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that prevents these rights from running into license. Thus in some places newspapers are not to be hawked about the streets; in others they are not to be cried on Sunday. Nobody thinks that the freedom of the press, guaranteed by the Constitution, is interfered with by such regulations.

But it is said there is censorship in the prohibition to the postmaster to deliver. The prohibition only relates to newspapers containing lottery advertisements. It may be filled with other matter touching lotteries, and the prohibition will not apply. And further, the postmaster is not the channel of publication prescribed by law. He is responsible, under the law, if he abuses his power. We are not to assume that an officer, whose duty it is to withhold newspapers containing lottery advertisements, is going to violate the law and convert himself into a censor. No government would be practicable on that theory.

Shall Louisiana dominate the Union with this lottery? Power to prevent it must exist somewhere. It does exist in the United States, the government of all, with powers delegated by all, and representing all. McCulloch v. Maryland, 4 Wheat. 316, 405. "Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health or the public safety." Mugler v. Kansas, 123 U. S. 623, 660.

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 Brad

Opinion of the Court.

ley, 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 writ 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 postroads 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 not 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 ef fect 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

Opinion of the Court.

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, burglary, etc., and the offence 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

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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 hereinbefore entered discharged.

BOYD v. NEBRASKA ex rel. THAYER.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 1208. Argued December 8, 1891.- Decided February 1, 1892.

Boyd was born in Ireland in 1834, of Irish parents. His father emigrated to the United States in 1844, with all his family, and settled in Ohio, in which State he has since resided continuously. In 1849 the father duly declared his intention to become a citizen of the United States, but there is no record or other written evidence that he ever completed his naturalization by taking out his naturalization certificate after the expiration of the five years. For many years after the expiration of that time, however, he exercised rights and claimed privileges in Ohio, which could only be claimed and exercised by citizens of the United States and of the State. The son, on attaining majority, voted in Ohio, under the belief that his father had become a citizen. In 1856 he removed to Nebraska, in which State he resided continuously until the commencement of this action. He voted there at all elections, held various offices there which required him to take an oath to support the Constitution of the United States, served in the army during the war, was a member of a convention to frame a state constitution, was mayor of Omaha and, after thirty years of unquestioned exercise of such rights and privileges, was elected governor of the State of Nebraska, receiving a greater number of votes than any other person voted for. He took the oath of office, and entered on the discharge of its duties. His predecessor, as relator, filed an information in the

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Supreme Court of Nebraska, in which were set forth the facts as to the declaration of intention by Boyd's father, and it was further averred that the father did not become a citizen during the son's minority, nor until the October term of the Court of Common Pleas in Muskingum County, Ohio, in the year 1890, when the son was 56 years of age, and it was claimed that Boyd, the son, never having himself been naturalized, was not, at the time of his election, a citizen of the United States, and was not, under the constitution and laws of Nebraska, eligible to the office of governor of that State, and the relator therefore prayed judgment that Boyd be ousted from that office, and that the relator be declared entitled to it until a successor could be elected. To this information the respondent, in his answer, after stating that his father, on March 5, 1849, when the respondent was about fourteen years of age, made before a court of the State of Ohio his declaration of intention to become a citizen of the United States, and averring "that his father for forty-two years last past has enjoyed and exercised all of the rights, immunities and privileges and discharged all the duties of a citizen of the United States and of the State of Ohio, and was in all respects and to all intents and purposes a citizen of the United States and of the State of Ohio," and particularly alleging his qualifications to be a citizen, and his acting as such for forty years, voting and holding office in that State, further distinctly alleged "on information and belief, that prior to October, 1854, his father did in fact complete his naturalization in strict accordance with the acts of Congress known as the naturalization laws so as to admit and constitute him a full citizen of the United States thereunder, he having exercised the rights of citizenship herein described, and at said time informed respondent that such was the fact." To this answer the relator interposed a demurrer, and on these pleadings the court below entered a judgment of ouster against Boyd, to which judgment a writ of error was sued out from this court. Held,

(1) That, as the defence relied on arose under an act of Congress and presented a question of Federal law, this court had jurisdiction to review it (FIELD, J., dissenting);

(2) That the fact that the respondent's father became a citizen of the United States was well pleaded, and was admitted by the demurrer;

(3) That upon this record Boyd had been for two years, next preceding his election to the office of governor, a citizen of the United States and of the State of Nebraska;

(4) That where no record of naturalization can be produced, evidence that a person having the requisite qualifications to become a citizen did in fact and for a long time vote, and hold office, and exercise rights belonging to citizens, is sufficient to warrant a jury in inferring that he has been duly naturalized as a citizen. And it was further Held, by FULLER, C. J., and BLATCHFORD, LAMAR, and BREWER, JJ.:

(5) That, the Supreme Court having denied to Boyd a right or privilege