The meaning of "due process of law," as used in the 5th Amendment, and that of the law of the land, which is its equivalent in many of the state constitutions, must be sought in the story of the great charter and the grants by which it was supplemented.

Hare. Am. Const. Law, Vol. 1, 531; Kring v. Missouri, 107 U. S. 221, 229 (27: 506, 509); Green v. Shumway, 39 N. Y. 418, 421; Ex parte Wilson, 114 U. S. 417 (29: 89); Mackin v. United States, 117 U. S. 348 (29: 909); Kilbourn v. Thompson, 103 U. S. 168, 181, 201 (26: 377, 383, 390); Munn v. Illinois, 94 U. S. 113 (24: 77); Palairet's App. 67 Pa. 479; Cooley, Const. Lim. 72.

The political censorship of the press perished forever in England nearly a century before the American Revolution; no attribute of political Sovereignty can be claimed by any American State which at the time of the revolution was not vested either in the crown or in the Parliament.

Martin v. Waddell, 41 U. S. 16 Pet. 410, 416 (10: 1012, 1015).

Press offenses, in so far as the term can be used with reference to English law, are tried and punished only by the ordinary courts of the country-that is, by a judge and jury. Dicey, Law of the Constitution, 247, 238, 286, 235; Odgers, Libel and Slander, Intro. (1st ed.) 12.

At the common law lotteries were neither mata prohibita nor mala in se.

Clark, Manual of Crim. Law. SS 1819, 1824; State v. Clarke, 33 N. H. 334; Act of 19 Geo. III., chap. 21; 4 Sharswood, Bl. Com. 167, Chitty's note.

In the English colonies in America the right to freedom of discussion—that is to say, the right to "freedom of speech or of the press"passed through substantially the same process of evolution which marked its growth in the mother country.

Cooley, Const. Lim. (5th ed.) 517, 518; Hutchinson, Massachusetts (2d ed.) 257; Hildreth, Hist. of U. S. 1, 561; 2 Bancroft, 73; Tyler, Hist. of Am. Literature, 89, 112, 113. In all trials for criminal libel the juries were the judges of the law and the facts, and in all the provisions of the state constitutions devised for the protection of freedom of discussion the existence of that right is either expressed or presupposed.

People v. Croswell, 3 Johns. Cas. 337-413; Respublica v. Dennie, 4 Yeates, 267; 2 Story, Const. 610; Com. v. Blanding, 3 Pick. 304.

The "freedom of speech or of the press" is protected by the 1st Amendment, subject to all the restraints which the common law imposed upon that freedom at the time of its adoption.

2 Bish. Crim. Law, § 811; Com. v. Holmes, 17 Mass. 336; Com. v. Sharpless, 2 Serg. & R. 91: Bell v. State, 1 Swan, 42.

The morality or immorality of the publications should be submitted to the jury under the charge of the court, according to the course of the common law.

United States v. Bott, 11 Blatchf. 346: United Stutes v. Foote, 13 Blatchf. 418; United States V. Bennett, 16 Blatchf. 343.

Advertisements a vital part of a newspaper. Harrison v. Pearce, 1 Fost. & F. 567; Perret

v. New Orleans Times Newspaper, 25 La. Ann. 170; Robertson v. Bennett, 12 Jones & S. 66; Simmons v. Holster, 13 Minn. 249; Zier v. Hofflin, 33 Minn. 66; Holliday v. Ontario M. F. 1. Co. 33 U. C. Q. B. 558; Ex parte Jackson, 96 U. S. 727 (24: 877).

Mr. James C. Carter, for Dupre, petitioner:

The power of Congress is limited in two ways: First, it can exercise no power which has not been conferred upon it by the Consti tution. Second, it cannot exercise the powers which have been thus bestowed in ways, or for purposes, which the Constitution forbids.

The statute in question, Rev. Stat. § 3894, is invalid, as being an attempt to exercise power not conferred upon Congress.

M'Culloch v. Maryland, 17 U. S. 4 Wheat. 316, 420 (4: 579, 605); Minnesota v. Barber, 136 U. S. 313 (34: 455); Congressional Globe 1st Sess. 24th Cong. vol. 3, pp. 437, 441. 282, 284; Calhoun's Rep. Calhoun's Work N. Y. 1883, vol. 5, page 190; United States v. Fox, 95 U. S. 670 (24: 538.)

Congress cannot make any act a crime, unless it is in some manner "necessary or proper," in the execution of its own powers to do so.

United States v. Reese, 92 U. S. 214 (24: 563); Dent v. West Virginia, 129 U. S. 114 (32: 623); Cummings v. Missouri, 71 U. S. 4 Wall. 277 (18: 256); Ex parte Garland, 72 U. S. 4 Wall. 333 (18: 366); Fletcher v. Peck, 10 U. S. 6 Cranch, 87 (3: 162).

If the manifest purpose, or the necessary effect of any legislation to be reach an end beyond the legislative power, it is condemned as unconstitutional.

