THE EXTENSION OF FEDERAL CONTROL THROUGH EXCLUSION FROM THE MAILS
It has already been indicated that, while the postal power of Congress
is plenary, extending to the classification and exclusion of articles
presented for transmission through the mails, it is not without limits;
that its exercise is restricted by provisions found in the Constitution
itself,--the guarantees of a free press and immunity from unreasonable
searches and seizures. There is, moreover, a further important
limitation in that an arbitrary refusal of postal facilities would seem
to be a denial of due process of law.
The Supreme Court of the United States has not yet been called upon to
set any limit to congressional action under this clause; it has thus
far upheld every law restricting the use of the postoffice. But it
should be remembered in the discussion which follows that all existing
exclusions from the mails can be justified as partaking of the nature
of police regulations; the prohibited articles are either inherently
injurious, inimical to the health, safety and well being of recipients,
or the use of the mails is denied because it would be in furtherance of
a design that is condemned by moral considerations or is against public
policy.
That this _Index Expurgatorius_ will be extended may be taken for
granted. It is in the nature of police regulations that they expand
more inclusively and rigorously. For example, in 1912 Congress
excluded from the mails moving picture films of prize fights.[418] At
the third session of the Sixty-third Congress, moreover, bills were
introduced and urged to deny absolutely the use of the mails to any
person who, in the opinion of the postmaster general, “is engaged
or represents himself as engaged in the business of publishing” any
books or pamphlets of an indecent, immoral, scurrilous or libelous
character. No letter, packet, parcel, newspaper, book or other thing,
said one bill, “sought to be sent through the postoffice by or on
behalf or to or on behalf of such person shall be deemed mailable
matter, and the postmaster general shall make the necessary rules and
regulations to exclude such non-mailable matter from the mails.”[419]
The proposed legislation was aimed at certain publications devoted to
the unrestrained, defamatory and often indecent criticism of particular
religious denominations and their clergy.
The constitutionality of this legislation, however, is open to serious
doubt. There can, of course, be no question as to the impairment of
religious freedom, for, while this requires freedom of attack, it
cannot “justify the violation of public order and common decency”; or,
as put by another authority, “the prohibition does not prevent Congress
from penalizing the commission of acts, which, although justified
by the tenets of a religious sect, are socially or politically
disturbing, or are generally reprobated by the moral sense of civilized
communities.”[420] Nor is the objection that the freedom of the press
would be impaired, since, admitting that a denial of postal facilities
would be an impairment of the liberty of publication, the federal
guarantee does not include the right to publish scurrilous or libelous
utterances on matters of private concern; or, to take Hamilton’s test,
there is no publication of truth, with good motives and for justifiable
ends.[421]
If the proposed legislation simply made such matter non-mailable
and penalized any attempt to use the postoffice for its carriage,
it would probably be free from objection. But under the bill quoted
above, if it was established that a person made a practice of sending
such matter through the mails, the postmaster general would have the
absolute authority arbitrarily to deny him facilities for _all_ his
mail matter, much of which would be admittedly innocuous; and whether,
if the objectionable practices were suspended, the person would again
be permitted to make use of the governmental agency, would depend on
the discretion of the postmaster general. This official’s authority
would, in effect, be to punish for acts not made criminal by Congress.
Such legislation would for this reason seem unconstitutional as well as
ill-considered.
But this exclusion is in a class by itself. It is an attempt to reach
effectively an evil over which there is admittedly some federal
control, for Congress may prevent the transmission of scurrilous
papers. The objection is to the method of exercise rather than to
the existence of the power. Of a different character is the strongly
urged proposal that congressional control of the mails may be used as
a valid means to compel the performance or non-performance of certain
acts by persons, over whom there exists no direct federal authority. In
other words, it is contended that Congress has a plenary and arbitrary
power to determine who shall use the mails and what articles shall be
carried, and therefore may impose any antecedent conditions, no matter
how onerous or remote, upon the enjoyment of postal facilities. With
the ever increasing frequency and importance of problems demanding a
solution by the federal government in the absence of effective, and
in some cases even attempted, settlement by the states, Congress is
under the necessity of casting about for indirect methods of exerting
control, since direct action would be unconstitutional. The use for
this purpose of the taxing and commercial powers has in some instances
been made, and in others is very strongly urged. It is also argued
that Congress may refuse corporations, to whose size, organization,
or activities, it objects, the right to sue in federal courts and
that national banks may be ordered not to receive their deposits. In
asking, therefore, whether it is constitutional for Congress to exert
such indirect control under the cloak of regulating the mails, we will
merely consider one phase of the larger subject of indirect government.
