  1 The Federalist, No. 42. 2 Story, Commentaries on the Constitution, vol. iii, p. 22. 3 Story, Commentaries on the Constitution, vol. iii, p. 26. 4 In Re Debs, 158 U.S. 564 (1895). 5 Hemmeon, The History of the British Post Office, p. 3 ff. 6 Mass. Historical Collections, 3d Series, vol. vii, p. 48; quoted by Mary E. Wooley in her monograph on “Early History of the Colonial Post Office,” Publications of the Rhode Island Historical Society, New Series, vol. i, p. 270 ff. 7 Hemmeon, p. 32; Joyce, The History of the Post Office from its Establishment down to 1836, p. 196. 8 Wooley, Early History of the Colonial Post Office, p. 275; Hemmeon, p. 33. See also Pliny Miles, “History of the Post Office,” American Bankers’ Magazine, n. s., vol. vii, p. 358 (November, 1857). 9 Miles, p. 361. 10 American Archives, Fourth Series, vol. i, pp. 500–504. 11 Ibid., vol. ii, p. 536 ff. 12 See Jameson (Ed.), Essays in Constitutional History, p. 168 ff. 13 Journals of the Continental Congress (edited by Ford), ii, p. 71. (References up to 1781 are to this edition, Washington, 1904.... Since the sixteenth volume, the editor has been Gaillard Hunt.) 14 Ibid., vol. ii, p. 208. 15 Ibid., vol. iii, p. 342; vol. iv, p. 43. 16 Ibid., vol. iii, p. 488. In the discussion referred to Paine remarked that the “ministerial post will die a natural death; it has been under a languishment a great while; it would be cowardice to issue a decree to kill that which is dying; it brought but one letter last time and was obliged to retail newspapers to pay its expenses.” Lee was more facetious, saying: “Is there not a Doctor, Lord North, who can keep this creature alive?” On December 25, 1775, it was announced that incoming mail would not be sent to the various colonies but would be held in New York and advertised. 17 Journals of the Continental Congress, vol. v, pp. 719, 720; vi, p. 926. 18 Ibid., vol. vi, p. 931. 19 Ibid., vol. vii, p. 29. 20 Ibid., p. 153. 21 Journals of the Continental Congress, vol. vii, pp. 258, 347; ix, 816, 817, 898; xi, 550. 22 Ibid., vol. v, p. 551. 23 Ibid., pp. 681, 682; ix, 907. In the second draft the postal clause comes under Article 14 and in the final draft under Article 9. 24 Journals of the Continental Congress, vol. xi, p. 652. The vote stood, Ayes, 2; Noes, 9. 25 Ibid., vol. xv, p. 1411. 26 7 Journals of Congress (Ed. of 1800), 383. 27 7 Journals, 383 ff. Special messengers and expresses were exempted from this provision at the discretion of the postmaster general. 28 8 Journals, 40, 131, 193; 9 Journals, 130. 29 9 Journals, 15, 147. 30 9 Journals (App.), 10. 31 11 Journals, 154, 191. 32 Congress approved the action of the postmaster general in directing his deputies not to receive the paper money of any state for postage, and to accept only specie. He was also authorized to demand payment in advance. 11 Journals, 84, 164. 33 12 Journals, 137. 34 Farrand, Records of the Federal Convention, vol. ii, p. 135. 35 This is the draft as reconstructed by Professor Farrand (vol. iii, pp. 604, 607), but the document sent by Pinckney in 1819 to John Quincy Adams for publication in the journal, omitted the last clause. This draft, however, was written not very long before 1819, and was not presented to the Convention in 1787. See Records, vol. iii, p. 595 ff; “Sketch of Pinckney’s Plan for a Constitution, 1787,” in American Historical Review, vol. ix, p. 735, and Bancroft, History of the Constitution, vol. i, p. 258. 36 Farrand, vol. i, p. 243. 37 Ibid., vol. ii, p. 177 38 Ibid., p. 303. New Hampshire, Connecticut, New Jersey, Pennsylvania and North Carolina were opposed. Rhode Island and New York did not vote. The other states were in favor. 39 Ibid., p. 324. 40 Constitution, Art. I, Sec. 8, Clause 7; Farrand, vol. ii, p. 590. 41 Farrand, vol. ii, p. 615. 42 Farrand, vol. ii, p. 615. 43 The vote on the motion was 8 to 3 (New Hampshire, Connecticut, Massachusetts, New Jersey, Delaware, Maryland, North Carolina, and South Carolina opposed; Pennsylvania, Virginia, Georgia in favor). This incident in the Federal Convention was to figure in the congressional debates over the incorporation of banks and the construction of postroads. Opinions have differed as to whether the action of the Convention may be said to show that the Constitution did not contemplate the exercise by Congress of a power to incorporate. Madison’s record says: “Mr. King thought the power unnecessary.... Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks, he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.” Farrand, vol. iii, p. 615. Madison’s later opinion (1824) was that a general power to incorporate had been negatived. Ibid., p. 463. 44 Jefferson’s Anas in T.J. Randolph, Memoir, Correspondence ... of Thomas Jefferson, vol. iv, p. 506. 45 Pomeroy, Constitutional Law, p. 264. 46 See Brown, The Commercial Power of Congress, p. 132. 47 Elliot’s Debates, vol. ii, p. 406. 48 See Moore, American Eloquence, vol. i, p. 349. 49 Art., “Postoffice,” Lalor, Cyclopaedia of Political Science, vol. iii, p. 310. 50 1 Stat. L. 70. 51 This act was limited to August 12, 1790. On August 4, 1790, it was continued until March 4, 1791; on March 3 until February 20, 1792, when Congress passed “An Act to establish the postoffice and postroads in the United States.” 1 Stat L. 178, 218, 232. 52 For example, Gideon Granger, postmaster general, wrote in 1810: “From the nature of our government it becomes a matter of the highest importance to furnish the citizens with full and correct information, and, independent of political considerations, the interests of society will be best promoted, particularly in the interior, by extending to it the facilities of this office. Nor can the seaboard complain as it puts a profit on all that the interior produces for exportation, and on all it consumes from foreign countries.” American State Papers (Postoffice), vol. xv, p. 42. 53 Williams, The American Postoffice, p. 20 (61st Congress, 2d Sess., Sen. Doc. No. 542). 54 Richardson, Messages and Papers of the Presidents, vol. ii, p. 215. 55 Ibid., p. 311. 56 Ibid., p. 419. 57 Williams, p. 25. 58 2 Stat. L. 592, and 1 Stat. L. 733. 59 Learned, The President’s Cabinet, p. 231. See also U.S. v. Kendall, 5 Cranch (U.S.C.C., 1837), 275. 60 Bassett, Life of Andrew Jackson, vol. ii, p. 413. “... in introducing the postmaster general into the cabinet, Jackson began a practice that probably tended, in the long run, to invigorate the workings of the postal establishment, notwithstanding the fact that Barry, successor to McLean in the office, made a conspicuously dismal record.” Learned, p. 250. 61 Below, Chapter III. 62 See Haney, Congressional History of Railways, p. 319 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. iii). 63 10 Congressional Debates, 1752. 64 Haney, p. 323. 65 48th Cong., 2d Sess., Sen. Exec. Doc. No. 40. 66 16 Stat. L. 115; 17 Stat. L. 309. 67 Haney, p. 206 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. vi). 68 23 Stat. L. 156. 69 See Postal Laws and Regulations of 1913, Title X, “Transportation of the Mails,” p. 607 ff. 70 See 43d Cong., 1st Sess., Sen. Rep. No. 478. This point is developed below, p. 151 ff. 71 5 Stat. L. 733. 72 9 Stat. L. 202. 73 10 Stat. L. 38. 74 23 Stat. L. 387. For further details of the special privileges granted periodicals, see Report of the Commission on Second Class Mail Matter (1912), p. 57 ff. 75 37 Stat. L. 557. “That hereafter fourth class mail matter shall embrace all other matter, not now embraced by law, in either the first, second, or third class, not exceeding eleven pounds in weight, or greater in size than seventy-two inches in girth and length combined, nor in form or kind likely to injure the person of any postal employee or damage the mail equipment or other mail matter, and not of a character perishable within a period reasonably required for transportation and delivery” (Sec. 8). These limits have been, and will be, raised from time to time. 76 But see Bodley, “The Post Office Department as a Common Carrier and Bank,” 18 American Law Review, 218 (1884). 77 See Williams, passim. 78 Reports of the Postmaster General, 1841–1845. 79 “It might be easily shown, for instance, that the power over the mails is limited to the transmission of intelligence, and that Congress cannot, consistently with the nature and object of the power, extend it to the ordinary objects of transportation, without a manifest violation of the Constitution, and the assumption of a principle which would give the government control over the general transportation of the country, both by land and water.” Speech of John C. Calhoun. 12 Debates of Congress, 1142. See also 18 American Law Review, 218. 80 13 Stat. L. 76. 81 Report of the Postmaster General, 1864, p. 24. 82 28 Stat. L. 30. 83 See Reports of the Postmaster General, 1908–1911. 84 Postal Laws and Regulations of 1913, Title VIII, “Money Order System,” p. 529 ff. 85 Congressional Globe, 38th Cong., 1st Sess., pp. 1694, 1771, 1861. 86 Act of June 25, 1910; 36 Stat. L. 814. A system had been recommended by postmasters general in 1871–1873, 1880–1882, 1887–1890, 1907–1909. See 61st Cong., 2d Sess., House Rept. No. 1445, and for Mr. Moon’s argument, ibid., Part 2. 