Opinion of the Court.

another is a sufficient publication to bring a letter within the statute, as is held to be the case in an action of slander and libel.

The reply to this is, that the statute prohibits the conveyance by mail of matter which is a publication before it is mailed, and not such as becomes a publication by reason of its being mailed.

Another argument on which indictments of this character have been sustained by some of the Circuit Courts is, that a reasonable construction must be given the statute, and, it being evident that Congress intended to exclude anything of an obscene character from the mails, it is immaterial whether the thing prohibited is inside or outside of an envelope, and therefore unreasonable to hold that Congress intended not to allow a decent writing in an obscene envelope, but at the same time to allow obscene writing in a proper envelope. We recognize the value of the rule of construing statutes with reference to the evil they were designed to suppress as an important aid in ascertaining the meaning of language in them which is ambiguous and equally susceptible of conflicting constructions. But this court has repeatedly held that this rule does not apply to instances which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress. United States v. Sheldon, 2 Wheat. 119; United States v. Wiltberger, 5 Wheat. 76, 95; United States v. Morris, 14 Pet. 464, 475; United States v. Hartwell, 6 Wall. 385; United States v. Reese, 92 U. S. 214. But we cannot concede that the policy of the statute was so sweeping as the argument assumes. We think that its purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence from examination. Ex parte Jackson, 96 U. S. 727. This object seems to have been accomplished by forbidding the use of the mails to books, pamphlets, pictures, papers, writings and prints, and other publications of an indecent nature, and also to private letters and postal cards whereon the indecent matter

Opinion of the Court.

is exposed to the inspection of others than the person to whom the letter is written.

Ashurst, J., said in Jones v. Smart, 1 T. R. 51: "It is safer to adopt what the legislature have actually said than to suppose what they meant to say." In the Queensborough Cases, 1 Bligh, 497, Lord Redesdale said: "The proper mode of disposing of difficulties arising from a liberal construction is by an act of Parliament, and not by the decision of court." Congress seems to have acted upon this idea; and if further argument were needed in support of our view, it will be found, we think, in the fact that in an amendment to this statute passed September 26, 1888, 25 Stat. 496, c. 1039, for the first time in the history of the postal service the word "letter" was included in the list of articles made non-mailable by reason of their obscene, lewd, lascivious or otherwise improper character. If letters were embraced in the statute on which this indictment was founded, why did Congress consider it necessary to insert the specific word to designate them in 1888? It must be that that body did not put the construction on the prior statute claimed in behalf of the United States, else we have it doing a useless and vain act. But as the amendment of 1888 is not involved in this case, no opinion is expressed as to whether the term "letter," as used therein, can, under a proper construction of that statute, be held to include a strictly private sealed letter.

With reference to the argument that the word "writing" occurs, in the legislation on this subject, as an amendment, we have only to remark that the entire history of that legislation, so far from forming a basis for a different construction of this act, confirms it.

For the reasons above given our answer to the first question certified is in the negative. This being decisive, we need not consider the second question; and the third, as has been repeatedly held, is too general to be the subject of a Certificate of Division.

Opinion of the Court.

IN RE MILLS, Petitioner.

ORIGINAL.

No. 4. Original. Submitted April 3, 1890.- Decided April 28, 1890.

The words "punishable by imprisonment at hard labor" in the act of March 1, 1889, 25 Stat. 783, c. 333, "to establish a United States court in the Indian Territory, and for other purposes," embrace offences which, although not imperatively required by statute to be so punished, may, in the discretion of the court, be punished by imprisonment in a penitentiary. Where a statute of the United States prescribing a punishment by imprisonment does not require that the accused shall be confined in a penitentiary, a sentence of imprisonment cannot be executed by confinement in a penitentiary, unless the sentence is for a period longer than one year. A judgment of a district court sentencing a prisoner who had pleaded guilty to two indictments, for offences punishable by imprisonment, but not required to be in a penitentiary, to imprisonment in a penitentiary, in one case for a year and in the other for six months, is in violation of the statutes of the United States.