New York City v. Miln, 36 U. S. 11 Pet. 103 (9: 648); Passenger Cases, 48 U. S. 7 How. 283 (12: 702); Barbier v. Connolly, 113 U. S. 27 (28: 923); Soon Hing v. Crowley, 113 U. S. 703 (28: 1145); Yick Wo v. Hopkins, 118 U. S. 356 (30: 220): Morgan's L. & T. R. & S. S. Co. v. Louisiana Board of Health, 118 U. S. 455, 462 (30: 237, 241); Ouachita Packet Co. v. Aiken, 121 U. S. 448 (30: 978); Minnesota v. Barber, 136 U. S. 313 (34: 455).

Applying this doctrine to the statute before the court and inquiring what its natural and necessary effect, and its manifest purpose are, no one will pretend that there is room for doubt. It was passed simply and solely for the purpose of disfavoring, and, if possible, of suppressing lotteries.

Ex parte Jackson, 96 U. S. 727 (24: 877); House Rep. No. 2844, 1st Sess. 51 Cong.; Sen. Rep. No. 1579, Ibid.

And here the argument upon the particular question under discussion properly closes; for no one will assert that Congress has power to suppress lotteries any more than it has to suppress any other employment or pursuit. If Congress had enacted a law directly forbidding under penalties, the carrying on of the lottery business in any State, there would be no hesitation in any court in declaring it to be unconstitutional; 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, (Cong. Globe App. 1st Sess. 24th Con. 1836, 437), it involves the assertion that Congress has the right, by such action, to break up, or impede, any business or employment.

Citizens Sav. & L. Asso. v. Topeka, 87 U. S. 20 Wall. 655 (22: 455).

The powers conferred upon Congress were mandatory, and the actual exercise of them was contemplated and required. And such exercise was to be for the equal and impartial

benefit of all.

Capen v. Foster, 12 Pick. 485; Ex parte Curtis, 106 U. S. 371, 376 (27: 232, 236).

Congress has no power to exclude matter concerning lotteries from the mails on the ground that the circulation of such matter would have an immoral or injurious tendency. The real power, which Congress attempted to exercise was to hamper and impede, and, if possible, to destroy, the lottery business.

No such power can be derived from any express language in the Constitution, nor by any just implication from any language in it; the power to declare such acts, crimes, or to punish them as such, or to obstruct and impede them because they are crimes, is lodged exclusively with the state governments.

United States v. Cruikshank, 92 U. S. 542, 550 (23: 588, 590).

Whether a citizen of Louisiana, or of Maine, may carry on the lottery business, or do any act in the transaction of any business with a lottery, must therefore depend on the laws of those states respectively. Can it be true that the theory of the distribution of powers and functions between the states and the general government contemplates that a State may permit a lottery, even encourage it and shape its laws to that end, and that, at the same time, the general government may discourage and impede them and shape its laws to that end, and that both governments would at the same time be acting within the scope of their au thority and the action of either, if challenged in this court, be upheld.

Where Congress cannot by direct legislation pronounce a business to be a crime and punish it as such, 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.

Cooley, Const. Lim. 208; Taylor v. Ross County Comrs. 23 Ohio St. 22; Paterson, Liberty of the Press. Lond. 1880, 60.

The preservation of the powers and functions reserved to the states is, in the view of constitutional jurisprudence, of equal importance with the preservation of those bestowed upon the general government. The two systems stand upon an exact equality.

Buffington v. Day, 78 U. S. 11 Wall. 113 (20: 122); Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 474 (24: 527, 531).

As to all crimes which are mala in se, and as to all other matters which by the Constitution Congress has power to declare to be criminal offenses and to punish them as such, it is the right and duty of the government to act as a moral agent, and to grant or withhold its mail, or other facilities, in a way calculated to pro

mote such a moral policy as it may approve. But upon all other subjects the right to exercise moral control is lodged exclusively with the states.

The government may exclude from the mails all matter promoting such acts as it has the authority to declare to be criminal offenses and to punish as such, and also all matter promoting such acts as were at the time of the adoption of the Constitution regarded as mala in se, and in this latter class the offense of circulating obscene books and pictures undoubtedly falls. This was a well known offense at common law.

Dugdale's Cas. 1 Dears. C. C. 64, 75; Holt's Laws of Libel, 73.

Lotteries and dealing with lotteries are not mala in se.

Stone v. Mississippi, 101 U. S. 814, 821 (25: 1079, 1081); The Antelope, 23 U. S. 10 Wheat. 66 (6: 268).

But the statute in question is invalid, not only for the reason that none of the powers couferred 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 1st Amendment.

What liberty of the press imported at the time of the adoption of the federal Constitution, was the particular liberty of the press, which was, and is, protected by the constitutional safeguard.

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.