87 Wilson v. Shaw, 204 U.S. 24 (1907). 88 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1877). 89 Davies, The Collectivist State in the Making, p. 39. 90 Below, Chapter VI. 91 Below, p. 80 ff. See also “The States and their Roads,” N.Y. Nation, August 20, 1914, and Bourne, “Practical Plan to Spend $3,000,000 for Public Roads,” N.Y. Times, May 11, 1913. 92 Annual Reports of the Department of Agriculture, 1914 (Report of the Chief of the Office of Markets). 93 Report of the Postmaster General, 1914, p. 8 ff. See also U.S. Department of Agriculture, Farmers’ Bulletins, inter alia, Nos. 594 and 611, and The National Parcel Post News (Washington), October 7, 1914, and weekly thereafter. 94 S. 5180, 63d Cong., 2d Sess. (April 8, 1914). 95 Wilson, “Uncle Sam; Employment Agent,” The Outlook, February 17, 1915, p. 395. 96 4 Wheat. 316 (1819). 97 See above, p. 19. 98 1 Stat. L. 232. 99 Changed to $50 by the act of May 8, 1794; 1 Stat. L. 354. 100 Changed by the act of March 2, 1799 (1 Stat. L. 733) to forty lashes and ten years imprisonment for the first offense, but death for the second offense, or if the carrier was wounded or his life put in jeopardy. In 1794 (1 Stat. L. 354) the penalty for stealing mail or letters from the postoffice was changed to fine and imprisonment and in 1799 to thirty lashes and two years imprisonment. 101 Act of March 3, 1797; 1 Stat. L. 509. 102 2 Stat. L. 592. 103 Act of March 3, 1825; 4 Stat. L. 122. 104 35 Stat. L. 1088, 1123. 105 “Where a letter carrier left a letter in the hall of the residence of the person to whom it was addressed, and the defendant opened it with intent to pry into the business and secrets of the owner” it was held to be a violation of the provision against taking mail before it reached the addressee, and the principle was laid down that the protection extends until the letters reach their destination by actual delivery to the persons entitled to receive them. U.S. v. McCready, 11 Fed. Rep. 225 (1882), citing U.S. v. Hall, 98 U.S. 343 (1878). 106 Act of August 24, 1912; 37 Stat. L. 554. See below, pp. 121, 164. 107 U.S. v. Wilson, 1 Baldwin (U.S.C.C.), 78 (1830). 108 U.S. v. Pearce, 2 McLean’s C.C.R. 14 (1839). 109 U.S. v. Mills, 7 Peters, 138 (1833). 110 U.S. v. Wood, 3 Wash. C.C.R. 440 (1818). See also U.S. v. Hardyman, 13 Peters, 176 (1839). 111 U.S. v. Thompson, 28 Fed. Cas. 97 (1846). But see “The Postoffice Monopoly,” 11 Law Reporter, 384 (January, 1849). In this paper the writer argues that the idea of a monopoly is not incidental to the postal grant and that the framers did not intend to make the postoffice a source of general revenue. The Constitution enumerates methods of raising funds and Expressio unius, exclusio alterius. Mr. Paterson’s plan as proposed to the Convention named the postoffice as a source of revenue, but his language was rejected. May the same, asks this writer, be said of his theory? (p. 396). And if the federal government has no such power it has no right of espionage and it may not say of what “mailable matter” consists (p. 397). 112 U.S. v. Kochersperger, 26 Fed. Cas. 803 (1860). “In a royal grant of the office of postmaster to foreign parts (July 19, 1632, XIX Rymer’s Foedera, 385) the monopoly is justified by the consideration ‘how much it imports to the state of the King and this realm that the secrets thereof be not disclosed to foreign nations, which cannot be prevented if a promiscuous use of transmitting or taking up of foreign letters and packets should be suffered,’” Freund, Police Power, p. 688, n. 113 Act of March 2, 1827; 4 Stat. L. 238; Niles’ Register, vol. xlvii, p. 120. Until 1827 newspapers could be carried privately, but by the act of this year an express exception hitherto existing was omitted. At the present time, of course, they may be carried outside of the mail. See Postal Laws and Regulations of 1913, p. 605. 114 4 Opinions of the Attorneys General, 349 (1844). If a passenger takes the letters without the knowledge of the carrier, the latter is not liable and no penalty is incurred by the person sending the letters; but if the practice is known by public advertisement the carrier will be liable and also the person employing agents to carry his mail. U.S. v. Hall, 26 Fed. Cas. 75 (1844). 115 U.S. v. U.S. Express Co., 5 Biss. 91 (1869). 116 U.S. v. Bromley, 12 How. 88 (1851). See also 4 Ops. 159 (1843). 117 4 Ops. 162. “By the now settled doctrine of this court” revenue statutes are “not to be construed like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.” U.S. v. Stowell, 133 U.S. 1 (1890). 118 9 Ops. 161 (1858); but see U.S. v. Kochersperger, above. 119 9 Stat. L. 591. 120 U.S. v. Kochersperger, above. While resting its decision on a literal interpretation of the statute, the court intimated that the public streets of a municipality were different from highways, and expressed doubt as to whether they could “be established by Congress as postroads for any other purpose than the carriage of the mail.” See below, p. 151. 121 Act of March 2, 1861; 12 Stat. L. 205. 122 Act of June 8, 1872; 17 Stat. L. 309. 123 Blackham v. Gresham, 16 Fed. Rep. 609 (1883). In 1872, citizens of Davenport, Iowa, were permitted to employ a private dispatch company to deliver within the city limits mail upon which no U.S. postage had been paid; this was allowed because the streets of the city had not been made postroutes. 14 Ops. 152. 124 U.S. v. Easson, 18 Fed. Rep. 590 (1883). 125 Rev. Stat. Sec. 3985; the italicised words were added by the Act of March 4, 1909; 35 Stat. L. 1124. See 21 Ops. 394 (1896); 28 Ops. 537 (1910), and 42 Cong. Rec., 973 ff. 126 21 Ops. 394. 127 29 Ops. 418 (1912). 128 U.S. v. Erie R. Co., 235 U.S. 513 (1915). It was held that the setting up of a post by a railroad car or steamboat was not within the act of 1827. “Since the passing of the postoffice laws new modes of conveyance have been established and a condition of things arisen not then known or contemplated. And the question is, whether new acts in contravention of the general spirit and policy of the laws, can be brought within any of its prohibitions, and subjected to a specific penalty. However willing the court might be to attain that end, it cannot strain or force the language used beyond its fair and usual meaning.” U.S. v. Kimball, 26 Fed. Cas. 782 (1844). 129 U.S. v. Sears, 55 Fed. Rep. 268 (1893). 130 U.S. v. Claypool, 14 Fed. Rep. 127 (1882). 131 U.S. v. Clark, 25 Fed. Cas. 443 (1877); see also In Re Grand Jury, 62 Fed. Rep. 840 (1894). 132 In Re Grand Jury, 62 Fed. Rep. 834 (1894). 133 Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. Rep. 803 (1894); but see U.S. v. Stevens, 27 Fed. Cas. 1312 (1877). 134 U.S. v. Debs, 65 Fed. Rep. 210 (1895). 135 In Re Debs, 158 U.S. 564 (1895). See also Fairlie, National Administration, p. 38; Cleveland, The Government in the Chicago Strike, passim, and 23 McClure’s Magazine, p. 227. 136 2 Stat. L. 592. 137 35 Stat. L. 1131. See Postal Laws and Regulations of 1913, p. 255. 138 Publications which violate copyrights granted by the United States cannot be mailed. In this case the postal power is used to make more effectual legislation which it was competent for Congress to enact. See Postal Laws and Regulations of 1913, p. 264. 139 13 Stat. L. 507; 17 Stat. L. 283, 302. 140 Postal Laws and Regulations of 1913, p. 264. 141 As to when one, who does not personally mail non-mailable matter, may be regarded as causing it to be deposited in the mails, see Demolli v. U.S., 144 Fed. Rep. 363 (1906); 6 L.R.A. n. s. 424, and note. Importation into the United States of obscene matter or articles of an immoral nature was forbidden by the act of March 2, 1857, 11 Stat. L. 168. 142 “For more than thirty years, not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law, we believe, has never been attacked.” Public Clearing House v. Coyne, 194 U.S. 497 (1904), but see Dunlop v. U.S., 165 U.S. 486 (1897), and U.S. v. Popper, 98 Fed. Rep. 423 (1899). 143 U.S. v. Chase, 135 U.S. 255 (1890). The statute applied to any “book, pamphlet, picture, writing, print, or other publication” of an obscene character. R.S. sec. 3893. The prosecution in the Chase case arose before the act of September 26, 1888, which the Court refused to consider, and which extended the inhibition to sealed letters. 25 Stat. L. 496. 144 Grimm v. U.S., 156 U.S. 604 (1895). The Chase case was followed by U.S. v. Wilson, 58 Fed. Rep. 768 (1893), which held that even under the act of 1888 “or other publication” were qualifying words which excluded letters, and by U.S. v. Warner, 59 Fed. Rep. 355 (1894); contra, U.S. v. Nathan, 61 Fed. Rep. 936 (1894), and U.S. v. Ling, 61 Fed. Rep. 1001 (1894). All doubt was removed by Grimm v. U.S. 145 Andrews v. U.S., 162 U.S. 420 (1896). 146 Swearingen v. U.S., 161 U.S. 446 (1896), Justices Harlan, Gray, Brown and White dissenting, followed in U.S. v. Moore, 104 Fed. Rep. 78 (1900); U.S. v. O’Donnell, 165 Fed. Rep. 218 (1908); U.S. v. Benedict, 165 Fed. Rep. 221 (1908), and Knowles v. U.S., 170 Fed. Rep. 409 (1909). 