Mr. Carter's argument for Petitioner. validity of this legislation, a view indeed upon which the bill already referred to forbidding the delivery of alleged incendiary abolition documents was defended by Senator Buchanan in 1836, in the Senate of the United States. That distinguished statesman insisted that the proposed measure should not be viewed as an affirmative exclusion of such documents from the mails, but as a refusal by the government to become an agency to furnish means and facilities for the circulation of such publications. And it may be asked here, as he asked in respect to abolition publications, "must the United States make itself the agent of dealers in lotteries and facilitate that business?" It must be that there is some plausibility in this argument, since it has commanded the assent of such able minds; but it has nothing more than plausibility. Inasmuch as a denial of mail facilities to persons wishing to carry on any particular pursuit must, of necessity, so far impede it as to greatly abridge the extent to which it may be carried on, and in many instances render it impossible; and as the argument under notice asserts the absolute right of Congress, in its uncontrollable discretion, to refuse the facilities in any case, (and such was Mr. Buchanan's view,) it involves the assertion that Congress has the right, by such action, to break up, or impede, any business or employment. It also involves the assertion, generally, that Congress, in making provision for the actual and beneficial enjoyment by the people of the powers, privileges and franchises bestowed by the Constitution, is clothed with a discretion, wholly arbitrary, to give them here, and withhold them there, as it may please. But the doctrine of this court is that the fundamental rights of citizens and these, certainly, must include all the rights and privileges which are bestowed by the Constitution — can be taken away only by due process of law; and this does not include the arbitrary mandate of the legislature. Dent v. West Virginia, 129 U. S. 114, 123; Yick Wo v. Hopkins, 118 U. S. 356, 369; Loan Association v. Topeka, 20 Wall. 655, 662, 663; Ex parte Curtis, 106 U. S. 371, 376, dissenting opinion of Mr. Justice Bradley. 3. But we insist that Congress has no power to exclude Mr. Carter's argument for Petitioner. matter concerning lotteries from the mails on the ground that the circulation of such matter would have an immoral or injurious tendency. That this was its real purpose has already been shown. In enacting that statute it was not exercising the power of regulating the mail service, for there was no relation between the means employed and that end. The real power which it attempted to exercise was to hamper and impede, and, if possible, to destroy, the lottery business, in order to protect the people of the United States from the assumed demoralizing and dangerous tendency of lotteries. Inasmuch as no one pretends that Congress may pass a law directly suppressing lotteries on the ground that they have an immoral tendency, or, indeed, on any ground whatever, the question is whether it can pass a law, not directly suppressing them by declaring them to be crimes, but harassing and obstructing them by withdrawing from them facilities which are under its control for no other reason than that it deems them crimes which it would suppress if it had the power? This question must be promptly answered in the negative, for the power thus attempted to be exercised is a power to suppress lotteries and that alone. No such power can be derived from any express language in the Constitution, nor by any just implication from any language in it. More than this, the possession of any such power by Congress is utterly inconsistent with the whole theory of the constitutional relations between the general government and the States. Against all such views we respectfully insist that where Congress cannot by direct legislation pronounce a business to be a crime and punish it as such, but that power has been reserved to the States, it is not competent to Congress to determine it to be a crime, and to deprive it of the benefit of the mails for the sole purpose of endeavoring to suppress it. What cannot be done directly cannot be done indirectly. Cooley's Constitutional Limitations, 208; Taylor v. Commissioners of Ross County, 23 Ohio St. 22. A plausible attempt may be made to retort upon us the argument drawn from possible consequences. "Is it true, then," it may be asked, "that the government of the United Mr. Carter's argument for Petitioner. States is placed in the singular attitude that it cannot discharge its duty of maintaining a mail service without extending the facilities which that service affords to criminals of every description to aid them in the commission of crime? Cannot that government decline to become the principal instrumentality in the circulation, for instance, of obscene books and pictures, without an entire abrogation of its postal service? Are the statutes passed for that purpose also invalid?" Whatever force the argument thus suggested may seem to have is more apparent than real. It is founded upon a failure to notice fundamental distinctions in the nature of criminal offences. The grand and principal distinctions between right and wrong, between what is criminal and what is innocent, (and we mean the practical and existing distinctions, and not absolute or theoretical ones,) are not created by laws. They exist in the minds of men antecedently to formal government, and are indeed a preliminary condition to the organization of any political