Such an exercise of power over the mails has been advocated to secure
corporate publicity. “Congress,” says one who is in favor of such
extension of federal control, “by regulating the use of the mails and
channels of interstate commerce, may compel every corporation engaged
in any business, _whether interstate or not_, to give publicity to its
corporate affairs, by legislation denying the use of the mails and the
instruments of interstate commerce for the transmission of any matter
concerning the affairs or business of any corporation that fails to
make and file reports of the fullest nature concerning its organization
and business, such, for example, as are already exacted from interstate
carriers under the Interstate Commerce Act. Such legislation would be
valid and enforceable.”[422]
It has been suggested in Congress[423] that an effective punitive
method of dealing with monopolistic corporations would be to deny
them postal facilities.[424] If such corporations were violating
the Sherman Act or were otherwise outlawed by valid legislation,
Congress would have the right to deny them the use of the mails, since
it would be absurd for the general government to aid, through its
instrumentalities, persons or corporations violating laws which it had
passed. An illustrative case is afforded by the provision of the Panama
Canal Act of August 24, 1912, which says that no vessel owned by any
company doing business in violation of any of the acts of Congress
relating to interstate commerce “shall be permitted to enter or pass
through said canal.”[425]
But it is a different proposition to urge that Congress may deny the
use of the mails in order to compel corporate publicity, when, if the
legislation directly commanded compliance, it would be clearly _ultra
vires_. Thus, the Pujo Money Trust Committee proposed “that Congress
prohibit the transmission by the mails or by telegraph or telephone
from one state to another of orders to buy or sell or quotations or
other information concerning transactions on any stock exchange, unless
[among other conditions] such exchange shall (1) be a body corporate of
the state or territory in which it is located.”[426] This proposal was
based upon the conclusion of a majority of the committee that “Congress
has power to prevent the use of the mails to disseminate quotations
or other information concerning transactions on stock exchanges whose
facilities are used for purposes of gambling and price manipulation,
and that exercising its wide choice of means to that end, it may
prohibit the transmission through the mails of any information relating
to transactions on exchanges refusing submission to regulations
reasonably adapted to preventing the objectionable practices.”[427]
The question arises whether such an exclusion would not violate the
freedom of the press, since newspapers and other publications could not
use the mails if they contained any information, however harmless and
valuable, concerning any transactions (to which Congress might have
no objection) of the exchange which has refused to accept regulations
which the general government had no power directly to impose.
Newspapers would be unable to circulate truth on matters of public
concern if the published information as to stock quotations, although
harmless in its nature, concerned an institution whose practices
Congress was indirectly attempting to check. If the law were carefully
confined to the prohibition of the circulation of publications which
contained matter relating to gambling transactions, there would be no
abridgment of the guarantee of the First Amendment. The exclusion would
be similar to that of lottery advertisements, or matter designed to
aid in defrauding recipients. But as proposed by the Pujo Committee,
the law would, at least in part, if not as a whole, operate as an
abridgment of the freedom of the press.
Apart from this consideration, however, the theory of the law,
differently stated, is that Congress, under its power to exclude from
the mails gambling contracts and matter designed to defraud recipients,
may go farther and exclude harmless matter because this seems a
necessary and adequate means of compelling the exchanges to take out
state charters, a concession thought by Congress to be desirable in
order to prevent the gambling and other harmful practices, over which
there is no direct national control.
Still other proposals would extend federal authority in a similar
manner. It is urged, for example, that Congress prohibit the use of
the mails by fire insurance companies which at present are, by means
of the postoffice, able to do business in states where they could not,
if they used local agents.[428] And to give a third example, it was
argued that an efficient means of prohibiting trading in cotton futures
would be to deny the use of the mails for the furtherance of such
transactions.[429] The extent to which the Supreme Court has thus far
recognized in Congress authority of this character, is only to sanction
the refusal to lend federal aid, by furnishing postal facilities to the
furtherance or consummation of gambling and fraudulent schemes.
