Mr. Carter's argument for Petitioner. to free principles of government, detesting the doctrines of arbitrary power, with the spectacle then actually before their eyes of the conflict going on in England between rival views - a struggle in which all who had been their friends were upon the popular side a struggle substantially finished by the triumph of that side-intended by the phrase "Liberty of the Press" precisely that liberty which was not only guarded by exemption from previous restraint, but defended by the safeguard of a jury trial? The contemporaneous exposition by those principally instrumental in the framing of the Constitution is in entire accordance with the foregoing views. It is nowhere better expressed than in Hamilton's masterly brief in the celebrated case of The People v. Croswell, an indictment for a libel upon Thomas Jefferson, President of the United States. "I. The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy or individuals. "II. That the allowance of this right is essential to the preservation of free government the disallowance of it fatal. "III. That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be entrusted to a permanent body of magistracy, and requires the effectual coöperation of court and jury. "IV. That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency and intent of the alleged libel, is calculated to render nugatory the function of the jury, enabling the court to make a libel of any writing whatsoever, the most innocent or commendable. "V. That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule that the intent, mind or quo animo, is an inference of fact to be drawn by the jury. “VI. That if there are exceptions to this rule they are con Mr. Carter's argument for Petitioner. fined to cases in which not only the principal fact, but its circumstances, can be and are defined by statute, or judicial precedent. "VII. That in respect to libel there is no such specific and precise definition of facts and circumstances to be found; that consequently it is difficult, if not impossible, to pronounce that any libel is, per se and exclusive of all circumstances, libellous; that its libellous character must depend upon intent and tendency, the one and the other being matters of fact." This precise and elegant statement of the law was supported by a luminous argument reviewing the whole law of libel and its history, showing that it was the ancient law, and that Mr. Fox's act was declaratory merely. It received the full assent. of Kent, afterwards Chancellor, whose opinion contains a most elaborate scrutiny of the doctrine of Lord Mansfield in King v. Woodfall, 20 State Trials, 895, and declares that he and the judges who followed him had "involved themselves in inconsistency and paradox; and I am induced to believe that it is a departure from the ancient, simple and true history of the trial by jury in criminal cases." Hamilton's Works, ed. 1886, vol. 7, p. 333; ed. 1851, vol. 7, p. 849; People v. Croswell, 3 Johns. Cas. 336, 365. 4. It may be assumed, therefore, that the phrase "freedom of the press," as employed in the First Amendment, imported that measure of liberty which permits, without previous restraint, the publication of any writing whatever, and without the restraint of any subsequent penalty, unless it should be found by a jury on a regular trial to be such a publication as the law then condemned as libellous. The immediate purpose and effect of the amendment was to place this great safeguard of liberty beyond the peril of the exercise even of the legislative power. 5. Having determined the import of the term "freedom of the press," as employed in the First Amendment, we are now prepared for the main inquiry whether the statute in question is a law abridging that freedom. That such is its character is very clear. That freedom includes not only the liberty of printing, but the liberty of publishing. The former would be empty Mr. Carter's argument for Petitioner. indeed without the latter. And the liberty of publishing must be coextensive with the liberty of printing. Publishing and circulating are admitted to be synonymous. Ex parte Jackson, supra. And what was the liberty of publishing, which existed at the time of the adoption of the Constitution? It was the liberty of circulating printed matter in all practicable and permissible forms, of which that by mail was by far the principal mode. It included letters, newspapers and packets. Does the statute in question abridge the freedom of circulation? We make no effort to conceal the embarrassment which attends any discussion of this question since the decision of this court in Ex parte Jackson, 96 U. S. 727. That the statute was within the powers of Congress, aside from any express restriction, it would seem, was silently assumed, rather than considered and determined by that decision; but the point that it was invalidated by the restriction seems to have been made and passed upon. We cannot, however, but think that it was inadequately presented, and this court has not been in the habit of placing a vital question of constitutional law beyond the reach of agitation until its merits have been thoroughly discussed. The attention of the court is, most respectfully, but earnestly, solicited to the following considerations which seem to demonstrate that the statute does abridge the freedom of