convey, or to abandon the postal system entirely, and remit the entire subject to the People, with whom it originally rested.

If the People had conferred upon Congress authority to regulate public morals, the statute before us would not be open to judicial criticism; but the People never conferred and Congress cannot exercise any such right except where the General Government has territorial jurisdiction. U. S. Const., art. I., sec. 8, sub. 17.

Having exclusive power over the subject, Congress can say what matter shall receive the benefits of this establishment; and he who complains that he cannot use it to facilitate obscene or improper communications, no more defends a constitutional right than does the debtor who cannot avail himself of the Bankrupt Act because owing but $100, or because (under the first law on this subject), not a debtor. It is a question of administration merely. There is no constitutional right to compel the granting of privileges under the power to establish a system of bankruptcy, or of mail communication. "The powers given are understood in a large sense to secure the public interest." 2 Story, Const., sec. 1134. If these interests require the exclusion of articles morally contaminating, as well as the poisons, acids or explosives, to prohibit their deposit in the postoffice beneficial exercise of the power," though" not indispensably necessary to its existence," as any of those mentioned by Marshall, Ch. J., in McCulloch v. Md., 4 Wheat.. 416.

Every State may determine each for itself whether lotteries shall be regarded and treated within its own borders as immoral or legitimate, and as they determine, may declare them to be legal or illegal. The State declaring them to be illegal may, perhaps, punish any act within its jurisdiction in their aid, which might include the act of depositing in the mail or receiving therefrom lottery letters or circulars; but the Gen-is a declaration of a right, as "essential to the eral Government cannot undertake to assist a State in enforcing such laws, particularly when by so doing it will interfere with the right of citizens of a State where the laws do not exist, and lotteries constitute a legal business. The citizens of such a State are, by the statute under review, wrongfully interfered with in the prosecution of their legitimate business transactions-the business of conducting lotteries being there as legitimate within the laws as any other lawful business; and it is immaterial whether the laws of the State, where this alleged offense was committed, permit or prohibit lotteries; the laws of Congress must be general and apply to all the people; but so long as lotteries are legal in any State, a general law will operate against the citizens of that State, and therefore it will be wholly bad, and cannot be enforced at all or any where. Lotteries are permitted in some of the States (see Statutes of Louisiana and Kentucky for instance); and at the adoption of the Constitution, were legitimate business enterprises in nearly all.

That the States, respectively, have the right to permit lotteries to exist as a business there can be no doubt; and as the only method of correspondence allowed by law is through the United States mail, and as correspondence in respect to lotteries in States where they are legalized is as lawful as correspondence in respect to any other subject, Congress cannot prohibit the mailing of such correspondence in such States, and therefore cannot prohibit it at all, without unconstitutionally abridging private rights.

Mr. Edward B. Smith, Asst. Atty-Gen., for the United States:

The 8th section of article 1, of the Constitution, confers the power to establish postoffices and post-roads, and to make all laws necessary and proper for carrying into execution that power.

It meant to create an establishment as an entirety; not merely to designate places at which mails should be taken up and delivered, and the routes by which they should be transported from point to point. It gave full, sovereign control over the entire subject, to be exercised by any appropriate means.

Kohl v. U. S., 91 U. S., 367 (XXIII., 449); Dickey v. Turnpike Co., 7 Dana, 113; Sturtevants v. Alton, 3 McLean, 393; 2 Story, Const., secs. 1125-1150; Rawle, Const., ch. 9, pp. 103.

The remedy is in the hands of the People, if Congress so legislates as to deprive them of the full and just enjoyment of the postal privileges. If any State chooses to sanction the business which the Federal Congress thinks ought not to have the use of the mails to facilitate its transactions, that State can, if it please, provide means of communication for matters so excluded from the mails.

2 Story, Const., sec. 1150; 1 Tucker, Bl. Com., App., 265.

But if there is any right of exclusion, the extent of its exercise is one of legislative discretion.