147 U.S. v. Dempsey, 185 Fed. Rep. 450 (1911). See also, “Exclusion of Certain Publications from the Mails,” Hearing before Committee on the Postoffice and Postroads, House of Representatives, February 1, 1915, p. 6. But the postmaster general in his Annual Report of 1914, p. 47, appears to think that the Swearingen case is still controlling. 148 Rosen v. U.S., 161 U.S. 29 (1896). 149 Reg. v. Hicklin, L.R. 3, Q.B. 360 (1868). 150 Knowles v. U.S., 170 Fed. Rep. 409 (1909); U.S. v. Bennett, 16 Blatch. 343 (1879), and U.S. v. Kennerley, 209 Fed. Rep. 119 (1913). 151 U.S. v. Boyle, 40 Fed. Rep. 664 (1889). 152 Postmaster General Blair in 1861 excluded from the mails twelve treasonable publications, “of which several had been previously presented by the grand jury as incendiary and hostile to constitutional authority.” Report of the Postmaster General, 1861, p. 584. In 1914 the postmaster at Greenville, Pa., threw out of the mail several thousand cards containing facsimile appeals over his signature by Colonel Roosevelt, calling upon all good citizens to oppose Senator Boies Penrose. The local postmaster held the cards to be defamatory, but his decision was reversed by the authorities at Washington. See N.Y. Sun, October 31, 1914. 153 See below, p. 158 ff. 154 Schroeder, Free Press Anthology, p. 171. See also his “Obscene” Literature and Constitutional Law. In The Unanswered Argument against the Constitutionality of the so-called Comstock Postal Laws, and for the Inviolability and Free and Equal Use of the United States Mail, T.B. Wakeman argues that Congress has no legislative power over the subject, and that “the power to suppress obscenity and indecency, together with all other crimes or offenses is one of the general powers reserved in the United States Constitution to the people and the states,” p. 30. 155 Patterson, Liberty of the Press, and Public Worship, p. 69. 156 Hoke v. U.S., 227 U.S. 308 (1913). See “Is Congress a Conservator of the Public Morals?”, 38 American Law Review, 194. 157 R.S. sec. 3894. 158 19 Stat. L. 90. 159 26 Stat. L. 465; see also 16 Ops. 5 (1878). 160 R.S. sec. 731, and Palliser v. U.S., 136 U.S. 257 (1890). This was a case where a letter was mailed in New York and addressed to a postmaster in Connecticut to induce him to violate his official duty. The District Court for the district of Connecticut was declared to have jurisdiction. 161 51st Cong., 1st Sess., Sen. Rep. No. 1579; see also House Rep. No. 2844. 162 8 Howard, 164 (1850). 163 Ex parte Jackson, 96 U.S. 727 (1878). 164 In Re Rapier, 143 U.S. 110 (1892). 165 “A Blow at the Freedom of the Press,” in 155 North American Review, p. 694. 166 Act of July 31, 1912; 37 Stat. L. 240. But see Keller v. U.S., 213 U.S. 138 (1908). 167 U.S. v. Bott, 24 Fed. Cas. 1204 (1873). 168 As to what constitutes a lottery see Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. 662 (1914); 52 L.R.A. n. s. 108, and note. 169 Postal Laws and Regulations of 1913, p. 267. 170 Public Clearing House v. Coyne, 194 U.S. 497 (1904). 171 See Brinton, “Some Powers and Problems of the Federal Administrative,” University of Pennsylvania Law Review, January, 1913, reprinted as 62d Cong., 3d Sess., Sen Doc. No. 1054. See also Pierce, Federal Usurpation, p. 335 ff. 172 Bates & Guild Co. v. Payne, 194 U.S. 106 (1904). 173 American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902). 174 Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 (1904). See also U.S. ex rel. Reinach v. Cortelyou, 28 App. D.C. 570 (1906), 12 L.R.A. n. s. 166, and note. 175 Statement of Hon. E.D. Crumpacker before the House of Representatives Committee on the Judiciary, May 25, 1906, in support of H.R. 16548. 176 Memorandum by the Assistant Attorney General for the Postoffice Department on Postal “Fraud Order” Law (1906). 177 “It must also be borne in mind that the idea of the fraud order law is not punitive, but is simply protective. It is to prevent the use of the mails to defraud the public. The theory is that by the stopping of the mail privileges in the initiating stages of the fraud, the consummation of the scheme will be prevented. It would be utterly impossible to fulfill this purpose by a trial in court, for the necessary legal evidence could not generally be obtained until the scheme had run its course.” Ibid., p. 6. 178 Final Report of the Joint Commission on the Business Method of the Postoffice Department and the Postal Service (December 17, 1908), 60th Cong., 2d Sess., Sen. Rep. No. 701, chap. 4, secs. 90–99. 179 American State Papers, vol. xv (Postoffice), p. 28. 180 1 Stat. L. 233. 181 Lalor, Encyclopaedia of Political Science, vol. ii, p. 556. 182 1 Stat. L. 251. 183 Richardson, vol. i, p. 66. 184 Ibid., pp. 83, 107. 185 Correspondence and Public Papers of John Jay (Ed. Johnston), vol. iii, p. 407. 186 Jefferson, Writings (Ed. Ford), vol. vii, p. 63. 187 In the discussion of this undertaking and its relation to the postoffice clause of the Constitution, I have derived much assistance from Professor J.S. Young’s “A Political and Constitutional Study of the Cumberland Road” (University of Chicago Press, 1904), although this only incidentally considers the inquiry which my essay attempts. 188 Gallatin, Writings (Ed. Adams), vol. i, p. 76; Letter to William B. Giles, chairman of the House of Representatives Committee for admitting the North Western Territory into the Union. 189 The proposed road fund of 10 per cent., however, was by the act which Congress passed on March 3, 1803, reduced to 5 per cent. with some restrictions as to expenditure within the state. 2 Stat. L. 226. 190 2 Stat. L. 357; Act of March 29, 1806. 191 Young, The Cumberland Road, 21. 192 Laws of Maryland, 1802–1804, ch. 115. 193 Miscellaneous State Papers, vol. i, p. 474; Young, The Cumberland Road, p. 41. 194 2 Stat. L. 397, 516. 195 On August 31, 1806, Jefferson wrote to Gallatin, commenting on the latter’s plan for internal improvements, with a word of suggestion as to branches, “if it be lawful and advisable to extend our operations to them.” Jefferson, Writings (Ed. Ford), vol. viii, p. 466. 196 Richardson, vol. i, p. 409; Jefferson, vol. viii, p. 494. 197 Richardson, vol. i, p. 456; Jefferson, vol. ix, p. 224. 198 2 Stat. L. 357, 397. 199 A convenient list of these and of later laws is to be found in E.C. Nelson, “Presidential Influence on the Policy of Internal Improvements,” Iowa Journal of History and Politics, vol. iv, App. A (p. 53 ff). 200 The Federalist, No. 14. 201 Annals of 4th Congress, 1st Sess., pp. 297, 314. A bill authorizing the survey passed the House on May 20. Ibid., p. 1415. 202 2 Stat. L. 555, 661, 668, 670, 730, 829; 3 Stat. L. 206, 282, 315, 318, 377. 203 Richardson, vol. i, p. 567. 204 Richardson, vol. i, p. 576; see Farrand, vol. iii, p. 463. 205 Miscellaneous State Papers, vol. i, p. 741. 206 Annals of 11th Congress, vol. ii, pp. 1401, 1443. 207 Calhoun, Works, vol. ii, p. 193. 208 See below, p. 75. 209 Annals of 14th Congress, 2d Sess., p. 191. 210 Ibid., pp. 177, 191. 211 Richardson, vol. i, p. 585; Mason, The Veto Power, p. 95. Jefferson wrote in 1817 that the President’s veto was on “sound grounds; that instrument not having placed this among the enumerated objects to which they are authorized to apply the public contributions,” and called the veto “a fortunate incident.” Jefferson, Writings (Ed. Ford), vol. x, pp. 81, 91. 212 Richardson, vol. i, p. 585. 213 As late as 1830 Madison wrote: “I observe that the President, in his late veto, has seen in mine of 1817, against internal improvements by Congress, a concurrence in the power to appropriate money for the purpose. Not finding the message which he cites, I can only say that my meaning must have been unfortunately expressed or is very strangely misinterpreted. The veto on my part certainly contemplated the appropriation of money as well as the operative and jurisdictional branches of the power. And, as far as I have reference to the message, it has never been otherwise understood.” Letters and Other Writings of James Madison, vol. iv, p. 86. 214 Before his annual message Monroe wrote to Madison: “The question respecting canals and roads is full of difficulty, growing out of what has passed on it. After all the considerations I have given it, I am fixed in the opinion, that the right is not in Congress, and that it would be improper in me, after your negative, to allow them to discuss the subject and bring in a bill for me to sign in the expectation that I would do it. I have therefore decided ... to recommend the procuring of an amendment from the states, so as to vest the right in Congress.” Writings of James Monroe, vol. vi, p. 32. Madison replied, approving this course. “The expediency of vesting in Congress,” he said, “a power as to roads and canals, I have never doubted, and there has never been a moment when such a proposition to the states was so likely to be approved.” Letters ... of James Madison, vol. iii, p. 50. 215 Richardson, vol. ii, p. 18. 216 Annals of 15th Congress, 1st Sess., vol. i, p. 451. 