One measure of a character somewhat analogous to those proposals which
we have been considering, has, however, already been sustained by the
Supreme Court of the United States. I refer to the recent so-called
“Newspaper Publicity Law” which requires publications entered as
second-class matter (with a few exceptions) to furnish the postoffice
department with, and publish, a sworn statement giving the names and
addresses of the owners, editors, and business managers, and, in the
case of daily newspapers, circulation figures. It is provided that “any
such publication shall be denied the privileges of the mail if it shall
fail to comply with the provisions of this paragraph within ten days
after notice by registered letter of such failure.”[430]
As claimed in the defendants’ brief, when the law went before the
Supreme Court, Congress had, in effect, attempted “to regulate
journalism.” Relying upon its power over the postoffice, Congress
had threatened those publications which enjoy second-class rates
with a denial of this privilege should they refuse to comply with
the conditions; and it was, moreover, made a crime to continue to
use the mails and violate the stipulation that all reading matter
for the publication of which a valuable consideration is received,
“shall be plainly marked ‘advertisement.’” Such regulations, without
any reference to the use of the mails, would be obviously outside the
constitutional power of Congress.
By a narrow, but nevertheless a convincing line of reasoning, the
Supreme Court, through Chief Justice White, was able to justify the law
without being put to the necessity of making any definite declaration
as to the limits to which Congress may go in its exercise of what,
lacking a better phrase, we may call “indirect regulation under the
postal power.”
The Court’s opinion shows that in the classification of mail
matter there has been no attempt at uniformity and that periodical
publications have enjoyed special favors by reason of legislative
adherence to what has been described as the “historic policy of
encouraging by low postal rates the dissemination of current
intelligence.”[431] It is shown that as a condition precedent to being
“entered as second class mail matter” and enjoying the low rates
which are maintained at a loss, the government demands an answer to
a score of questions concerning ownership, editorial direction,
advertising discrimination, specimen copies, and circulation. To the
Third Assistant Postmaster General is given the authority of accepting
or rejecting applications of entry at the second-class rate.[432] The
Supreme Court simply considered the law as laying down new conditions,
compliance with which will continue the right “to enjoy great
privileges and advantages at the public expense.” In its opinion the
Court says:
“As the right to consider the character of the publication as an
advertising medium was previously deemed to be incidental to the
exercise of the power to classify for the purpose of the second class
mail, it is impossible in reason to perceive why the new condition
as to marking matter, which is paid for as an advertisement, is not
equally incidental to the right to classify.
“And the additional exactions as to disclosure of stockholders,
principals, creditors, etc., also are clearly incidental to the power
to classify as are the requirements as to disclosure of ownership,
editors, etc., which for so many years formed the basis of the right of
admission to the classification. We say this because of the intimate
relation which exists between ownership and debt....
“Considered intrinsically, no completer statement of the relation which
the newly exacted conditions bear to the great public purpose which
induced Congress to continue in favor of the publishers of newspapers
at vast public expense the low postal rate as well as other privileges
accorded by the second class mail classification, can be made than was
expressed in the report of the Senate Committee stating the intent of
the legislation--that is, to secure to the public ‘in the dissemination
of knowledge of current events’ by means of newspapers, the names,
not only of the apparent, but of what might prove to be the real and
substantial owners of the publications and to enable the public to know
whether the matter which was published was what it purported to be, or
was in substance a paid advertisement.
“We repeat that in considering this subject we are concerned not with
any general regulation of what should be published in newspapers, nor
with any condition excluding from the right to resort to the mails,
but we are concerned solely and exclusively with the right on behalf
of the publishers to continue to enjoy great privileges and advantages
at the public expense, a right given them by Congress upon condition
of compliance with regulations deemed by that body incidental and
necessary to the complete fruition of the public policy lying at the
foundation of the privileges accorded.”[433]
This decision thus applies simply to the suspension of second class
privileges and not to any general denial of the use of the mails. It
is significant, moreover, that the Court expressly refused assent
to the contention of the government, which as paraphrased in the
opinion, was that the law merely “imposes conditions necessary to be
complied with to enable publishers to participate in the great and
exclusive privileges and advantages which arise from the right to use
the second-class mail,” but that even if “the provision be given the
significance attributed to it by the publishers, it is valid as an
exertion by Congress of its power to establish postoffices and post
roads, a power which conveys an absolute right of legislative selection
as to what shall be carried in the mails, and which, therefore, is
not in anywise subject to judicial control even though in a given
case it may be manifest that a particular exclusion is but arbitrary
because resting on no discernible distinction nor coming within any
discoverable principle of justice or public policy.”
