If the federal government deprives the citizens of a State of the use of the mails to transact the business conducted by them lawfully, within its limits, especially when such use is confined to the territory of the State, it discriminates against a class of persons engaged in a lawful avocation.

Wrong cannot be predicated of what a sovereign State, in the exercise of its reserved powers says is right within its own territory.

This must be so otherwise the sovereignty of the states is a myth. If the states be sovereign in any aspect whatever, that sovereignty is manifested in the control of their domestic affairs. The domestic legislation or internal policy of a State cannot be questioned by the federal government, or by any other State.

The liberty of speech and of the press implies not only liberty to publish, but complete immunity from legal censure and punishment for publication, so long as it is not hurtful in its character, when tested by such standards as the law affords. For those standards we must look to the common law rules which were in force when the constitutional guarantees were established and in reference to which they have been adopted.

Cooley, Const. Lim. (6th ed.) p. 518.

Is not exclusion from the mails, that is to say, the deprivation of the use of a public franchise, both censure and punishment? The law which excludes a newspaper because it contains a lottery advertisement undoubtedly censures the matter contained in the journal, and it punishes its editor on account of the matter so published, if the deprivation of a common right be punishment. Discrimination in the use of the mails against a newspaper because of opinions expressed in its columns on a moral question, smacks of proscription; and when the newspaper is published in a State which by its laws sanction the opinions expressed, such discrimination amounts to direct interference with the domestic policy of the State, on a moral question, which the State alone is competent to determine.

Mr. W. H. H. Miller, Atty-Gen., for the United States:

In Ex parte Jackson, 96 U. S. 727 (24: 877), nearly 15 years ago, the exact question mooted in these cases arising in the same way was fully considered and unanimously decided by this court. Since that time the principle of that decision has been accepted by the people, by Congress, by the executive officers of the government, and by the courts, as the settled law of the land.

The main effort of counsel for petitioners in each of the briefs seems to be to becloud the issue. To this end their arguments assume that the refusal of the general government to be the instrumentality for the circulation of lottery literature is the same thing as forbidding the publication or circulation of such literature; that the only escape from a violation of the prohibition in the 1st Amendment to the Federal Constitution against making a law abridging

They totally ignore the fact that the sole effect of the Act of Congress is that the general government, its officers, employés, and agencies shall in no way aid or abet this business; that its mail-bags and the hands of its servants shall not be used in spreading and manipulating snares for its unwary victims; that it simply says to federal officials "hands off."

In like manner, and for like purpose, it is assumed that the question here is dependent on the law of criminal libel, and the court is favored with a most elaborate and learned history and discussion of that subject in England and in this country; very edifying and instructive, but, with due deference it is submitted, quite irrelevant here.

In Mr. Taylor's brief much space is devoted to the argument that this law is invalid, because Congress attempts to determine the moral quality in lottery literature, instead of leaving that question to a jury; as if that were not a common exercise of the legislative function with reference to mala prohibita not dependent on criminal intent.

Re Coy, 127 U. S. 754, 755 (32: 279).

So in the brief of Mr. Semmes, much stress is laid on the fact that Louis XIV., George Washington, and even preachers of the gospel have in times past believed in and profited by lotteries. He might have added that persons no less illustrious and worthy, contemporaries of these same men, in France, England, and in this country, believed in and encouraged the use of the holy inquisition and the burning of heretics, Quakers and witches, in the interest of "pure and undefiled religion;" yet, it will hardly do to insist that the government of the United States would, therefore, be bound to lend its aid to such practices, in the interest of constitutional liberty, if an attempt were made to revive them now.

No one can doubt that Congress can exercise no power which has not been conferred upon it by the Constitution, and cannot exercise the powers which have thus been bestowed in ways and for purposes which the Constitution forbids.

Nor is it doubted that the incidental powers which Congress may exercise must be such as, in the language of the Constitution, are "necessary and proper" for carrying into execution powers conferred by the Constitution; or that what such incidental powers are, is a judicial question; or that the means provided must have relation to the end to be accomplished and must be legitimately within the constitutional functions of Congress; or, that, while courts may not inquire of the motives of individual legislators, they may look at the necessary effect, and thereby judge of the purpose of legislation, and whether the same be what it really purports to be, or an evasion or roundabout way of accomplishing something else. But, while we do not question these general propositions we do wholly dissent from the application that is attempted to be made of them in these cases.

Congress has a broad discretion as to what may be carried in the mails, and as to where

and when the same shall be carried. And, | therefore, necessarily, it cannot be bound to furnish mail facilities everywhere, for all purposes and to all the people of the United States. It is by the petitioners deemed proven that, as direct legislation suppressing the lottery in Louisiana would be unauthorized, therefore this statute is void.