217 Annals of 15th Cong., 1st Sess., vol. ii, p. 1366. 218 Annals of 15th Cong., 1st Sess., vol. i, p. 1173. On April 27, 1816, Congress appropriated money “for the purpose of repairing and keeping in repair” certain roads under the direction of the Secretary of War. 3 Stat. L. 315. On May 20, 1826, provision was made for the repair of a postroad under the direction of the postmaster general. 4 Stat. L. 190, 154. No mention was made of the consent of the states. 219 Annals of 15th Congress, 1st Sess., vol. i, p. 1169. 220 Annals of 15th Cong., 1st Sess., vol. ii, p. 1380 ff. 221 Ames, The Proposed Amendments to the Constitution of the United States during the First Century of its History, p. 20. (Report of the American Historical Association, 1896.) 222 Annals of 15th Congress, 1st Sess., vol. i, pp. 211, 292; Ames, p. 260. Martin Van Buren while in the Senate urged a similar amendment (1824–1825) and there were others who proposed like resolutions. Ames, p. 261. 223 See above, p. 67. 224 Annals of 15th Congress, 2d Sess., pp. 544, 2443. 225 3 Stat. L. 412, 426, 500, 560, 604, 728. 226 Richardson, vol. ii, p. 142. Monroe’s veto was not unexpected. He had sounded a warning in his annual message of 1822 when he said that a power to execute a system of internal improvements, “confined to great national purposes and with proper limitations, would be productive of eminent advantage to our Union,” and thus “thought it advisable that an amendment of the Constitution to that effect should be recommended to the several states.” Ibid., vol. ii, p. 191. 227 1 Willoughby on the Constitution, 588. As late as 1827 Madison wrote to Monroe concerning the Cumberland Road: “I cannot assign the grounds assumed for it by Congress, or which produced his [Jefferson’s] sanction. I suspect that the question of constitutionality was but slightly, if at all, examined by the former, and that the executive consent was doubtingly and hesitatingly given. Having once become a law and being a measure of singular utility, additional appropriations took place of course under the same administration, and with the accumulated impulse thus derived, were continued under the succeeding one, with less critical investigation, perhaps, than was due to the case.” Madison, Works, vol. iii, p. 55. 228 The validity of Monroe’s argument is treated below, p. 81. Perhaps it may not be amiss to add that I have not attempted an exhaustive consideration of congressional activity in respect to road construction. This has been done by Nelson, Presidential Influence on the Policy of Internal Improvements, and Young, A Political and Constitutional Study of the Cumberland Road. There are also excellent and less specialized accounts in Babcock, The Rise of American Nationality, ch. xv, Turner, The Rise of the New West, ch. xiii (American Nation, vols. 13 and 14), and Schouler, History of the United States, vol. iii. My sole purpose has been to treat congressional action and presidential opinion from their constitutional aspects in relation to the power to establish postoffices and postroads. 229 4 Stat. L. 71; for the list of appropriations, see Nelson, p. 57; see also Lalor, Cyclopaedia of Political Science (Internal Improvements), vol. ii, p. 568. 230 Richardson, vol. ii, p. 281. 231 Mason, The Veto Power, pp. 143, 145. 232 Richardson, vol. ii, p. 452. 233 Ibid., vol. ii, p. 492. 234 Richardson, vol. iii, p. 119; Bassett, Life of Andrew Jackson, vol. ii, pp. 483–495. 235 12 Stat. L. 334. 236 See also Act of July 1, 1862; 12 Stat. L. 489. 237 37 Stat. L. 552. 238 Sloane, Party Government in the United States of America, p. 316. 239 Public, No. 69, 63d Congress; Act of March 12, 1914. See also 63d Cong., 1 Sess., S. Rept. No. 65; 63d Cong., 2d Sess., H. Rept. No. 341, and Weems, “Government Railroads in Alaska,” North American Review, April, 1914. 240 Richardson, vol. ii, p. 555. 241 4 Wheat. 316 (1819). 242 In his Commentaries, Story devotes twenty pages to an exposition of both sides of the controversy and concludes: “The reader must decide for himself, upon the preponderance of the argument.” Vol. iii, p. 46. The incident of submitting the message to the Supreme Court is given in detail by Schouler, History of the United States, vol. iii, p. 254 ff. As to advisory opinions, see 1 Willoughby on the Constitution, 13, and Thayer, Cases on Constitutional Law, vol. i, p. 175. 243 2 Stat. L. 275, 277. In 1810 the postmaster general was given authority to “provide for the carriage of the mail on all postroads that are or may be established by law,” and to “direct the route or road, when there are more than one between places designated by law for a postroad, which route shall be considered as the postroad”; and the lines designated in contracts for carrying the mail were to be considered postroads within the provisions of the act. 2 Stat. L. 592. But in 1825 while the authority of the postmaster general to designate different routes was continued, there was a further provision that in cases not covered by contracts, “the road, on which such mail shall be transported, shall become a postroad and so continue until the transportation thereon shall cease.” 4 Stat. L. 102. 244 Miscellaneous State Papers, vol. ii, p. 175. 245 Ibid., p. 205. 246 Ibid., p. 272. 247 Ibid., p. 301. See U.S. v. Hudson & Goodwin, 7 Cranch 32 (1812). 248 Young, The Cumberland Road, p. 79. 249 Laws of Pennsylvania, 1827–28, p. 500. 250 Richardson, vol. ii, p. 217. 251 18th Cong., 1st Sess., House Rept. No. 118. 252 Act of March 3, 1829; 4 Stat. L. 363. 253 Laws of Maryland, 1831–1832, ch. 55. 254 13 Congressional Debates, 1132. 255 24th Cong., 1st Sess., Sen. Doc. No. 196. 256 28th Cong., 1st Sess., Sen. Doc. No. 324, p. 7. 257 28th Cong., 2d Sess., Sen. Doc. No. 41, and 29th Cong., 2d Sess., Sen. Doc. No. 70. 258 Young, The Cumberland Road, p. 87. 259 Young, p. 98, and passim for an able account of the whole controversy over jurisdiction. I have here attempted to present only the points necessary for an understanding of the constitutional problems that the courts were called upon to consider. 260 Dickey v. Maysville, etc., Co., 7 Dana (37 Ky.) 113 (1838). 261 “Every postroad is a national road,” said the court. “So far as it is a postroad, it is as national as the Chesapeake Bay or the Mississippi River.” 262 Seabright v. Stokes, 3 Howard 151 (1845). 263 See also Neil v. Ohio, 3 How. 720 (1845), and Achison v. Huddleson, 12 How. 293 (1851). Congress, under an act approved February 25, 1867, granted the state of Oregon certain lands for the construction of a military road, with the reservation that it should be free for the passage of federal property, troops or mails. An incorporated company undertook construction of the road, but was not permitted to charge tolls. It was provided in the grant that bridges should be constructed to permit the use of the road by wagons. This was done by parties other than the road company, and when mail contractors paid them tolls they had a right of action for reimbursement from the feasor company. Schutz v. Dalles Military Road Co., 7 Or. 259 (1879). 264 Young, The Cumberland Road, p. 100. The question of state tolls on mail carriers will be treated in the chapter on “The Power of the States to Interfere with the Mails.” 265 “The government of the United States cannot construct a postroad within a state of this union without its consent; but Congress may declare, that is, establish, such a road already opened and made a public highway by the direct or indirect authority of the state.... The United States have the mere right of transit over these roads for the purpose of carrying the mail, and in case of obstructing this right their laws provide an adequate remedy.... The act of Congress making all railroads postroads means only such as have charters from the several states.” Cleveland, P. & A.R. Co. v. Franklin Canal Co., 5 Fed. Cas. 1044 (1853). 266 13 Stat. L. 365. 267 15 Stat. L. 124. 268 U.S. v. Inlots, 26 Fed. Cas. 482 (1873). See also Trombley v. Humphrey, 23 Mich. 472 (1871). and 1 Kent’s Comm. 268, Note A. 269 Kohl v. U.S., 91 U.S. 367 (1875). 270 5 Stat. L. 283. 271 Pennsylvania v. Wheeling Bridge Co., 18 How. 421 (1856); see also 13 How. 518 (1852). 272 12 Stat. L. 205. See Blackham v. Gresham, 16 Fed. Rep. 609 (1883), and U.S. v. Kochersperger, 26 Fed. Cas. 803 (1860), where it was said: “The public streets of a municipal town over which the mail may be carried in any of the routes established by Congress as postroads, are doubtless, postroads for the passage of the mail. Whether the streets of such a town can be established by Congress as postroads for any other purpose is questionable.... So far as the prohibition of private letter carrying within the limits of such a town may be concerned, the legislative power which is wanting under the head of postroads, may, perhaps, be incidental to the execution of the power to establish postoffices. If this be so, the point may be of little ultimate practical importance.” Blackham v. Gresham upheld the act of 1861. 273 See Postal Laws and Regulations of 1913, p. 605. 