The Court, however, emphatically refused to accept this view, saying
that “because there has developed no necessity of passing on the
question, we do not wish even by the remotest implication to be
regarded as assenting to the broad contentions concerning the existence
of arbitrary power through the classification of the mails, or by way
of condition, embodied in the proposition of the government which we
have previously stated.”
The Supreme Court has, however, permitted Congress, in the exercise
of its taxing power, and less noticeably in its control of interstate
commerce, to accomplish ends which were not included in the enumerated
delegations of the Constitution. Thus, the tax on state bank notes
which made their issue unprofitable was upheld on the ground that
“the judiciary cannot prescribe to the legislative department of the
government limitations upon the exercise of its _acknowledged_ powers.
The power to tax may be exercised oppressively upon persons, but the
responsibility of the legislature is not to the courts, but to the
people by whom its members are elected.”[434] Such a position in
this case, however, was easily justified on the ground that Congress
had the power to stop altogether the issue of the state bank notes
if it thought that this course was necessary in order to provide an
effective currency system, and the case thus loses much of its apparent
importance.[435]
More illustrative, perhaps, of the plenary power of Congress with
respect to the raising of a revenue, and impossible to justify on such
a ground, is the decision upholding a tax upon oleomargarine so heavy
that it can only be manufactured at a loss. Thus, unable directly to
control manufacture, Congress has achieved the same end through the
exercise of its taxing power. The Supreme Court said:
The argument “when reduced to its last analysis comes to this: that
because a particular department of the government may exert its lawful
powers with the object or motive of reaching an end not justified,
therefore it becomes the duty of the judiciary to restrain the exercise
of a lawful power whenever it seems to the judicial mind that such
lawful power has been abused. But this reduces itself to the contention
that under our constitutional system, the abuse by one department of
the government of its lawful powers is to be corrected by the abuse of
its powers by another department.”[436]
Such reasoning is, it appears, final, although it goes farther than the
Bank Note Case which declared that “there are indeed certain virtual
limitations arising from the principles of the Constitution itself.
It would undoubtedly be an abuse of the power [that of taxation] if
so exercised as to impair the separate existence and independent self
government of the states or if exercised for ends inconsistent with the
limited grants of power in the Constitution.”[437] However, although
with more guarded language, the Court, even in the McCray case,
intimated that a judicial veto might attach to measures which on their
face bore evidence of not being tax laws at all, but were transparent
in their purpose to control subjects not within the power of Congress.
Such a law has not come before the Supreme Court.
Not so striking, but nevertheless important illustrations of this
“nullification by indirection”[438] are to be found in the interstate
commerce legislation of recent years. Congress has excluded lottery
tickets from interstate commerce on account of their harmful effect on
recipients;[439] it has assumed a control over the manufacture of food
products by establishing standards of purity which must be met before
the articles may begin an interstate journey.[440] The Mann White Slave
Act extends federal control to immorality in the states, and in its
decision upholding this law, the Supreme Court frankly admits that
the means exerted “may have the quality of police regulations.”[441]
Proposals are now made to control manufacturing and trading companies,
whether interstate or not, by compelling them to take out federal
charters and modify their business practices (over which Congress has
no direct control) in accordance with federal regulations before they
will be permitted to enjoy the facilities of interstate commerce. It
is most strongly urged that the national legislature has the power
to improve labor conditions within the states, the most desired
manifestation being a law putting articles made by children under
specified ages in the same class with lottery tickets and impure foods.