The trouble with this argument is, that it proves too much. The principle asserted is that any legislation by Congress forbidding the use of the mails in aid of the perpetration of any crime can have no validity, unless a federal law directly forbidding under penalty, the perpetration of that crime would be a valid enactment. A law enacted by Congress for the punishment of murder in a State would be invalid; therefore, suy law that forbids the use of the mails by conspirators in aid of the perpetration of such murder is invalid. & law forbidding the transportation of news papers advertising pawdy-houses in Baltimore, or elsewhere in a State, in the language of sbrief, "would be passed simply and solely for the purpose of disfavoring and if possible suppressing bawdy-houses." Paraphrasing the brief, "if Congress had enacted a law forbid ding, under penalties, the carrying on of the bawdy-house business in any State there would be no hesitation in any court in declaring it to be unconstitutional." Therefore, of course, a statute, excluding bawdy-house advertisements from the mails is unconstitutional. Of course, illustrations of this kind might be multiplied indefinite; but surely elaboration is unneces

sary.

Nor will the distinction attempted further along in the brief between mala prohibita and mala in se relieve the situation. The argument culminates in the proposition that, because Congress has no power directly to deal with a particular crime within one of the states, therefore it cannot deny those engaged in the perpetration of that crime the use of the mails, because that would be doing indirectly what might not be done directly; and in this there is no distinction between mala prohibita and mala in se. If Congress may forbid the use of the mails for literature tending to promote mala in se, which it could not legislate against directly thereby, "disfavoring and if possible suppressing" the same, what becomes of the principle that Congress cannot enact laws that indirectly touch offenses which they could not punish directly.

The second part of the argument of counsel of petitioners rests upon two propositions: First, that which has just been under discussion, and which I think has been shown to be baseless; and, second, the assumption that the right to operate a lottery is one of the fundamental rights of man, like the right to exercise a profession, as a physician.

Dent v. West Virginia, 129 U. S. 114 [32: 623].

Or a trade as a laundryman. Yick Wo v. Hopkins, 118 U. S. 356 [30: 220]. It would seem hardly worth while to spend time upon an argument resting upon such assumption. If it can be demonstrated that to prey upon one's fellow-men by means of a lottery is a fundamental human right, the Decalogue, and the Sermon on the Mount, not to

mention the Declaration of Independence, ought to be re-written at once.

One other assertion in the discussion of this second proposition of the brief of petitioners counsel ought to be noticed, speaking of the grants to Congress of the power to legislate, which is, that the powers conferred upon Congress were mandatory, and the actual exercise of them was contemplated and required. This is certainly a very novel proposition. Over and over again it has been decided that many of the powers granted to Congress under section 8 of article 1 of the Constitution, not only may remain but have for many years remained in abeyance, and while so in abeyance that the states might legislate, and they have in fact legislated upon the same subject.

Sturges v. Crowninshield, 17 U. S. 4 Wheat. 122 [4: 529]; Ogden v. Saunders, 25 U. S. 12 Wheat. 213 [6: 606]; Leisy v. Hardin, 135 U. S. 100 [34: 129]; Pound v. Turck, 95 U. S. 459 [24: 525]; Cardwell v. American River Bridge Co. 113 U. S. 205 [28: 959].

Now, however, it appears that in all this Congress has been delinquent, has failed to obey the mandatory requirements of the Constitution. Petitioner's counsel therefore propose to treat these powers as self executing, and, on the maxim of equity, that what ought to be done is to be taken as done, assume all needed legislation.

This certainly will save a world of trouble. It is no longer necessary to worry about the enactment of a bankrupt law. All we need to do is to assume the existence of such a law and act on it.

But seriously the proposition that these grants of power, including the grant to estab lish postoffices and post-roads, are mandatory, and that it was the duty of Congress at once to exercise every legislative power thus granted, will not bear argument. As to many, perhaps most, of these grants of power, the necessity for legislation has grown with the growth of the country. Take the case of postoffices and post-roads. Every decade the power granted to Congress has been exerted in new and extended legislation not only as to the methods and manner of postal facilities, but as to the subject-matter of postal transportation.

The truth is that in the exercise of this, as in the exercise of many of its other powers of legislation, Congress has a very broad discretion whether it shall act at all; and, if so, how, where, to what extent, and for what purpose it shall act. As to the mails, this discretion goes to matter to be carried, the manner and frequency of such carriage, the places, the compensation therefor, indeed to the whole subject-matter.