274 California v. Pacific Railroad Co., 127 U.S. 1 (1888). Cases involving these points will be treated in a later chapter on “The Extension of Federal Control over Postroads.” 275 Ex parte Jackson, 96 U.S. 727 (1878). 276 “Congress shall make no law ... abridging the freedom of speech or of the press.” An executive order, deriving its validity from an act of Congress would, of course, be illegal if abridging the liberty of the press, even though the act itself did not. 277 Von Holst, Constitutional History of the United States, vol. ii, p. 127. 278 The Origin and Growth of the American Constitution, p. 230. 279 Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). 280 Farrand, vol. ii, pp. 334, 341. 281 Ibid., pp. 617, 618; in Pinckney’s plan there was a limitation upon Congress to preserve the freedom of the press. Ibid., vol. iii, pp. 599, 609. A motion was made in the convention to appoint a committee to prepare a bill of rights and was unanimously rejected. Ibid., vol. ii, p. 582. 282 Farrand, vol. iii, 256; Elliot’s Debates, vol. iv, pp. 315, 316. Mr. Pinckney obviously overlooked the possibility that the freedom of the press might incidentally be limited through the exercise by Congress of one of its delegated powers, a possibility which became stronger when the doctrine of implied powers was developed. Particularly was this true in reference to postoffice regulations. 283 The Federalist, No. 84. In a footnote Hamilton scouts the idea that the liberty of the press may be affected by duties on publications which might be “so high as to amount to a prohibition.... We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country.” The extent of duties, if levied, “must depend on legislative discretion, regulated by public opinion.... It would be quite as significant to declare that the government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.” Newspapers were in fact taxed during the Civil War, and revenue to the amount of $980,089 was raised by this means. Lalor, Encyclopaedia of Political Science, (Art., “Press”), vol. iii, 321. Commenting upon Hamilton’s position, Story remarked: “The want of a bill of rights then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, ought not to receive this solemn sanction.” Story, Commentaries, vol. iii, p. 721. 284 Annals of 1st Congress, vol. i, p. 434. 285 Elliot’s Debates, vol. ii, p. 552; vol. iii, 659; Thorpe, Constitutional History, vol. ii, 204. 286 Cooley’s Blackstone, Book iv, pp. 151, 152. Lord Kenyon’s view was practically the same. He said: “A man may publish anything which twelve of his countrymen think is not blamable, but he ought to be punished if he publishes what is blamable.” Rex v. Cuthill, 27 St. Trials, 675. Cf. Professor Dicey’s classic statement: “Freedom of discussion is, then, in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.” Law of the Constitution (8th ed.), p. 242. 287 3 Johns. Cas. (N.Y.) 337 (1798); Hamilton’s Works (Lodge’s Ed.), vol. vii, p. 339. See the able analysis of Hamilton’s definition by Professor Schofield, “Freedom of the Press in the United States,” in Proceedings of the American Sociological Society, vol. ix, p. 67, at p. 88 ff. (1915). 288 Story, Commentaries, vol. iii, p. 732. To the same effect is Kent, Commentaries, vol. ii, lec. 24. A different contention, however, seems to have been made by Tucker, Blackstone’s Commentaries, vol. ii, App., Note G, pp. 11–30. 289 These cases will be considered later in this chapter. 290 Patterson v. Colorado, 205 U.S. 458 (1907). But see Mr. Justice Harlan’s dissent, Professor Schofield’s criticism of the majority opinion (Freedom of the Press in the United States, pp. 110–112), and Respublica v. Oswald, 1 Dall. 319 (1788). In U.S. v. Cruikshank, 92 U.S. 542 (1876), the court held: “The First Amendment to the Constitution ... like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the state governments in respect to their own citizens, but to operate upon the national government alone. ‘The scope and application of these amendments are no longer subjects of discussion here,’ They left the authority of the states just where they found it, and added nothing to the already existing powers of the United States.” Professor Schofield is of the opinion that the Slaughter House Cases, 16 Wall. 36 (1872), are authority for the principle that “the right to publish truth on matters of national public concern is one of the privileges and immunities of citizens of the United States protected from abridgment by any state by the first prohibition in the Fourteenth Amendment.” Freedom of the Press in the United States, p. 113. It was held in U.S. v. Hall, 26 Fed. Cas. 79 (1871), that “the right of freedom of speech, and other rights enumerated in the first eight articles of amendment to the Constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the Constitution, that Congress has the power to protect them by appropriate legislation.” See Lien, Privileges and Immunities of Citizens of the United States, p. 69. The Supreme Court in Patterson v. Colorado, above, refused to decide whether the liberty of the press declared in the First Amendment, is included by the word “liberty” in the Fourteenth Amendment. These questions, however, are outside the purview of the present discussion. 291 Patterson, Liberty of the Press, Speech and Public Worship, p. 61 ff.; 2 Willoughby on the Constitution, 844; and Townshend, Slander and Libel, 2d ed., sec. 252. 292 Schofield, Freedom of the Press in the United States, pp. 78, 79 and 110. 293 The freedom of the press had, of course, figured in the discussion of the so-called Sedition Act passed by Congress on July 14, 1798. It was a factor also in the consideration by the Senate (December, 1901) of legislation “to prevent the teaching and promulgation of anarchical doctrines in the United States.” See my paper, “Federal Interference with the Freedom of the Press,” 23 Yale Law Journal, 559 and authorities there cited. 294 Niles’ Register, vol. xlviii, p. 402. 295 Ibid., p. 403. 296 See Hurd, Law of Freedom and Bondage, vol. ii, 9, 10, 86, 97, 99, 147, 161, 170, 173. The Virginia law specifically included postmasters within its provisions. One indictment under the Alabama law was based upon the following objectionable language: “God commands, and all nature cries out, that man should not be held as property. The system of making men property has plunged 2,250,000 of our fellow countrymen into the deepest physical and moral degradation, and they are every moment sinking deeper.” Niles’ Register, vol. xlix, p. 358. 297 Niles’ Register, vol. xlviii, p. 447. 298 Niles’ Register, vol. xlviii, p. 448. 299 The legal aspects of this solution of the problem will be treated in the chapter following. 300 Statesman’s Manual, vol. ii, p. 911. 301 12 Debates of Congress, 26, 33. 302 Calhoun had for some time been interested in the problem, his attitude being indicated in September, when he wrote to the editor of the Washington Telegraph: “The indications are that the south will be unanimous in their resistance and that their resistance will be of the most determined character, even to the extent of disunion; if that should be necessary to arrest the evil. I trust, however, it may be arrested far short of such extremity.” Niles’ Register, vol. xlix, 49. 303 12 Debates of Congress, 383; Calhoun’s Works, vol. v, p. 191. 304 1 Stat. L. 596. 305 Italics are mine. 306 The subject has been given very adequate treatment by Mr. Henry Wolfe BilkÉ in his paper on “The Jurisdiction of the United States over Seditious Libel,” 50 American Law Register, 1. Mr. BilkÉ says: “The power to punish, for seditious libel, it is submitted, results to the United States, first from its inherent right to adopt such measures as are necessary for its self-preservation, and second, from its right to adopt such measures as are necessary to secure its officers in the due administration of their duties.” While it is the better view that Congress has no powers inherent in sovereignty (see 1 Willoughby on the Constitution, 66), the Supreme Court apparently rested its decisions in the Chinese Exclusion Cases [sub. nom. Chae Chan Ping v. U.S., 130 U.S. 581 (1888), and especially Fong Yue Ting v. U.S., 149 U.S. 698 (1892)] on a contrary theory. These cases furnish the authority for the first conclusion just quoted, while the case of In Re Neagle, 135 U.S. 1 (1889), is made the basis for the second reason why it is within the power of the United States to punish sedition. At the time of the passage of the act, it had not yet been decided that the federal courts possessed no common law criminal jurisdiction. U.S. v. Hudson & Goodwin, 7 Cranch 32 (1812). The Federalists maintained that such jurisdiction did exist, and that since sedition was a common law offence, Congress could make it statutory and thus aid the courts in its punishment. 307 Patterson, Liberty of the Press, etc., p. 61. Professor Schofield is of the opinion (Freedom of the Press in the United States, p. 87) that “Liberty of the Press as declared in the First Amendment and the English common-law crime of sedition cannot co-exist”; but certain it is, that without impairing the freedom of the press, Congress may punish seditious utterances counseling the use of force or unlawful means, and falsely defaming public officials. 