it were a foreign
state. To borrow the language of Mr..
Chief Justice Waite, in the United
States VS.. Cruikshank (92 U. s., 542,
550: "Within the scope of its powers,
as enumerated and defired, it is SUI
preme above the states; but beyond, it
has no existence"
Whether a citizen of Louisiana, or of
Maine, may carry on the lottery bust
ness, or do any act in the transaction
of any business with lottery, must
therefore depend on the laws of those
states respectively.
Direct Legislation Of State.
If congress may disfavor one occupa-
tion 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 a majority in the ma
tional councils-and. perhaps, that is
now within their powar-they may
forbid the carriage of mail matter rela-
ting to that business. And what limit
could be set by this court to such an
assumption of authority?
But the statute in question is iHva-
lid, 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 re-
striction upon the exercise of those
powers, prohibited from making such
a law. tits law ''abridging 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 juris
prudence on the liberty of the press,
It's evolution from the
period when it was in vi ter subsection
to the state through its various trials
and vicissitudes until it reached con.
1ition of unquestIoned freedom. He
then took up the inquiry as to whether
the statute under consideration is a
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
after. And the liberty of publishing
must be CO extensive with the liberty
If printing. And what is publishing?
It is the communication to others of
what is printed-in other words, it is
circulating. Publishing aud circula-
ing are admitted to be Synonymous.
And what was the liberty of publish
ng which existed at the time of the
ldoption of the constitutions 1t was
he liberty of circulating printed
natter in all practicable and permits,
ible forms. of which that by mail was
~ far the principal mode. 1t in
luded letters, newspapers and packets.
The statutes forbids the carriage by
nail of any newspaper, circular pam
,hlet or publication of any kind con-
aiming matter concerning, it may be
thousand subjects if it also contains
ANY advertisement of any lottery or
lift enterprises OF any kind Offering
,rizes dependent upon any lot or
nance, or containing any list of the
,rizes awarded at the drawings of any
UGH lottery or gift enterprise Thus, |