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

there was no previous restraint. But
the prohibition forbids the postmas-
ter from delivering any such newspa-
per, circular, pamphlet or publication.
1t arrests publication, for it arrests the
communication of the matter to the
public, or to those for whom it is in
tended. And whether publication
should be thus arrested is submitted
to the Judgment of a postmaster! This
is perfect restoration of the censor
ship. That, indeed, as formerly exist
ing, was interposed stage earlier. 1t
forbade the printing until the impri-
mature was given. But this is inter
posed before publication, which is the
essence of the censorship. 1t is pre-.
vious restraint The Withholding OF
the tradatur of the postmaster is as
effective as the Withholding of the i'm
primatur of the censor,
One learned judge, startled by the
sweeping cope 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 a man for a crimi
nal 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 pro.
hibitions to lottery dealers. UNITED
States VS.. Clark, % Federal Reports,
70S) If a statute embraces provis
ions, some of which are within and
some beyond the legislative power,
the former may be saved if they can
be read separately from the latter
but the separation can not be effected
by a heroic construction. Courts
must unite knots, not cut them. at
would certainly be dangerous if the
legislature could set net large
enough to catch all possible offenders
and leave it to the courts to step in
side and say who could rightfully bt
detained and who should be set al
large. This would, to some extent
substitute the judicial for the legisla.
tive derar' ment # government.
United States VS.. Reese, 81 U. s., 214
221.
Congress Had No Direct Power Whatever
That congress has power to exclude
from the mail any publication or let
ter tending to provoke murder, arson
burglary, larceny-anything which is
nahum in se-Or anything which tends
to facilitate the commission of act:
which it has power under the consti-
tion to declare to be crimes, and pun
ish as such-piracy, and counterfeit
ing the coin, for instance, is not ques-
toned. .,e..
Hence it has the power to forbid the
mailing or delivery of obscene books
or pictures. The publication or circu-
lation of these was a perfectly wei
known offense at common law.
| There are, as there were at the time
two methods by which printed matter
might be circulated; one public and
the other private.
The form r was the principal one
upon which the whole public mainly
relied. It was constant, regular,
abundant and sure; and, more
over, it had the capacity by law of eX,
Guiding the other from the field, if not
absolutely, at least for the most part,
and of thus increasing its own eff
cheney. There was, and is, a similar,
if not as great, difference between the
methods as between the sending of
merchandise by railroad and by pri-
vate conveyance. This principal
method of circulation is denied to Ger
tain printed matter, and yet it is de-
clared that the freedom of circulation
is not abridged!
IL is quite evident that this conclu-
sion proceeds upon the view-it can
stand upon no other-that the freedom
OF circu alton, admitted TO be tantl-
mount to freedom of publishing, is not
abridged so long as the citizen has the
| right to circulate printed matter in
any private manner which he alone, or
with the assistance of others, may con.
trive, and has references only to the
right to circulate, and no reference to
any right to enjoy the usual public
means CT circulating which his fellow
citizens 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 constitution made it forever pre-
serve the
Principal Safeguard of Liberty,
that congress should not pass any law
abridgiDg the freedom of the press, Is
violated by any law which takes away
any of the ordinary methods of circu-
lating printed matter
There are two principal questions in
this case, and none more important
have ever been submitted to this tri-
-bunal The first is whether congress
may, in virtue of its authority to make
laws necessary and proper in order to
carry into execution the powers ex-
pressly granted to it, pass law mani
fes'ly and avowedly for the sole pur-
pose of suppressing a business within
a state, which that state has the right
to authorize, and over which congress
has no direct control. The second is
whether law prohibiting the circula-
ton of certain written and printed
matter open to no objection save that
it relates to q certain business not
criminal in itself, and permitted by
the laws of some of the states, by the
ordinary and usual means of circula-
ton provided by law for the public
generally, abridges the freedom of cir
culation, and, by consequence, the
freedom of the press.-Boston (Mass)
Herald,