Having, in his own imagination, driven the defenders of this legislation from the grounds on which he had located them in his first two propositions, counsel for petitioner states what he regards as the only plausible defense of such legislation, viz: that the lottery is alleged to be of an immoral and injurious tendency. Thereupon he proceeds to show that the legis lation is indefensible upon that ground.

In doing this he again assumes as his fundamental proposition that inasmuch as Congress cannot pass a law directly suppressing lotteries in the states, therefore it cannot indirectly

suppress them, and therefore it must aid them in the transaction of their business through the mails. We have already seen that this position is wholly untenable, because it is conceded that Congress may refuse the use of the mails, and thus indirectly "disfavor, and if possible suppress" many practices against which it can not legislate directly. Therefore, clearly, if Congress cannot refuse mail facilities to lotteries, its inability to do so must rest upon some other principle than is involved in this argument of direct and indirect legislation.

As to the position that it is not contemplated that there shall be such a conflict between the direct legislation of a State within its conceded powers and an indirect attempt on the part of Congress to accomplish an object which it has no power to accomplish by direct legislation, we say that exactly that kind of a conflict did arise, according to this court, in Leisy v. Hardin, 135 Ú. S. 100 (34: 128); and on the suggestion of this court Congress passed an Act with a view to reconciling that conflict. 26 Stat. at L. 313. But it is hardly worth while to further notice this so-called argument that the legislation of Congress cannot indirectly disfavor what it cannot directly suppress, because counsel himself admits that as to offenses mala in se such a limitation does not exist. In other words, be announces as the basis of his entire argument this general principle, and then gives his whole case away by admitting that as to most offenses his principle has no application.

In other words, counsel admits and claims that his so-called principle is a very elastic one: that, with the change of public sentiment, the powers of Congress under the Constitution to legislate on this subject of what shall be carried in the mails advances or recedes, and that Congress can "disfavor" in the mails only such practices as at the time are universally in all the states regarded as mala in se.

With due deference I submit that if public opinion is any factor in this problem Congress and not the courts is the exponent and judge of that public opinion.

According to this argument Congress would be forbidden to exclude from the ma'ls news papers advertising appointments for dueling, for in some parts of the country duels are not condemned by public sentiment, and within a few years have been in many states regarded with the highest favor. Dueling is certainly not malum in se.

All disorderly inns or alehouses, bawdyhouses, gaming houses, stage plays, unlicensed booths, and stages for rope-dancers, mountebanks, and the like are public nuisances, and may upon indictment be suppressed and fined. 4 Bl. Com. 168.

Will counsel indicate which of these offenses might be "disfavored" in the mails, and which not, on the mala in se principle? They are all common law misdemeanors, of the same grade as obscene libel, and certainly some of them

not mala in se.

Counsel seems to make the test of what was mala in se and therefore what may be disfavored, the fact that the matter was an offense at common law. How this is to be reconciled with this statement, that, with the change of sentiment the subjects which may be dis

favored by legislation of Congress also change, it is not for the government to explain.

Whatever acts or enterprises Cougress has the power to make criminal in the District of Columbia or the territories, it may refuse, directly or indirectly, to aid, encourage, or abet in any State, without violating any obligation either to citizen or State.

Any State may make the practices of this lottery company or even the possession of its tickets within its borders with intent to sell, a crime.

Com. v. Dana, 2 Met. 329; Boyd v. United States, 116 U. S. 624 (29: 748).

It is certainly an anomaly, if, notwithstanding such legislation against the lottery in a given State, the general government is bound to aid and abet such lottery in that State.

Nor, in order to maintain the validity of this legislation, is it necessary to assert that Congress may exercise a purely arbitrary discr tion in the matter.

But if by denying the right to exercise an arbitrary discretion, it is meant to assert that Congress, in exercising any power of legislation has not the right, and is not under obligation to so exercise that power as not incidentally to aid in the commission of wrong, either to the public or to individuals, then the proposition is utterly denied.

So Congress has the undoubted power, if in its judgment the public health requires it, to prohibit the passage of the mails between a district affected with an epidemic disease and the rest of the country.

It has been held by this court (United States v. Holliday, 70 U. S. 3 Wall. 407 (18: 182), that Congress may forbid the sale of intoxicants to individual Indians within a State and not upon a reservation, and thereby "disfavor" the manufacture of such intoxicants, although it would be powerless directly to legislate against such manufacture.

The second main proposition of the brief of Mr. Carter is that the lottery statute is unconstitutional because it is a law abridging the freedom of the press, and is there, masiona with the 1st Amendment of the Constitution.