HABEAS CORpus. On the 4th of November, 1889, Mr. Van H. Manning presented a petition for the writ. Leave was granted, November 11th, and a rule to show cause issued, returnable on the first Monday of December then next. Return was made, and on the 5th of December leave was granted to proceed in formâ pauperis, and on the 3d of April the petition for the writ was filed and submitted.

Mr. Van H. Manning and Mr. Thomas Marcum for the petitioner.

Mr. Assistant Attorney General Maury opposing.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is an original application to this court for a writ of habeas corpus. Leave to file the petition having been given, a rule was granted against the warden of the State Penitentiary at Columbus, Ohio, in which the petitioner was imprisoned, requiring him to show cause why the writ should not be

Opinion of the Court.

issued. The return to that rule shows that the petitioner was received by the respondent, August 1, 1889, from the marshal of the United States for the Western District of Arkansas, pursuant to a judgment of the District Court of the United States for that district, sentencing the prisoner to confinement in that penitentiary.

It appears that the prisoner was charged by indictment in the District Court of the United States for the Western District of Arkansas with the offence of having, on the 7th day of July, 1889, "at the Creek Nation, in the Indian country," within that district, unlawfully engaged in and carried on the business of a retail liquor dealer without having first paid the special tax required by law. The indictment was based upon section 3242 of the Revised Statutes, providing that "every person who carries on the business of a retail liquor

dealer, . without having paid the special tax as required by law, shall, for every such offence, be fined not less than one thousand dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than two years." Upon a plea of guilty, the court adjudged that the accused be imprisoned in the Ohio State Penitentiary, at Columbus, for the term and period of one year, and pay to the United States a fine of one hundred dollars, and its costs in the prosecution expended.

It also appears that the petitioner was charged by indictment in the same court with the offence of having on the 7th of July, 1889, "at the Creek Nation, in the Indian country," unlawfully introduced into that country, in said district, spirituous liquors, to wit, one gallon of whiskey. That indictment was based upon section 2139 of the Revised Statutes, providing: "No ardent spirits shall be introduced, under any pretence, into the Indian country. Every person who sells, exchanges, gives, barters or disposes of any spirituous liquor or wine to any Indian, under the charge of any Indian superintendent or agent, or introduces or attempts to introduce any spirituous liquor or wine into the Indian country, shall be punishable by imprisonment for not more than two years, and by a fine of not more than three hundred dollars." Rev. Stat.

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§ 2139, as amended by the act of Feb. 27, 1877, 19 Stat. 244, c. 69. Upon a plea of guilty, it was adjudged that the accused be imprisoned in the same penitentiary for the period of six months, and pay to the government a fine of fifty dollars, together with its costs; also, that this term of imprisonment commence and date from the expiration of the term of one year, for which he was sentenced in the other case.

The petition for the writ of habeas corpus proceeds upon the ground that the court which passed the above sentences was without jurisdiction of the offences charged, and that sole and exclusive jurisdiction thereof was in the court established by the act of Congress, passed March 1, 1889, entitled, "An act to establish a United States court in the Indian Territory, and for other purposes." 25 Stat. 783, c. 333. This question will be first examined.

As the country lying west of Missouri and Arkansas known as the Indian Territory was within the Western District of Arkansas when the above act of March 1, 1889, was passed, and as the district courts have jurisdiction of all crimes and offences cognizable under the authority of the United States, and committed within their respective districts, Rev. Stat. §§ 533, 563, it cannot be disputed that the court below had jurisdiction of the offences charged against the petitioner, unless its jurisdiction was taken away by the act establishing a court in the Indian Territory. That act establishes "a United States court" with jurisdiction extending over the Indian Territory, bounded on the north by Kansas, on the east by Missouri and Arkansas, on the south by Texas, and on the west by Texas and the Territory of New Mexico. Its criminal jurisdiction is thus declared in the fifth section of the act: "That the court hereby established shall have exclusive original jurisdiction over all offences against the laws of the United States committed within the Indian Territory as in this act defined, not punishable by death or by imprisonment at hard labor." As the offences charged against the petitioner were offences against the United States, and were committed in the Indian Territory, the question as to the jurisdiction of the court established by this act depends upon the meaning that may