Up to this time, however, legislation under the commerce clause has
developed little necessity for passing upon the question whether
these ultimate purposes may be considered by the courts, for the
indirect control effected by the various acts is purely incidental
in character. It is quite proper for Congress to build up an _Index
Expurgatorius_ just as it has done in the case of the mails, and to
say that commerce shall not be “polluted” by the carriage of obscene
literature, impure food, and made an agency to promote immorality. In
every case, the power has been exerted on _things_, not on _persons_,
and only once has there been even an apparent departure from this
theory. Here the Supreme Court by a forced interpretation of the
statute destroyed much of its force. I refer to the “commodities
clause” of the Hepburn Bill which made it unlawful for any railroad
to transport, except for its own use, any commodity other than timber
which it had manufactured, mined, or produced, or in which it had any
interest. The Court interpreted this as meaning that the railroad was
not forbidden to engage in mining, but that before transporting the
product, it had to divorce itself from any interest by a _bona fide_
sale. Such legislation, however, was “necessary and proper” in order
to insure the enforcement of the regulations providing for equality of
rates, publications of tariffs, etc. Any other interpretation would
have required the Court to consider and decide several very “grave
constitutional questions” as to the powers of Congress to regulate
the production and ownership of commodities simply because they might
become subjects of interstate commerce.[442]
But conceding the authority of Congress to regulate child labor
indirectly, upon what theory is it based? In the words of a reluctant
convert, “the lottery case is authority for the doctrine that
interstate carriers may be prohibited from carrying, or shippers
or manufacturers from sending from state to state and to foreign
countries, commodities produced under conditions so objectionable as
to be subject to control, as to their manufacture, by the states under
an exercise of their police powers, or of a character designed or
appropriate for a use which might similarly be forbidden by law.”[443]
Such legislation, however, would be directed against the articles
produced under the objectionable conditions, and the manufacturers who
employed child labor would not be prohibited from using the advantages
of interstate commerce for other articles, not so produced.[444]
There is an obvious distinction between such legislation and that
advocated by the money trust committee, a distinction which is
suggested, but not stressed, by the Solicitor General in the brief
filed on behalf of the government in the newspaper publicity case:
there must be no “regulation of the private business of citizens in
a manner beyond any express or implied power of Congress” on the
ground that such regulation “imposes as a penalty for disobedience a
denial of an important federal privilege which Congress controls.”
Any legislation excluding from the mails must apply directly to the
_things_ mailed, not to the _persons_ using the mails. This is a
distinction which is evident in the decisions upholding the interstate
commerce legislation, and which underlies the argument that Congress
may exclude commodities manufactured in whole or in part by children.
The law would operate directly on these commodities, not on account of
their inherent character (which would probably not be different from
that of other commodities manufactured by adult labor), but because
of the objectionable conditions of production. And by a parity of
reasoning, Congress could exclude from the mails matter relating to
gambling transactions which might be forbidden under the police power
of the state, although such matter, on its face, would be harmless.
But it is an entirely different proposition absolutely to deny the
use of the mails because certain persons have refused to comply with
conditions, beyond the power of Congress directly to impose, which it
thinks may result in regulating objectionable practices, although these
may be entirely disassociated from the bulk of the matter which has
been excluded.
The briefs of counsel on behalf of the Pujo Committee furnish no
argument to change the opinion here expressed that the proposed
legislation would be unconstitutional.[445] The validity of the bill
is asserted on the ground of the cases, already considered,[446]
upholding the power of Congress to exclude lottery tickets and
fraudulent matter. Chief importance, however, seems to be attached to a
dictum of a District Court which says:
“If the use of the mails is a privilege which may be granted or
withheld by Congress, Congress has the power to determine what shall be
carried and what excluded ... under the power to regulate the mails it
has seen proper to declare that they shall not be used for any purposes
which are detrimental to the morals of the people or against public
policy, and by enacting that the sending of obscene matter through
the mails shall not be permissible, it has determined such acts to be
against public policy.”[447] In this case the only matter before the
court was the construction of the statute; there was no question as to
the power of Congress, and the reasoning making public policy the test
is clearly _obiter_. Counsel for the Pujo Committee, however, boldly
argued as follows:
“It would therefore be within the competency of Congress, to prohibit
absolutely the transmission through the mails of a circular or pamphlet
or newspaper containing the quotations or information concerning
transactions in securities on stock exchanges or otherwise, just as it