society. It is not possible that such a society should subsist, except where one part is under subjugation to the other, unless there is a general concurrence among its members in relation to these distinctions. Propinquity, common origin and mutual intercourse produce this concurrence, and at the same time generally determine the territorial limits of the political organization. The laws are, for the most part, merely a recognition of the moral opinions of the members of the State, and are designed to enforce conformity in conduct. When the government of the United States was formed, with legislative and judicial powers, it must have been assumed that those powers would be exercised in accordance with the rules of morality- those distinctions between right and wrong - which obtained universally in the societies over which it was to extend. But, on the other hand, political societies have the power to create new distinctions between right and wrong, and thus to declare practices before regarded as innocent, or indifferent, to be criminal offences and to punish them as such. Every completely sovereign power is clothed with this function; but a government not completely sovereign may or may Mr. Carter's argument for Petitioner. not have it. The charter of its powers must be scrutinized in order to ascertain how far its authority in this direction extends. Turning to the division of powers made by our Constitution between the States and the general government, we find, as its most distinctive feature, that certain enumerated powers were awarded to the latter, and all others reserved to the former. And among the powers so reserved most certainly that of determining what new things should be declared and treated as criminal offences against the good order of society was embraced, except so far as distinct powers of legislation upon particular subjects were conferred upon the general government. There is, therefore, a well defined line which limits the extent to which the general government can act as a moral person, and regulate its powers so as to favor or disfavor particular acts of individuals in the States. That line is, in general, coincident with the boundary everywhere recognized as separating mala prohibita from mala in se. A malum in se is a thing absolutely evil in itself; not indeed absolutely in a philosophical sense, but absolutely according to the universal conviction in the political society which so views it; and mala prohibita are those things, otherwise indifferent or innocent, which the legislative power having control over the subject may declare to be offences. This distinction enables the government to exclude from the mails all matter promoting such acts as it has the authority to declare to be criminal offences and to punish as such; and also all matter promoting what were, at the time of the adoption of the Constitution (and possibly what in the progress and development of our society may come to be) universally regarded as mala in se, including all such crimes as murder, arson, burglary, larceny, etc. And in this latter class the offence of circulating obscene books and pictures undoubtedly falls. This was a well known offence at common law. Lord Campbell in Dugdale's Case, 1 Dearsly Crown Cas. 64, 75; Holt's Laws of Libel, 73. The question then, is, "are lotteries and dealing with lotteries mala in se ?" Upon this no argument need be employed. The common conviction of men has never so regarded them. Mr. Carter's argument for Petitioner. Universally allowed at the time of the adoption of the Constitution, and still allowed in some of the States, they can only be regarded as among that class of things which may be made mala prohibita. And so it has been declared in an authoritative decision of this court. Stone v. Mississippi, 101 U. S. 814, 821. II. But the statute in question is invalid, not only for the reason that none of the powers conferred upon Congress were sufficient to authorize it, but also because Congress was by an express restriction upon the exercise of those powers, prohibited from making such a law. It is a law "abridging the freedom of the press" within the meaning of the First Amendment. 1. It is important to keep in mind throughout this discussion, that the constitutional safeguard thus invoked is not so much a limitation upon the express powers enumerated and granted to Congress, as it is a restriction upon the legislative means to be employed in the exercise of those powers. Speaking with precision, it is a restriction upon the incidental powers which Congress may exercise in carrying out its express powers. 2. Any discussion of the question, whether an enactment of Congress abridges the "Liberty of the Press," should properly start with a clear statement of what that phrase imports, or rather what it imported at the time of the adoption of the Federal Constitution, for it was the particular Liberty of the Press which then existed, which was, and is, protected by the constitutional safeguard. 3. Our proposition is, that this Liberty of the Press imported the liberty of free discussion in print, without any restraint, save that which was imposed by the law of libel as it then existed in the jurisprudence of England and her American Colonies. After reviewing at length the struggle for freedom of the press, and for trial by jury in prosecutions for libel in England, for a century and a half, Mr. Carter continued: The question is, in what sense the term "Liberty of the Press" was employed in the First Amendment. How can we doubt that the framers of the Constitution, themselves devoted |