308 The weight of authority upholds this view. See BilkÉ, op. cit.; 2 Willoughby on the Constitution, 845; Von Holst (Constitutional History, vol. i, 142) considers the law “unquestionably unconstitutional” and this opinion is supported by 2 Tucker on the Constitution, 669. Story (Commentaries, vol. iii, 744) declines to commit himself, but intimates that the law was valid. The chief objection, as I have said, was to the very broad terms of the act. 309 12 Debates of Congress, 383. Postmasters were further enjoined “to coÖperate, as far as may be, to prevent the circulation of any pamphlet” where it was forbidden by local laws. 310 Ex parte Jackson and Lewis Publishing Co. v. Morgan. 311 12 Debates of Congress, 1721. 312 Ibid., 1728. 313 12 Debates of Congress, 1724. 314 Ibid., 1149. As a matter of fact practically all of the state constitutions contained provisions guaranteeing the freedom of the press. There was, however, liability for abuse in Maine, Connecticut, New York, Pennsylvania, Delaware, Kentucky, Tennessee, Indiana, Illinois, Ohio, Mississippi, Alabama and Missouri. The other constitutions gave unrestricted freedom, subject, of course, to the common law exceptions. See Niles’ Register, vol. xlix, 236. 315 12 Debates of Congress, 1103. 316 Ibid., 1124. The House Committee on Postoffices and Postroads had the President’s message under consideration and “came to the conclusion by a vote of 6 to 3, in favor of the constitutionality and expediency of legislation, to restrain the mail circulation of these publications.” The majority, however, was unable to agree upon a bill. Ibid., 2944. 317 12 Debates of Congress, 1721. The analogy is noticeable between Calhoun’s bill and the Webb-Kenyon Act. The purpose of each was substantially the same,—to make state laws more effective. The latter simply excludes from interstate commerce intoxicating liquor intended to be used in violation of the law of destination, providing no penalties, and merely taking from the offender, when the state attempts to punish, his hitherto valid defense that the local authority was interfering with interstate commerce. See my papers, 1 California Law Review, 499 and 28 Harvard Law Review, 225. 318 Hoke v. U.S., 227 U.S. 308 (1913). 319 1 Stat. L. 73. 320 Golden v. Prince, 10 Fed. Cas. 542 (1814). 321 Cooley v. Port Wardens, 12 How. 299 (1851). 322 Act of Feb. 28, 1803; 2 Stat. L. 295. 323 Brig Wilson, 1 Brockenborough, 423 (1820). 324 Act of August 19, 1911; 37 Stat. L. 25. 325 Ex parte Siebold, 100 U.S. 371 (1879). 326 Hanover Bank v. Moyses, 186 U.S. 181 (1902). 328 Ex parte Jackson, 96 U.S. 733 (1878); italics are mine. 329 In re Rapier, 143 U.S. 110 (1892); 26 Stat. L. 465. 330 Champion v. Ames, 188 U.S. 321 (1902). See Goodnow, Social Reform and the Constitution, p. 83, and 2 Willoughby on the Constitution, 741. A flatfooted declaration that the liberty of the press is subject to police regulations concerning what is to be carried in the mails, would, I think, have been justifiable. But the holding of the Jackson case is different. 331 Schofield, Freedom of the Press in the United States, p. 82. 332 60th Cong., 1st Sess., Senate Doc. No. 426. The paper in question was undoubtedly anarchistic in its tendencies and certain of its sentiments were seditious libels. One editorial, for instance, contained the following: “Dynamite will help us to win. Two or three of us can deny a regiment of soldiers without fear.... Show no sympathy for any soldiers, even if they be sons of the people. As soon as we get hold of the police station, it is our victory. The thing is to kill the entire force.... We must get into the armory, and in case we cannot, then we will blow it down with dynamite.... We must set fire to three or four buildings in different locations ... and then start a fire in the center of the city.” 333 34 Stat. L. 908. 334 Rev. Stat. Secs. 3890, 5471. But is this illustration on all fours with the question of illegally excluding La Questione Sociale? Mr. Bonaparte mentions the fact that while the article “constitutes a seditious libel and its publication, in my opinion, is undoubtedly a crime at common law,” it is not an “offense against the United States in the absence of some federal statute making it one.” U.S. v. Hudson & Goodwin, 7 Cranch 32 (1812). 335 Act of March 4, 1911; 36 Stat. L. 1339. 336 In U.S. ex rel. Turner v. Williams, 194 U.S. 279 (1904), the Supreme Court held that the provisions of the immigration act of 1903 (32 Stat L. 1213) for the exclusion and deportation of alien anarchists did not violate any constitutional limitations and that the freedom of the press was not involved. “If the word ‘anarchists’ should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers innocent of evil intent, ... in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposed to all organized government.” 337 37 Stat. L. 553. 338 Lewis Publishing Company v. Morgan, 229 U.S. 288 (1913). Brief of Morris and Plante, p. 41. 339 Lewis Publishing Company v. Morgan, above. Another and more significant phase of this important case is treated in the last chapter of this study. 340 For an historical consideration of this amendment, see Boyd v. U.S., 116 U.S. 616 (1886). See also May, Constitutional History of England, vol. ii, p. 245 ff.; Cooley’s Blackstone, Book iv, p. 290 ff.; Annals of 1st Congress, vol. i, pp. 434, 754, and Story, Commentaries, vol. iii, p. 748. Discussions of the general scope of the provision are to be found in 2 Willoughby on the Constitution, 828; Cooley, Constitutional Limitations (7th ed.), p. 429, and Bruce, “Arbitrary Searches and Seizures as Applied to Modern Industry.” Green Bag, vol. xviii, p. 273. 341 Ex parte Jackson, 96 U.S. 727 (1878). 342 Ibid. But see Hoover v. McChesney, 81 Fed. Rep. 472 (1897). 343 25 Stat. L. 873. 344 Postal Laws and Regulations of 1913, p. 300. 345 Ibid., p. 313. 346 35 Stat. L. 1125. 347 Postal Laws and Regulations of 1913, p. 372 ff. 348 A third limitation on the postal power, namely, due process of law, is most properly treated in the concluding chapter of this essay. 349 Act of February 28, 1803, 2 Stat. L. 295; Brig Wilson, 1 Brockenborough 423 (1820). 350 32 Stat. L. 193; U.S. v. Green, 137 Fed. Rep. 179 (1905). 351 Criminal Code, sec. 242; Rupert v. U.S., 181 Fed. Rep. 87 (1910). 352 Act of August 8, 1890, 26 Stat. L. 313 (Wilson Act); Act of March 1, 1913, 37 Stat. L. 699 (Webb-Kenyon Act). 353 See 2 Willoughby, ch. xlii, and cases there cited. 354 There is also the question of state power over postroads, but this has been treated in Chapter III, above, p. 82 ff. 355 Miscellaneous State Papers, vol. ii (American State Papers, vol. xxi), p. 194. 356 American State Papers (Postoffice), vol. xv, p. 47. 357 2 Stat. L. 592. 358 4 Stat. L. 102. 359 American State Papers (Postoffice), vol. xv, p. 211. For the lengthy memorials presented, see ibid., pp. 229–241. 360 Ibid., p. 231. 361 Freund, Police Power, p. 168 ff. 362 American State Papers (Postoffice), vol. xv, p. 230. See an interesting article on this subject in the North American Review, July, 1830. 363 American State Papers (Postoffice), vol. xv, p. 358. 364 163 U.S. 299 (1896). “... legislative enactments of the states passed under their admitted police power, and having a real relation to the domestic peace, order, health and safety of their people, but which, by their necessary operation, affect to some extent, or for a limited time, the conduct of commerce among the states, are yet not invalid by force alone of the grant of power to Congress to regulate such commerce, if not obnoxious to some other constitutional provision or destructive of some right secured by fundamental law....” 365 Nelson v. State, 25 Texas App. 599 (1888). In some states express exemptions are made for the transportation of the mail. Cf. State v. Norfolk & W.R. Co., 33 W. Va. 440 (1890). A typical Sunday observance statute is the following: “No person whatsoever shall work or do any bodily labor on the Lord’s day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord’s day (works of necessity and charity always excepted)” (Public General Laws of Maryland (ed. of 1904), art. xxvii, sec. 384). The general proposition that the state regulations do not apply to postal employees is supported by Commonwealth v. Knox, 6 Mass. 76 (1809), which held that it is not an indictable offence for a carrier of the mail to travel on Sunday. This exemption was not applied to passengers, “nor may he [the carrier] blow his horn to the disturbance of serious people.” An indictment did lie, however, against the chief justice of Massachusetts and his associates for travelling on Sunday (1793). See “Sunday Laws,” in 2 American Law Review, 226. 366 U.S. v. Hart, 1 Peters’ C.C. 390 (1817). 367 5 Opinions of the Attorneys General, 554 (1852). 368 Illinois Central R. Co. v. Illinois, 163 U.S. 142 (1896). See also 143 Ill. 434; 19 L.R.A. 119 (1892). 