Section 3894 of the Revised Statutes, as amended by the Act of
September 19, 1890, 26 Stat. 465, c. 908, which provides that
"No letter, postal card or circular concerning any lottery . . .
and no list of the drawings at any lottery . . . and no lottery
ticket or part thereof . . . shall be carried in the mail, or
delivered at or through any post office, or branch thereof, or by
any letter carrier,"
and that no newspaper "containing any advertisement of any
lottery . . . shall be carried in the mail, or delivered by any
postmaster or letter carrier," and that
"any person who shall knowingly deposit or cause to be deposited
. . . anything to he conveyed or delivered by mail in violation of
this section . . . shall be deemed guilty of a misdemeanor, and on
conviction shall be punished by a fine of not more than five
hundred dollars or by imprisonment for not more than one year"
is a constitutional exercise of the power conferred upon
Congress by Art. I, Sec. 8 of the Constitution, to establish post
offices and post roads, and does not abridge "the freedom of speech
or of the press," within the meaning of Amendment I to the
Constitution.
Ex Parte Jackson, 96 U. S. 727,
affirmed to the points
(1) That the power vested in Congress to establish post offices
and post roads embraces the regulation of the entire postal system
of the country, and that under it Congress may designate what may
be carried in the mail and what excluded.
Page 143 U. S. 111
(2) That in excluding various articles from the mails, the
object of Congress is not to interfere with the freedom of the
press or with any other rights of the people, but to refuse the
facilities for the distribution of matter deemed injurious by
Congress to the public morals.
(3) That the transportation in any other way of matter excluded
from the mails is not forbidden.
These were three applications to this Court for leave to file
petitions for writs of habeas corpus. Leave was granted, March 9,
1891, and the petitions were made returnable on the third Monday of
the next April. They were duly returned, and were on the 27th of
April assigned for argument at the present term. The prayer in each
case was for a discharge from arrest for an alleged violation of
the provisions of section 3894 of the Revised Statutes, as amended
by the Act of September 19, 1890, 26 Stat. 465, c. 908, generally
known as the Anti-lottery Act, which is printed in the margin.
*
Page 143 U. S. 112
Rapier was arrested under an information in the District for the
Southern District of Alabama.
Dupre was arrested under two indictments in the Circuit Court
for the Eastern District of Louisiana.
The charge against Rapier, and against Dupre in one indictment,
was the mailing of a newspaper containing an advertisement of the
Louisiana Lottery, and in the other indictment against Dupre was
for the mailing of a letter concerning it.
As a cause for the issue of the writ, Rapier said in his
application:
"Your petitioner avers that he is now in the custody of said
marshal under or by color of the authority of the United States and
in violation of the Constitution of the United States. Your
petitioner is advised that the pretended statute under which he is
being prosecuted and held is in violation of the Constitution of
the United States, and that the said district court is without
jurisdiction in the premises."
Dupre, in No. 8, averred that he was
"deprived of his liberty under and by color of the authority of
the United States and of said court and in violation of the
Constitution of the United States and of his rights as a citizen
thereof, because he says that he is advised and therefore avers
that the statute of the United States under which he is held and
being prosecuted upon said indictment is unconstitutional, null,
and void, and particularly obnoxious to and in violation of the
First Amendment to said Constitution which forbids Congress'
passing any law abridging the freedom of the press, and that
therefore said circuit court is and was without jurisdiction in the
premises, and he is deprived of his liberty without authority of
law."
His petition in No. 9 contained the same averment.
Page 143 U. S. 132
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
We are constrained by the circumstances in which we find
ourselves placed by the illness and death of Mr. Justice
Bradley,
Page 143 U. S. 133
to whom the preparation of the opinion in these cases was
committed, to waive any elaboration of our views, and confine
ourselves to the expression of the general grounds on which our
decision proceeds.
These are applications for discharge by with of habeas corpus
from arrest for alleged violations of an Act of Congress approved
September 19, 1890, entitled "An act to amend certain sections of
the Revised Statutes relating to lotteries, and for other
purposes." 26 Stat. 465, c. 908.
The question for determination relates to the constitutionality
of section 3894 of the Revised Statutes as amended by that act. In
Ex Parte Jackson, 96 U. S. 727, it
was held that the power vested in Congress to establish post
offices and post roads embraced the regulation of the entire postal
system of the country, and that under it Congress may designate
what may be carried in the mail and what excluded; that in
excluding various articles from the mails, the object of Congress
is not to interfere with the freedom of the press or with any other
rights of the people, but to refuse the facilities for the
distribution of matter deemed injurious by Congress to the public
morals, and that the transportation in any other way of matters
excluded from the mails would not be forbidden. Unless we are
prepared to overrule that decision, it is decisive of the question
before us.
