The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-09-23

of those powers, prohibited from making
such n law. Its a law "abrdging the Tree
dom of the press" within the me aa!nS OF the
first amendment.
At this point Mr.. Carter reviewed at
length the his DRY nf English Jurisprudence
on the liberty Of the press, explaining us
evolution from the period when IL was IN
utter subsection to the state through lis
various trials and vicSSitudeS until 1t reached
a condition of unQuesti0ned freedom. lie
then took up the inquiry as to whether inc
statute under consideration is law abridg-
ing 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 must be coextensive with the
liberty of printing. And what is publish
ing? It is the commuaic ton to others oil
what is printed; in other words, it Is clrcu-
latine. Publishing and circulating are ad-
mitted TO be synonymous. And what was
the liberty of publishing which existed AT
the time of the adoption of the ConstItu-
ton? 1t was the liberty of circulating
printed matter in all practicable and per-
missible forms, of which that by mail was
by FAR the principal mode. 1t included let
tiers, newspapers and packets.
The statute forbids the carriage BY mail
OF any newspaper, circular, pamphlet or
publication of any kind containing matter
concerning ii may be Il thousand subjects,
if it also contains "any advert;s ement OF
any lottery or gift enterprise of any kind
Offering prizes dependent upon any lot or
chance. Ut 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 except
upon condition that he consents to forego
the benefit to be derived from any such ad-
vertisement, although
1T MAY RE ENTIRELY JEGAJ
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, and titus 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, ii the benefit OF the
mail service is denied 10 them. If 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 any particu-
lar party?
And still further: The statute creates a
censorship. Had it forbidden only he de-
posting in the mail of the matter described,
it might be urged that every one was at lib
eTty 10 make such deposit subject to the
hazard OF being indicted and punished, and,
therefore, that there was no previous re-
strain. But the prohibition forbids the Post
master from delivering any such newspa-
per. circular, pamphlet or publication. 1t
arrests publication, for it arrests the CON-
municatiOn of the matter to the public, or
to those for whom it is intended. And
whether publication should be thus arrested
is submitted to the judgment of PGStmas-
teri This Is a perfect restoration OF the
censorship. That, indeed, as formerly eX-
lsUiug, was inteTpnSed a stage earlier IL
forbade the printing until the mprimatur
INT tins intarnOSan bpforp
publication, which Is the essence Of the cen
SorShIp IL is previous restraint. The with
holding of the tradatur of the Postmaster is
as effective as the withholding OF the inl-
prinnatur Of the censor.
One learned Judge, startled by the sweep
ing scope of the language, which as clearly
embraces the mailing of the prohibited mat
ter to lOttery-dealers as by lottery-dealers.
has declared it incredible that Congress
could have intended to punish a man for a
criminal offense who had simply written
letter TO lCtterY-dealer. even II 1t were to
order a ticket, and has cut down the statute
so as to limit its prohibitions to lottery
dealers. Omitted States VS.. Clark, - Fed
eral Reports, 70S) IL a statute embraces
provisions, some of which are within and
some beyond the legislative power, the for
mer may be saved If they can be read sep
arately from the latter; but the separation
cannot be effected by an heroic construction.
Courts must unite knots, not cut them. ut
would certainly be dangerous if the Legisla-
tuTe could set net large enough to catch
all possible offenders, and leave it to the
courts to step inside and say who could
rightfuly be detained and who should be
set at large. This would, to some extent,
substitute the judicial for the legislative de-
uartment of the Government" Omitted
States vs.. Reese, 90 U. S, 214, 221.)
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, larceny
anything which is nahum in se-Or anything
which tends to facilitate the commission Of
acts which it has power under the COnstitu-
ton To declare to be crimes, and punish as
such-piracy, and cOunterfeiting the coin,
for instance, is not questioned.
Hence il has the power TO forbid the mall
ing or delivery Of obscene books or pictures.
The publication or circulation of these was
a perfectly well-known offense 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 circu-
lated; 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, II 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, differ
ence between the methods rs 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 free
dom of circulation is not abridged
1t Is quite evident that this conclusion
proceeds upon the view-it can stand upon
no other-that tie freedom of circulating,
admitted to be tantnmount to freedom of
publishing, is not abridged SO long as the
citizen has the right to circulate printed mat
ter IN any private manner which he alone,
or with the assistance of others, may con-
tTive, 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 fellOw-citlZens enjoy. and for
which he is taxed and made to pay in conf
mon with them.
Against this view it seems to us more in
accordance with sense and reason to say
that the emphatic declaration of the Const-
tuition made to forever preserve the
PRINCIPAL SAFEGUARD OF LIBERTY,
That Congress should not pass any law
abrdging the freedom of the press, is vio-
lated by any law which takes away any of
the ordinary methods of circulating printed
matter.
There are two principal questions in this
case, and none more important have ever
DteH submitted TO lDlS Tribunal. he HrSt
is, whether Congress may, in virtue of its
authority to make laws necessary and
proper in order to carry into execution the
powers expressly granted to it, pass a law
manifestly and avOwedly for the sole pur-
pose Of SURPRISING q business within a
State, which that State has the right to au-
thoriZe, and over which Congress has no
direct control. The second is whether a
law prohibiting the circulation of certain
written and printed matter open to no objec-
ton save that it relates to certain business
not criminal in itself, and permitted by the
laws of some of the States, by the ordinary
law for the public generally, abridges the
freedom of circulation, and, by consequence,
the freedom of the press.-Boston Mass,
Herald.