The power of censorship of the press seems originally to have been exercised by the Crown itself; at a subsequent period it was lodged in a body every way fitted for such a purposethe Star Chamber. It was asserted by the Long Parliament during the vacancy on the throne, and, after the Restoration, was again vested in the Crown by acts of Parliament. For an account of the origin and nature of the censorship the following authorities may be consulted:

May, Const. Hist. of England, N. Y. 1874, Vol. 2, art. IX. pp. 102-106, 108, 122; Entick v. Carrington, 19 How. St. Tr. 1029; 13 & 14 Car. II. chap. 33; Scarlett, arg. Rex v. Burdett, Lord Abinger's Mem. p. 297; Erskine's Speech in Rex v. Cuthell; Erskine's Speeches, Ridg way's Lond. ed. 1812, vol. -, p. 213, 233, 244; Erskine's Speech for Thomas Carnan, Speeches, Lond. 1810, vol. 1, p. 38; Dicey's Law of the Constitution Lond. 1886, p. 274: Odgers' Libel and Slander, (2d Lond. ed.) 10; Paterson, Liberty of Press, Speech & Worship, 38-61.

A public or seditious libel, is a publication intended to be hostile to government and to bring it into contempt.

Lord Lansdowne, In H. L. 41 Parl. Deb. 715; Protest of the Peers, Ibid, 747; Brougham's Contributions, London and Glasgow, 1856, vol. 3, p. 157; Hamilton Croswell's Cas. Works, New York, 1886, vol. 7, page 334, 343; Sir James Mackintosh Works, London, 1846, vol. 3, p. 249.

The framers of the Constitution intended by

Congress cannot adopt as its own a state law passed in the exercise of the police power, if it cannot itself enact the law.

Re Rahrer, 140 U. S. 560 (35:572).

Hamilton's Works, N. Y. 1886, vol. 7, p. 333 et seq.; People v. Croswell, 3 Johns. Cas. 337, 365.

The statute in question is a law abridging the freedom of the press.

Ex parte Jackson, 96 U. S. 727 (24: 877). The statute creates a censorship of the press. Whatever is fairly embraced within the language of the Act must be deemed to have been intended by it.

United States v. Clark, 22 Fed. Rep. 709; United States v. Reese, 92 U. S. 214, 221 (23: 533, 565); Trade-mark Cases, 100 U. S. 92 (25: 551); Allen v. Louisiana, 103 U. S. 80 (26: 318).

Mr. Thos. J. Semmes, for Dupre, petitioner:

Down to a late period, lotteries were not regarded as immoral enterprises, and were used by the British Parliament, by the Continental Congress, and by the Congress of the United States, and by the legislatures of the several states, as a means of raising money for various purposes.

When the Constitution was under discussion the people of the Colonies had enjoyed the right of sending through the public post all letters and small packets whatsoever.

Congress was empowered to establish postoffices and post-roads.

It is the duty of Congress to exercise the power thus conferred on it for the benefit of all the people of the United States, a duty imposed by the Constitution.

From the First to the Forty-second Congress no provision appears in any of the various acts passed, which attempts to interfere with the long established character of mail matter.

The only effort, prior to 1872, to prohibit the conveyance of established mail matter, was made in 1836. President Jackson recommended the passage of an Act to prohibit the circulation of incendiary papers through the mails.

Mr. Clay said that Congress could "not pass any law interfering with the subject in any shape or form whatever."

The Act of 1890, which we challenged, amended the Revised Statutes, and absolutely closed the mails against all lottery matter whatever, ignoring the distinction between legal and illegal lotteries.

Lotteries established by law in the states are domestic institutions, and any legislation of Congress, whether hostile or favorable to them, except for the purpose of taxation, is beyond the scope of the powers delegated to the federal government.

Brooks v. Calloway, 12 Leigh, 471; Smith v. Alabama, 124 U. S. 479 (31: 512).

Resort must be bad to the common law to ascertain what offenses against the United States are triable by jury.

Callan v. Wilson, 127 U. S. 555 (32: 228); Ex parte Bain, 121 U. S. 12 (30: 853).

What is a legitimate avocation? It is not any avocation which was lawful when the Constitution was adopted, and which to-day is al lowed by any State.

Leisy v. Hardin, 135 U. S. 157 (34: 149).

Chief Justice Fuller in Leisy v. Hardin, page 123 (137), says it is not for courts to disregard legislative determination of public policy. If so, is not the legislative determination of Louisiana conclusive on the subject of lotteries, a subject over which Congress has no control.

New Orleans v. Houston, 119 U. S. 273 (30: 413).

The right of defining and punishing offenses against society other than such as fall under the express jurisdiction of the federal government is reserved to the State.

Tucker's App. 309.

Congress cannot exclude from the mails, written or printed matter which conforms to the standard of morals established in a State, and which is not obnoxious to censure according to the common law.

If any object be exclusively within the scope of the reserved powers of the states, federal legislation is void as to that object, because the Constitution has not delegated the control of it to the federal government.

No direct general power over lotteries established in the states is granted to Congress, and consequently they remain subject to state legislation.

Gibbons v. Ogden, 22 U. S. 9 Wheat. 204 (6: 72).

as before they entered into the Union and are entitled to the unrestrained exercise of them." If a State stamps with legality any business conducted within its jurisdiction, has Congress the power to declare such business illegitimate? Clearly not.

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 Er 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

the freedom of the press is for every official of the postoffice department to become the servant and every carrier the errand boy of the Louisiana Lottery Company.

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 Eng land 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 constitu tional functions of Congress; or, that, while courts may not inquire of the motives of indi vidual 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