It is argued that in Jackson's case, it was not urged that
Congress had no power to exclude lottery matter from the mails; but
it is conceded that the point of want of power was passed upon in
the opinion. This was necessarily so, for the real question was the
existence of the power, and not the defective exercise of it. And
it is a mistake to suppose that the conclusion there expressed was
arrived at without deliberate consideration. It is insisted that
the express powers of Congress are limited in their exercise to the
objects for which they were entrusted, and that in order to justify
Congress in exercising any incidental or implied powers to carry
into effect its express authority, it must appear that there is
some relation between the means employed and the legitimate end.
This is true, but while the legitimate end of the exercise of
the
Page 143 U. S. 134
power in question is to furnish mail facilities for the people
of the United States, it is also true that mail facilities are not
required to be furnished for every purpose.
The states, before the union was formed, could establish post
offices and post roads, and in doing so could bring into play the
police power in the protection of their citizens from the use of
the means so provided for purposes supposed to exert a demoralizing
influence upon the people. When the power to establish post offices
and post roads was surrendered to the Congress, it was as a
complete power, and the grant carried with it the right to exercise
all the powers which made that power effective. It is not necessary
that Congress should have the power to deal with crime or
immorality within the states in order to maintain that it possesses
the power to forbid the use of the mails in aid of the perpetration
of crime or immorality.
The argument that there is a distinction between
mala
prohibita and
mala in se, and that Congress might
forbid the use of the mails in promotion of such acts as are
universally regarded as
mala in se, including all such
crimes as murder, arson, burglars, etc., and the offense of
circulating obscene books and papers, but cannot do so in respect
of other matters which it might regard as criminal or immoral, but
which it has no power itself to prohibit, involves a concession
which is fatal to the contention of petitioners, since it would be
for Congress to determine what are within and what without the
rule; but we think there is no room for such a distinction here,
and that it must be left to Congress, in the exercise of a sound
discretion, to determine in what manner it will exercise the power
it undoubtedly possesses.
We cannot regard the right to operate a lottery as a fundamental
right infringed by the legislation in question; nor are we able to
see that Congress can be held, in its enactment, to have abridged
the freedom of the press. The circulation of newspapers is not
prohibited, but the government declines itself to become an agent
in the circulation of printed matter which it regards as injurious
to the people. The freedom of communication is not abridged within
the intent and meaning
Page 143 U. S. 135
of the constitutional provision unless Congress is absolutely
destitute of any discretion as to what shall or shall not be
carried in the mails, and compelled arbitrarily to assist in the
dissemination of matters condemned by its judgment through the
governmental agencies which it controls. That power may be abused
furnishes no ground for a denial of its existence, if government is
to be maintained at all.
In short, we do not find sufficient grounds in the arguments of
counsel, able and exhaustive as they have been, to induce us to
change the views already expressed in the case to which we have
referred. We adhere to the conclusion therein announced.
The writs of habeas corpus prayed for will therefore be
denied, and the rules herein before entered discharged.
*
"Chap. 908. An act to amend certain sections of the Revised
Statutes relating to lotteries, and for other purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that
section thirty-eight hundred and ninety-four of the Revised
Statutes be, and the same is hereby, amended to read as
follows:"
"SEC. 3894. No letter, postal-card or circular concerning any
lottery, so-called gift concert, or other similar enterprise
offering prizes dependent upon lot or chance, or concerning schemes
devised for the purpose of obtaining money or property under false
pretences, and no list of the drawings at any lottery or similar
scheme, and no lottery ticket or part thereof, and no check, draft,
bill, money, postal note or money order for the purchase of any
ticket, tickets or part thereof, or of any share or any chance in
any such lottery or gift enterprise, shall be carried in the mail
or delivered at or through any post office or branch thereof, or by
any letter carrier; nor shall any newspaper, circular, pamphlet or
publication of any kind containing any advertisement of any lottery
or gift enterprise of any kind offering prizes dependent upon lot
or chance, or containing any list of prizes awarded at the drawings
of any such lottery or gift enterprise, whether said list is of any
part or of all of the drawing, be carried in the mail or delivered
by any postmaster or letter carrier. Any person who shall knowingly
deposit or cause to be deposited, or who shall knowingly send or
cause to be sent anything to be conveyed or delivered by mail in
violation of this section, or who shall knowingly cause to he
delivered by mail anything herein forbidden to be carried by mail,
shall be deemed guilty of a misdemeanor, and on conviction shall be
punished by a fine for not more than five hundred dollars, or by
imprisonment for not more than one year, or by both such fine and
imprisonment for each offense. Any person violating any of the
provisions of this section may be proceeded against by information
or indictment and tried and punished either in the district at
which the unlawful publication was mailed or to which it is carried
by mail for delivery according to the direction thereon or at which
it is caused to be delivered by mail to the person to whom it is
addressed."