369 Mississippi R. Commission v. Illinois C.R. Co., 203 U.S. 335 (1906). See also Atlantic Coast Line R. Co. v. Wharton, 207 U.S. 328 (1907). 370 U.S. v. Barney, 3 Hughes’ Reports (U.S.C. C) 545 (1810). 371 U.S. v. Harvey, 8 Law Reporter, 77 (U.S.C.C., 1845). 372 U.S. v. Kirby, 7 Wall. 482 (1869); see also U.S. v. Clark, 23 Int. Rev. Rec. 306 (U.S.D.C., 1877). 373 Penny v. Walker, 64 Maine 430 (1874). 374 U.S. v. McCracken, 3 Hughes’ Reports (U.S.C.C.) 544 (1878). 375 Harmon v. Moore, 59 Me. 428 (1871). 376 Lathrop v. Middleton, 23 Cal. 257 (1863). In this case, however, the boat was at the time in an unfinished condition and had not been used on the ferry. 377 3 Fed. Rep. 478 (1880). 378 United States v. Sears, 55 Fed. Rep. 268 (1893). In Turnpike Co. v. Newland, 15 N.C. 463 (1834), it was held that a mail coach was a “pleasure carriage” within the meaning of the local statute imposing tolls for the use of the road. The use of state facilities by persons employed in the federal civil service, said the court, “must be deemed intended to be on the terms prescribed to all persons, unless the law under which it is performed declared the contrary. We have found no act of Congress exempting persons or carriages engaged in the business of the postoffice from the payment of tolls for passing ferries, bridges or roads.” Payment was, therefore, required. 379 The seriousness of this conflict was well expressed by Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton 264 (1821). “To interfere with the penal laws of a state,” he said, “where they are not levelled against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure which Congress cannot be disposed to adopt lightly or inconsiderately. The motives for it must be serious and weighty. It would then be taken deliberately and the intention would be clearly and unequivocally expressed.” 380 See above, Chapter IV. 381 Hurd, Law of Freedom and Bondage, vol. ii, pp. 9, 10. 382 See above, p. 105. 383 Niles’ Register, vol. xlviii, p. 446. The Richmond resolutions were less elaborate, simply requesting the postmaster general “to use all powers vested in him by law” to prevent the dissemination and delivery of the objectionable matter. 384 Niles’ Register, vol. xlix, p. 7. 385 Niles’ Register, vol. xlix, p. 9. 386 8 Opinions of the Attorneys General, 489 (1857); 5 Stat. L. 80. 387 Mr. Cushing argued (p. 494) that “it cannot be unlawful to detain that which it is unlawful to deliver.” But the word “unlawful” in the congressional statute is not to be construed according to state regulations. Whether the detention of the mail is sanctioned must be determined by state standards. 388 26 Cong. Rec., Part 9, Appendix, Part I, p. 4 ff. (53d Cong., 2d Sess.). 389 Act of March 2, 1833 (4 Stat. L. 632). 390 Ex parte Siebold, 100 U.S. 371 (1879). See also Tennessee v. Davis, 100 U.S. 257 (1879), and 1 Willoughby on the Constitution, 124. 391 Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465 (1888). 392 See, inter alia, Leisy v. Hardin, 135 U.S. 100 (1890), and Rhodes v. Iowa, 170 U.S. 412 (1897). 393 This is the theory of the Webb-Kenyon Act. See my papers, “The Power of the States over Commodities Excluded by Congress from Interstate Commerce,” 24 Yale Law Journal, 567 (May, 1915), and “State Legislation under the Webb-Kenyon Act.” 28 Harvard Law Review, 225 (January, 1915). 394 See the reasoning in State v. Delaye, 68 So. 993 (Ala., 1915). 395 West Virginia v. Adams Express Co., 219 Fed. Rep. 794 (1915). 396 1 N.Y. 173 (1848). 397 Hayner v. State, 83 Ohio St. 178 (1910). See also Zinn v. State, 83 Ark. 273, 114 S.W. 227 (1908). 398 U.S. v. Thayer, 209 U.S. 39 (1908), and In re Palliser, 136 U.S. 257 (1890). 399 37 Stat. L. 699. For a further discussion of this point see my paper, “Unlawful Possession of Intoxicating Liquors and the Webb-Kenyon Act,” 16 Columbia Law Review, 1 (1916). 400 133 Ga. 353, 65 S.E. 770, 36 L.R.A. (n. s.) 443 (1909), and note, which says that the case is one primae impressionis. It should be said that the decision in the Court of Appeals was contra. See 4 Ga. App. 588, 62 S.E. 117 (1908). 401 In re Rapier, 143 U.S. no (1892). 402 To make the record complete it should be added that the federal courts have exclusive jurisdiction of all offenses embraced by statute, committed in a postoffice owned by the United States or jurisdiction over which has been ceded by the state. Battle v. U.S., 209 U.S. 36 (1908). But the fact that a train is engaged exclusively in carrying the United States mail does not preclude the jurisdiction of a state court of a prosecution for the murder of an engineer, committed by derailing the train. Crossley v. California, 168 U.S. 640 (1898). 403 The Roosevelt Policy, vol. ii, p. 486. In his Provincetown address (August 20, 1907) President Roosevelt returned to the same theme, saying: “I believe, furthermore, that the need for action is most pressing as regards those corporations which, because they are common carriers, exercise a quasi-public function; and which can be completely controlled, in all respects, by the federal government by the exercise of the power conferred under the interstate commerce clause, and, if necessary, under the post-road clause of the Constitution.” Ibid., p. 564. 404 158 U.S. 564 (1895). 405 25 Stat. L. 501. 406 See 2 Willoughby on the Constitution, 855. 407 43d Cong., 1st Sess., Senate Rept. No. 478. 408 California v. Pacific Railroad Companies, 127 U.S. 1 (1887); U.S. v. Gettysburg Electric Co., 160 U.S. 668 (1896). 409 9 Wheat. 738 (1824). 410 9 Wheat. 785 (1824). 411 Farrar, The Post Road Power (Hearings before Committee on Interstate Commerce, United States Senate, 62d Congress, p. 1498 ff). 412 Monongahela Navigation Co. v. U.S., 148 U.S. 312 (1893). 413 Annals of 2d Congress, pp. 303–309. 414 See Prentice, Federal Power over Corporations and Carriers, p. 152. 415 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878). Congress may authorize the secretary of war to lease upon terms agreed upon any excess of water power which results from the conservation of the flow of a river, and the works which the government may construct. U.S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913). 416 37 Stat. L. 560. 417 For an account of proposals in Congress to take this action, a history of its recommendation by successive postmasters general, and much valuable statistical information concerning the operation of the American privately owned, and the foreign publicly owned, telegraph and telephone systems, see “Government Ownership of Electrical Means of Communication,” 63d Congress, 2d Sess., Senate Doc. No. 399. 418 37 Stat. L. 240. 419 See Exclusion of Certain Publications from the Mails, p. 3 ff. (Hearing before the Committee on the Postoffice and Postroads, House of Representatives, 63d Cong., 3d Sess.). 420 Freund, Police Power, p. 509; 2 Willoughby on the Constitution, 841. 421 Schofield, Freedom of the Press in the United States, p. 90. 422 Pam, “Powers of Regulation Vested in Congress,” 24 Harvard Law Review, 77 (December, 1910). 423 As stated by Senator Newlands: “Congress can prohibit the use of the mails by any organization which it considers unlawful or injurious to the public welfare. It can, therefore, declare that any combination organized for the purpose of monopolizing the manufacture, production or sale of any article of commerce, or for the purpose of preventing competition is illegal, and can forbid and prohibit the use of the mails of the United States in aid of such business.” 33 Cong. Rec. (App.), p. 675. See also Remarks of Lanham, 33 Cong. Rec., p. 6324. 424 This was rejected by a House Committee on the ground that it was inadequate. See 56th Cong., 1st Sess., House Rept. No. 1501. 425 37 Stat. L. 560 (sec. 11). See also Mr. Adamson’s bill, H.R. 9576, 63d Cong., 2d Sess. (December 1, 1913). 426 Majority Report of the Committee Appointed to Investigate the Concentration of Control of Money and Credit (February 28, 1913), p. 162. A bill embodying these recommendations is given on p. 170. It denies the use of the mails to any stock exchange, “unless such exchange has been incorporated under the laws of the state or territory at which its business is conducted, or unless the charter and by-laws of such exchange or the law under which it is organized shall contain regulations and prohibitions satisfactory to the Postmaster General safeguarding the transactions of such exchange, the character of the securities dealt in thereon, the genuineness of the quotations thereof, and all other information concerning such transactions that is to be carried through the mails, and by telegraph and telephone beyond the limits of the state of the organization of such exchange against fraud and deceit in the following particulars”: These require publicity as to the assets and stock issues of a corporation before its securities may be listed; an annual report by the corporation whose securities are listed, to the secretary of the exchange and the postmaster general, giving a detailed statement of receipts, expenses, net earnings, salaries and commissions paid to officers or directors, etc.; prohibition of arbitrary action by a stock exchange in striking securities from its list, of artificial manipulation of securities, of hypothecation of securities purchased on a margin, of “short-selling,” etc. The bill also contains many requirements as to publicity. For a discussion of the economic features of the Pujo Committee’s proposals, see Regulation of the Stock Exchange, p. 585 ff. (Hearings before the Committee on Banking and Currency, United States Senate, 63d Cong., 2d Sess.). 