If the history of the law of libel, whether civil or criminal, bas any relation to the question under discussion here, it seems to me to be so remote as to be of unappreciable value.

But the question here is simply the question of the obligation or non-obligation of the government, to become the agent of a lottery by circulating its advertisements.

If the position of counsel is correct, then the entire Act of Sept. 26, 1888, is void, because it clearly established a censorship upon what is to go in the mails. It is clearly by that Act made the duty of the postoffice officials to exclude the matter named in the Act from the mails.

The 1st Amendment to the Constitution no more requires Congress to provide for the carrying of the literature of this lottery company in the mails than it requires Congress to provide by law for printing such literature.

Seriously, is it not too plain for argument that, under this first amendment to the Constitution, Congress does its whole duty to the press when it fails to put any restriction whatever

gress.

The claim is made that the power conferred on Congress to establish post offices and postroads is coupled with an imperative duty to exercise it.

Mr. Wm. A. Maury, Asst. Atty-Gen., for the United States:

The questions involved in the three cases are believed to be no longer open in this court.

Er parte Jackson, 96 U. S. 727 (24: 877). The Constitution declares that the Congress shall have power to establish postoffices and post-roads.

Art. 1. § 8.

The argument is earnestly pressed for the petitioners that the legislation now in question is void, because not necessary and proper for carrying into execution this power to establish postoffices and post-roads.

If then, Congress may abolish the whole postal system, it may require it to exist on such terms as it may choose to perscribe.

Passenger Cases, 48 U. S. 7 How. 468 (12: 779).

We deny that one of the direct objects of the legislation assailed is to disfavor or suppress lotteries. The direct and only object to which Congress looks is the purging of the mails; all the rest is indirect and consequential.

sion and abuse.

Congress has never, from the beginning down, recognized any such limitation on its powers as is now contended for.

The discretion of Congress is absolute under the power to establish a postal system, is binding on the courts, as this court expressly ruled with reference to the power conferred by Congress on the Secretary of the Treasury to remit penalties and forfeitures incurred under the revenue laws, and as it had before ruled in other cases.

The Laura, 114 U. S. 411, 416 (29: 147, 148); Auffmordt v. Hedden, 137 U. S. 310, 329 (34: 674).

That the right to the mail is just what Congress chooses to give and no more is evident. No one can deny that Congress has power to say what shall be mail matter and what shall not. If Congress deemed it advisable to exclude newspapers from the mails on any terms, might it not do so?

If, then, Congress might exclude newspapers absolutely may it not admit them on any terms it deems reasonable? It was upon this principle that Congress passed the Act of March 3, 1845 (5 Stat. at L. 733), separating newspapers from letters as mail matter, but the country did not take fire then, any more than now, at this abridgement of the liberty of the

press.

The right to use the mails is not a right conferred by the law of nature. It does not exist outside the Constitution, like the rights to engage in commerce or pursue happiness. On the contrary, it derives its whole being from that instrument and the action of Congress under it. It was, therefore, perfectly competent

Phalen v. Virginia, 49 U. S. 8 How. 163, 168 (12: 1030, 1032).

Was ever anything more unwarranted than the argument that because Congress exercises this police power over the mails, denying their privileges to persons engaged in plainly im moral practices, it is usurping power?

Stone v. Mississippi, 101 U. S. 814 (25: 1079). The argument that Congress cannot exercise this police power over the mails because it might abuse the power, could be used to the destruction of every implied power, and, as Mr. Justice Washington said, in Worcester v. Georgia, 31 U. S. 6 Pet. 572 (8: 505), “would go to the destruction of all governments." Such an argument would overthrow the police power of the states whose only limitation is good faith.

The simple question in this case is whether Congress has legislated in good faith or has, under the pretense of exerting its police power, attempted to invade the fundamental rights of the citizen.

It is of no small significance in this discussion that the learned counsel for the petitioners have been driven to acknowledge that Congress has the right to purge the mails of matter relating to offenses which are mala in se, while they contend it has no such right as to offenses that are mala prohibita.

This looks like a surrender of the argument, Congress has the right to cleanse the mail service of the only kind of crime that really infests it, we mean the offenses called mala prohibita.

Like the police power of the states, this power of exclusion from the mails extends to all sorts and descriptions of offenses, including everything under the head of mala prohibita, for, otherwise, the power of exclusion would be practically worthless.

Whatever good, then, lotteries may be claimed to have done in the past, the present condition of society makes them a gigantic evil, and demands that they shall be stamped