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Statement of the Case.

Rapier was arrested under an information in the District Court for the Southern District of Alabama.

Dupré was arrested under two indictments in the Circuit Court for the Eastern District of Louisiana.

The charge against Rapier, and against Dupré in one indictment, was the mailing of a newspaper containing an advertisement of the Louisiana Lottery; and in the other indictment against Dupré 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."

Dupré 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 substantially the same aver

ment.

demeanor, 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 offence. 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."

Mr. Carter's argument for Petitioner.

Mr. Hannis Taylor for Rapier.

Mr. James C. Carter and Mr. Thomas Semmes for Dupré.

Mr. Attorney General and Mr. Assistant Attorney General Maury for the United States.

These cases were argued by the above named counsel, an extension of time being allowed by the court. In view of the impossibility of reporting all seriatim, the arguments for the petitioners are represented below by a synopsis of Mr. Carter's brief, and those for the government by an abstract of Mr. Maury's argument.

Mr. James C. Carter for Dupré, petitioner.

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

Our first proposition is that the statute in question is invalid, as being an attempt to exercise powers not conferred upon Congress.

1. It is not denied that Congress, in the exercise of the power conferred upon it by the Constitution "to establish post-offices and post-roads," is clothed with the full incidental power of regulating such offices and roads; - in other words, of regulating the mail service. Nor is it denied that this incidental power of regulation embraces the power of so limiting the carriage of matter by mail as to render that service practicable; and consequently embraces a power of excluding matter from the mails for that purpose and to that extent. What we do assert is that any incidental powers which Congress may thus exercise must be such only as, in the language of the Constitution, "are necessary and proper" for carrying into execution a general power expressly conferred; and that whether any such incidental power is "necessary and proper

VOL. CXLI-8

Mr. Carter's argument for Petitioner.

must be, as this court has always regarded it, a judicial question. McCulloch v. Maryland, 12 Wheat. 316, 420.

The first form which the judicial inquiry assumes is, whether the means employed by Congress in executing its admitted powers are appropriate, and apparently conducive to the legitimate end. If they are so, it matters not whether or not they are the best and most effective means. Congress may fail in the effort to select these. But they must be means; in other words, they must have some relation to the end-some tendency to accomplish it. Applying this test the statute in question is plainly invalid. This seems scarcely to admit of debate.

The legitimate end is to furnish mail facilities to the people of the United States; and this means to all the people of the United States. But the statute in question makes the moral character of the matter the sole ground of exclusion. The fact that the mail service has been maintained for a century without such exclusion is sufficient to show that it is not conducive to the mere end of establishing a mail service.

We are not, at this moment, objecting that the statute is invalid because aimed to accomplish an object beyond the power of Congress, or because forbidden by some express prohibition of the Constitution. Our argument now is that being an attempted exercise of incidental powers it is condemned by an implied prohibition of the Constitution, because the means employed by it plainly appear to be in no manner conducive to the only legitimate end for which we now assume they could be employed, namely, the maintenance of the mail service. United States v. Fox, 95 U. S. 670; United States v. Reese, 92 U. S. 214; Dent v. West Virginia, 129 U. S. 114; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333.

Courts of justice always avoid, so far as possible, any inquiry into the motives of legislators. They never indulge in it so far as to seek, through the instrumentality of evidence, what such motives are, with the view of invalidating the exercise of admitted powers. A grant which a legislature has authority to make cannot be avoided by proof of fraud in the individual legislators. Fletcher v. Peck, 6 Cranch, 87. But

Mr. Carter's argument for Petitioner.

it is often the case that an act of a legislative body may be conducive to either of two objects, one of which may be within the scope of the legislative power, and the other beyond it. In such cases if the manifest purpose, or the necessary effect, of any legislation be to reach an end beyond the legislative power, it is condemned as unconstitutional. The illustrations of this rule of action are multitudinous. City of New York v. Miln, 11 Pet. 102; The Passenger Cases, 7 How. 283; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Yick Wo v. Hopkins, 118 U. S. 356; Morgan's Steamship Co. v. Louisiana, 118 U. S. 455; Ouachita Co. v. Aiken, 121 U. S. 444; Minnesota v. Barber, 136 U. S. 313. In the latter case it is held that, in applying this doctrine, while we are not permitted to inquire by means of facts given in evidence, into the motives of individual legislators, we are permitted and enjoined to ascertain the purpose, so far as it is manifest upon the face of the legislation, or inferable from its necessary effects.

It would, of course, be entirely repugnant to the spirit of the Constitution, and to the equality of the States and the general government in their respective spheres of sovereign action, if the same rule were not applied in determining the validity of a congressional enactment. 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. It is not necessary to resort to the report of the committees introducing the original bill, and which openly avows this as the sole purpose, for it is obvious and undisputable on the face of the act itself. And so it has been declared by this court. Ex parte Jackson, 96 U. S. 727. Here the argument upon this branch of the case 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.

2. But it would be an oversight to omit to notice a different view upon which an attempt may be made to defend the

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

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