Mr. Justice Field delivered the opinion of the court:

Section 3894 of the Revised Statutes provides that No letter or circular concerning (illegal) lotteries, so called gift concerts, or other similar enterprises offering prizes, or concerning schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretenses, shall be carried in the mail." And that "Any person who shall knowingly deposit or send anything to be conveyed by mail, in violation of this section, shall be punishable by a fine of not more than $500, nor less than $100, with costs of prosecution." By an Act passed in July 12, 1876, the word “'illegal" was stricken out of the section. Under the law as thus amended, the petitioner was indicted, in the Circuit Court of the United States for the Southern District of New York, for knowingly and unlawfully depositing, on the 23d of February, 1877, at that district, in the mail of the United States, to be conveyed in it, a circular concerning a lottery offering prizes, enclosed in an envelope addressed to one J. Ketcham, at Gloversville, New York. The indictment sets forth the offense in separate counts, so as to cover every form in which it could be stated under the Act. Upon being arraigned, the petitioner stood mute, refusing to plead; and thereupon a plea of not guilty was entered in his behalf by order of the court. R. S., sec. 1032. He was subsequently tried, convicted, and sentenced to pay a fine of $100, with the costs of the prosecution, and to be committed to the county jail until the fine and costs were paid.

ferent kinds of mail matter; between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets and other

to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domicils. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examoath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Con

Upon his commitment, which followed, he pre- | sented to this court a petition alleging that he was imprisoned and restrained of his liberty by the Marshal of the Southern District of New York, under the conviction; that such conviction was illegal, and that the illegality consist-printed matter, purposely left in a condition ed in this: that the court had no jurisdiction to punish him for the acts charged in the indictment; that the Act under which the indictment was drawn was unconstitutional and void; and that the court exceeded its jurisdiction in committing him until the fine was paid. He there fore prayed for a writ of habeas corpus, to be directed to the marshal to bring him before the court, and a writ of certiorari to be directed to the clerk of the Circuit Court to send up the record of his conviction, that this court might inquire into the cause and legality of his im-ined under like warrant, issued upon similar prisonment. Accompanying the petition, as exhibits, were copies of the indictment and of the record of conviction. The court, instead of ordering that the writs issue at once, entered a rule, the counsel of the petitioner consenting thereto, that cause be shown, on a day designated, why the writs should not issue as prayed; and that a copy of the rule be served on the Attorney-General of the United States, the marshal of the Southern District of New York and the clerk of the Circuit Court. The Attorney-stitution. General, for himself and others, answered the the rule by averring that the petition and exhibits do not make out a case in which this court has jurisdiction to order the writs to issue, and that the petitioner is in lawful custody by virtue of the proceedings and sentence mentioned in the exhibits, and the commitment is sued thereon.

The power vested in Congress "To establish postoffices and post-roads" has been practically construed, since the foundation of the government to authorize not merely the designation of the routes over which the mail shall be carried and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation prescribing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. What should be mailable has varied at different times, changing with the facility of transportation over the post-roads. At one time, only letters, newspapers, magazines, pamphlets and other printed matter, not exceeding eight ounces in weight, were carried; afterwards books were added to the list; and now small packages of merchandise, not exceeding a prescribed weight, as well as books and printed matter of all kinds, are transported in the mail. The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the People, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between dif

Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress.

In 1836, the question as to the power of Congress to exclude publications from the mail was discussed in the Senate; and the prevailing opinion of its members, as expressed in debate, was against the existence of the power. President Jackson, in his annual message of the previous year, had referred to the attempted circulation through the mail of inflammatory appeals, addressed to the passions of the slaves, in prints, and in various publications, tending to stimulate them to insurrection; and suggested to Congress the propriety of passing a law prohibiting, under severe penalties, such circulation of "incendiary publications" in the Southern States. In the Senate, that portion of the message was referred to a select committee, of which Mr. Calhoun was chairman: and he made an elaborate report on the subject, in which he contended that it belonged to the States, and not to Congress, to determine what is and what is not calculated to disturb their security, and that to hold otherwise would be fatal to the States; for if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary, and enforce their circulation. Whilst, therefore, condemning in the strongest terms the circulation of the publications, he insisted that Congress had not the power to pass a law prohibiting their transmission through the mail, on the ground that it would abridge the liberty of the press. "To understand," he said, "more fully the extent of the control which the right of prohibiting cir