427 Majority Report, p. 122. 428 See S. 5664, 63d Cong., 2d Sess. (May 26, 1914). 429 See Regulation of Cotton Exchanges, p. 310 ff. (Hearings before the Committee on Agriculture, House of Representatives (April, 1914)). See also 63d Cong., 2d Sess., House Rept. 765. It should be pointed out that the “trading in futures” that it was desired to prohibit was in the nature of gambling contracts and had come under the ban of local laws. 430 37 Stat. L. 553. A separate and concluding paragraph provides: “That all editorial or other reading matter published in any such newspaper, magazine or periodical, for the publication of which money or other valuable consideration is paid, accepted, or promised, shall be plainly marked ‘advertisement.’ Any editor or publisher printing editorial or other reading matter for which compensation is paid, accepted, or promised, without so marking the same, shall, upon conviction in any court having jurisdiction, be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500).” 431 Report of the Commission on Second-Class Mail Matter, p. 143. In his message of February 22, 1912, transmitting this report to Congress, President Taft said: “The findings of the commission confirm the view that the cost of handling and transporting second-class mail matter is greatly in excess of the postage paid, and that an increase in the rate is not only justified by the facts, but is desirable.” 432 Postal Laws and Regulations of 1913, p. 223. 433 Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). 434 Veazie v. Fenno, 8 Wall. 533 (1869). Italics mine. 435 In Edye v. Robertson, 112 U.S. 580 (1884) the Supreme Court said that the imposition “was upheld because a means properly adopted by Congress to protect the currency which it had created,” and the tax was not, therefore, subject to the ordinary rules. 436 McCray v. U.S., 197 U.S. 27 (1903). 437 Veazie v. Fenno, above. The distinction has sometimes been drawn between acknowledged powers and implied powers of Congress. For example, the power to tax and to regulate interstate commerce is granted in the Constitution, while that to exclude from the mails is implied from the postal clause. From this it is argued that Congress may be limited in its indirect control under an implied power when the same objection would not apply to the exercise of an acknowledged power. (See the brief of James M. Beck in the newspaper publicity case, printed in Cong. Rec., December 11, 1912.) But this distinction has never been sanctioned by the Supreme Court of the United States. It is proper, however, in this connection to point out the extraordinary nature of the taxing power, which is, in Marshall’s phrase, the “power to destroy.” 438 The term is Mr. J.M. Beck’s. See his brief in Lewis Publishing Co. v. Morgan, supra, and his article, “Nullification by Indirection,” 23 Harvard Law Review, 441. 439 Champion v. Ames, 188 U.S. 321 (1902). 440 Hippolite Egg Co. v. U.S., 220 U.S. 45 (1911). 441 Hoke v. U.S., 227 U.S. 308 (1913). 442 U.S. ex rel. Atty. Gen. v. Delaware & H. Co., 213 U.S. 366 (1909). 443 Opinion of Prof. W.W. Willoughby, quoted by J.Y. Brinton, “The Constitutionality of a Federal Child Labor Law,” 62 University of Pennsylvania Law Review, 501. See 2 Willoughby on the Constitution, 738. 444 A further argument in behalf of this legislation is that it would harmonize conflicting state laws which unduly operate in favor of certain manufacturers in their use of interstate commerce. 445 Brief of Samuel Untermyer and Louis Marshall, Regulation of the Stock Exchange, p. 652 ff. This brief argues the matter at greater length than does the report of the Pujo Committee (p. 119 ff.), made the previous year and is in reply to the brief of counsel on behalf of the New York Stock Exchange (Regulation of the Stock Exchange, p. 570 ff.). 446 Chapters II and IV. See also Burton v. U.S., 202 U.S. 344 (1909), where there is a dictum that the statute designed to prevent the postoffice from being used in aid of fraud “has its sanction in the power of the United States, by legislation, to designate what may be carried in the mails, and what must be excluded therefrom; such designation and exclusion to be, however, consistent with the rights of the people as reserved by the Constitution.” 447 U.S. v. Musgrave, 160 Fed. Rep. 700 (1908). 448 Regulation of the Stock Exchange, p. 657. The proposal in the Pujo Bill to deny unincorporated stock exchanges the use of the telephone or telegraph for the transmission of their quotations, raises the question whether Congress may exercise such indirect control under the guise of regulating interstate commerce. This question is discussed in the briefs (Regulation of the Stock Exchange, p. 570 ff. and p. 660 ff.), and is outside the purview of the present essay. From the brief review which I have attempted of the interstate commerce cases, however, it does not appear that they lend any support to the proposition contended for by the Pujo Committee. Generally speaking, the same principles are applicable, in relation to the power over interstate commerce as in relation to that over the mails as furnishing a means by which indirect control may be exerted. But it is proper to point out two possible differences: (1) an exclusion from interstate commerce is prima facie a “regulation” within the meaning of the grant in the Constitution; an exclusion from the mails, on the contrary, is not made “to establish postoffices,” and it would seem, therefore, that the inhibition would have to be justified as “necessary and proper” to this end; (2) postal facilities are established and maintained by Congress for use, upon the same terms, by everyone standing in the same relation to the government, and it is therefore possible to argue that a denial of these facilities would be improper, when an equally arbitrary regulation of interstate commerce might not be. Neither of these differences, it may be added, is so clear as to be controlling; the first seems to me of probable importance, but the second, while it has been suggested, is of doubtful validity. 449 U.S. v. Musgrave, above. 450 The point here made, to repeat, is that if Congress can legislate on grounds of public policy, its regulations must be connected with the use of the mails. The proposed legislation does not seem to fulfill this condition, for much, if not the greater part of the matter transmitted, would be harmless. It should be added, however (although the policy of the legislation is not here considered), that, conceding the power of Congress to act for the accomplishment of purposes not connected with the proper use of the mails, there are not unimportant economic objections to the proposed law. (Regulation of the Stock Exchange, p. 527 ff. and p. 585 ff.) These objections, I think, would have to be examined by the courts if Congress should be allowed the power which I have attempted to show it does not possess. 451 207 U.S. 463 (1907). 452 Adair v. U.S., 208 U.S. 161 (1907); see also Keller v. U.S., 213 U.S. 138 (1908). 453 McCulloch v. Maryland, 4 Wheat 316 (1819). 454 Mugler v. Kansas, 123 U.S. 623 (1887). 455 Houston v. Moore, 5 Wheat. 1 (1820). 456 Fairbank v. U.S., 181 U.S. 283 (1901). In Union Bridge Co. v. U.S., 204 U.S. 364 (1907) this language was used: “If the means employed have no substantial relation to public objects which the government may legally accomplish, if they are arbitrary and unreasonable beyond the necessities of the case, the judiciary will disregard mere forms and interfere for the protection of rights injuriously affected by such illegal action. The authority of the courts to interfere in such cases is beyond all doubt.” See also Morgan v. Louisiana, 118 U.S. 455 (1886); Postal Tel. Co. v. Adams, 155 U.S. 688 (1895); Collins v. New Hampshire, 171 U.S. 30 (1898), and Henderson v. The Mayor of New York, 92 U.S. 259 (1876). 457 Hoover v. McChesney, 81 Fed. Rep. 472 (1897). “The right to mail matter was considered in Teal v. Felton [12 How. 284 (1851)], but was not established as a right peculiar to citizens.” Lien, Privileges and Immunities of Citizens of the United States, p. 41 (Columbia University Studies in History, Economics and Public Law, vol. liv, no. 1). But it would not seem that this case considered such a subject. 458 Heisler, Federal Incorporation, p. 86. 459 Woodrow Wilson, Congressional Government, p. 12. 460 History of Greece, vol. ii, p. 86. 461 But see Goodnow, Social Reform and the Constitution, p. 91 ff. |
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