circulation, and, by consequence, the freedom of the press. The meaning of the term "abridge" will surely not be disputed. It is not synonymous with destroy, deprive or take wholly away. It means to shorten, to curtail, to contract, to diminish. The principal, if not the only mode of circulating, at the time of the adoption of the Constitution, such printed matter as newspapers, pamphlets and circulars, was by mail. It has always been so, and must become more and more so as society advances. We submit it to candid minds to say whether the freedom of circulating printed matter, which is admitted to be synonymous with the freedom of the press, is shortened, curtailed, contracted, diminished or, in other words, abridged, when the natural, appropriate and principal means by which such matter may be circulated is absolutely taken away. Mr. Carter's argument for Petitioner. Under this statute no man can circulate a newspaper in any State except upon condition that he consents to forego the benefit to be derived from any such advertisement, although it may be entirely legal in such State. Of course the conditions may, if this be allowed, be extended to any other advertisement relating to any business or subject; and thus the power is directly asserted by this legislation of Congress to control the character of the whole newspaper press; for no one will pretend that the publication of newspapers is possible, on any large scale, if the benefit of the mail service is denied to them. And still further: The statute creates a censorship. Had it forbidden only the depositing in the mail of the matter described, it might be urged that every one was at liberty to make such deposit, subject to the hazard of being indicted and punished, and, therefore, that there was no previous restraint. But the prohibition forbids the postmaster from delivering any such newspaper, circular, pamphlet or publication. It arrests publication, for it arrests the communication of the matter to the public, or to those for whom it is intended. And whether publication should be thus arrested is submitted to the judgment of a postmaster. This is a perfect restoration of the censorship. It may possibly be suggested that the purpose of the act in question is not in any manner to impair or abridge free discussion of any question, but to break up a certain business or certain practices. If such suggestion is designed to show that the statute is limited, or should be construed to be limited, to such acts as are parts of some business transaction in relation to a lottery, it must be rejected. Whatever is fairly embraced within the language of the act must be deemed to have been intended by it. Courts cannot cut down the scope of an enactment as marked out by its language on the basis of a supposal that Congress must be deemed to have intended only what was constitutional and reasonable. This may be done. when the language employed suggests a doubt, but is quite inadmissible where the doubt is whether the legislature has power to do what it has plainly attempted. Courts cannot legislate. Mr. Carter's argument for Petitioner. Our argument in no manner involves the consequence that the existing legislation of Congress, excluding obscene books and pictures from the mails, is invalid, as abridging the freedom of speech. It will be perceived upon referring to the observations concerning this legislation herein before made, that the power and the duty of Congress to refrain from so exercising its express powers as to facilitate the commission of crime was distinctly admitted. What was denied was that Congress had the power to exclude matter as being criminal which was not criminal per se, which was not regarded as criminal at the time of the adoption of the Constitution, which was then permitted, if not encouraged, in most, if not all the colonies, was still permitted and protected in some of the States, and over which, as being criminal or innocent, Congress had no direct power whatever. Our statute making the circulation by mail of such matter a penal offence, follows rigidly the principle which governs such indictments. There must be a jury trial, and the question whether the books or pictures are obscene-in other words, whether they are libellous is always an issue of fact determinable by the jury alone. But if Congress had undertaken to describe and condemn particular books or publications as promotive of murder, arson or any other crime, or as being obscene, and make the circulation of those a penal offence, thus taking away from the jury the determination of the question of their guilty tendency, the prohibition contained in the First Amendment would have been distinctly violated. It is precisely here that the legislation under notice exhibits its vice. It leaves to no jury the power to determine whether any publication relating to a lottery - a remonstrance against them, an argument for them, an advertisement of them, any expression of views concerning them—is of evil design and tendency. If the matter relates to lotteries, proof of mailing is enough. All else is a question of law and the jury must convict. III. It is very respectfully submitted that the consideration and decision of the questions herein discussed should not be embarrassed by the judgment in Ex parte Jackson, 96 U. S. 727. The question whether Congress could exercise a power |