ble printed matter, which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts, and, in some cases, by the direct action of the officers of the postal service. In many instances, those officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises and no principle is violated in excluding the prohibited articles or refusing to forward them. specting them is seen by everyone, and is in its nature conclusive. The evidence re

culation through the mail would give to the gov- | cognizant of the facts. And as to objectiona OCT. TERM, ernment over the press, it must be borne in mind that the power of Congress over the postoffice and the mail is an exclusive power. It must also be remembered that Congress, in the exercise of this power, may declare any road or navigable water to be a post-road; and that, by the Act of 1825, 4 Stat. at L., 102, it is provided "That no stage, or other vehicle which reg. ularly performs trips on a post-road, or on a road parallel to it, shall carry letters.' The same provision extends to packets, boats or other vessels on navigable waters. Like provision may be extended to newspapers and pamphlets, which, if it be admitted that Congress has the right to discriminate in reference to their character, what papers shall or what shall not be transmitted by the mail, would subject the freedom of the press, on all subjects, political, moral and religious,completely to its will and pleasure. It would, in fact, in some respects, more effect- the object of Congress has not been to interfere In excluding various articles from the mail, ually control the freedom of the press than any with the freedom of the press, or with any other sedition law, however severe its penalties." Mr. rights of the people; but to refuse its facilities Calhoun, at the same time, contended that when for the distribution of matter deemed injurious a State had pronounced certain publications to to the public morals. be dangerous to its peace, and prohibited their March 3, 1873, 17 Stat. at L., 598, Congress decirculation, it was the duty of Congress to re-clared "That no obscene, lewd or lascivious Thus, by the Act of spect its laws and co-operate in their enforce- book, pamphlet, picture, paper, print or other ment; and whilst, therefore, Congress could not publication of an indecent character, or any prohibit the transmission of the incendiary doc- article or thing designed or intended for the uments through the mails, it could prevent their prevention of conception or procuring of abordelivery by the postmasters in the States where tion, nor any article or thing intended or adapttheir circulation was forbidden. In the discus-ed for any indecent or immoral use or nature, sion upon the bill reported by him, similar views against the power of Congress were expressed by other Senators, who did not concur in the opinion that the delivery of papers could be prevented when their transmission was permitted. Great reliance is placed by the petitioner upon these views, coming, as they did in many instances, from men alike distinguished as jurists and statesmen. But it is evident that they were founded upon the assumption that it was competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail; and of course it would follow, that if with such a prohibition, the transportation in the mail could also be forbidden, the circulation of the documents would be destroyed, and a fatal blow given to the freedom of the press. But we do not think that Congress possesses the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and prevent rival postal systems, it may, perhaps, prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted-consisting of letters, and of newspapers and pamphlets, when not sent as merchandise; but further than this its power of prohibition cannot extend. Whilst regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from the parties receiving the letters or packages, or from agents depositing them in the postoffice, or others 880

nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind, giving information, directly or indirectly, where or how or of whom or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the herein before mentioned articles or things, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than $100, nor more than $5,000, or imprisonment at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge.'

*

*

the mail should not be used to transport such All that Congress meant by this Act was, that corrupting publications and articles, and that anyone who attempted to use it for that purpose should be punished. The same inhibition has been extended to circulars concerning lotteries; institutions which are supposed to have a demoralizing influence upon the people. There is no question before us as to the evidence upon which the conviction of the petitioner was had; nor does it appear whether the envelope in which the prohibited circular was deposited in the mail was sealed or left open for examination. The only question for our determination relates to the constitutionality of the Act; and of that we have no doubt.

county jail, until his fine is paid, was within
The commitment of the petitioner to the
the discretion of the court under the statute.

of the petitioner's indictment and conviction
As there is an exemplified copy of the record
accompanying the petition, the merits of his

THE FIRST NATIONAL BANK OF the United States, which is allowed; and bond

END OF VOLUME 96.