has prohibited the transmission of circulars containing information
with regard to lotteries. Such a prohibition may be absolute or
conditional. Thus Congress might accompany a prohibition absolute in
form with a proviso that its inhibition should not be applicable to”
matter relating to securities “sold or offered for sale on a stock
exchange duly incorporated, whose charter shall contain provisions
similar to those set forth in the pending bill.” Congress, the
argument concludes, would simply be laying down a “rule as to what
shall and what shall not be mailable matter, and in making this
classification it is giving expression to what it conceives to be
sound public policy, to the same extent and in the same way it does
when it enacts any other kind of legislation that comes within the
constitutional grant of legislative powers.”[448]
But, it is submitted, Congress would be doing nothing of the sort. In
the cases of the lottery tickets and obscene matter, the inhibition was
on account of the inherent character of the matter mailed. If the test
was one of public policy, as the very broad language of the District
Court’s opinion would seem to indicate, Congress simply declared it
not sound public policy that the mails of the United States should
be used in furtherance of transactions that were harmful. To be sure
the Postmaster General is authorized to seize and detain all letters
addressed to a person against whom a fraud order has issued, but this
is justifiable on the ground that it is reasonably necessary in order
to make effective the regulations against using the postoffice to
defraud; but Congress has not yet made it a crime for anyone, some of
whose mail matter may come within the inhibition, to deposit in, or
take from, the mails, letters of a personal and harmless character. It
is improper, then, to argue that in passing the Pujo Bill, Congress
would act “to the same extent and in the same way” as it has done in
the past. The authority of the fraud order decisions is simply that
if Congress excludes matter relating to gambling transactions (as it
probably has the right to do), correspondence deposited by or addressed
to, the person suspected of unlawfully using the mails, may be seized
and detained in order to make the gambling regulations effective. But
the cases furnish no ground for the belief that Congress may penalize
the use of the mails by these persons for the transmission of matter
that is harmless. The brief of counsel for the Pujo Committee does
not argue this point; nor does it take the natural, but nevertheless
untenable, further position and maintain that Congress may make it a
crime to deposit this harmless matter in order to detect violations of
a law excluding information concerning gambling contracts.
On the contrary, counsel conceive the public policy of the proposed
legislation to be the enforcement of the regulations set forth in the
pending bill,--regulations that are not concerned with the character
of the mail matter, but with persons using the mails. Not even by
twisted interpretations can the adjudicated cases be made to support
such reasoning. The “newspaper publicity law” which marks the extreme
assertion of congressional authority, applies directly to the papers
mailed. Only one _dictum_, of a _nisi prius_ court,[449] lays down the
test of public policy, and if, under its enumerated powers, Congress
may legislate in fulfillment of this vague purpose, there would be a
good deal of difficulty, I fancy, in showing that it would be subserved
by the enforcement of the proposed regulations. And conceding that
Congress may control the postoffice on grounds of public policy, the
fact that the ends to be attained are unconnected with the use of the
mails, would prevent the legislative fiat from being final, and the
enforcement of the Pujo Committee’s recommendations would be so onerous
and remote, that it would, I venture, not be permitted.[450] Reasoning
such as that indulged in by the counsel, moreover, disregards the
principle that runs through all the cases: the enforcement of postal
regulations must be consistent with the rights reserved to the people.
And the Pujo Bill attempts to regulate, not the mails, but stock
exchanges.
The first Employers’ Liability Case,[451] it is submitted, furnishes
sufficient basis to uphold the correctness of the view that the
proposed legislation is unconstitutional. In these cases it was held
that the statute was not confined to a regulation of interstate
commerce, but attempted to control _persons_, not only as to their
engaging in interstate commerce, but in other respects, simply because
some of their activities came under the authority of Congress.
Furthermore, the Supreme Court has held that “there is no such
connection between interstate commerce and membership in a labor
organization as to authorize Congress to make it a crime against the
United States for an agent of an interstate carrier to discharge an
employee because of such membership on his part.”[452]
There are a number of _dicta_ of the United States Supreme Court,
particularly in regard to objectionable state statutes, which show that
attempted indirect regulation is considered improper, at least for
the local legislatures. First in time and importance comes Marshall’s
famous statement, that “should Congress under pretext of executing
its powers, pass laws for the accomplishment of objects not entrusted
to the government, it would become the painful duty of this tribunal,
should a case requiring such a decision come before it, to say that
such an act was not the law of the land.”[453]
Or, as was said in another case: “The courts are not bound by mere
forms, nor are they to be misled by mere pretenses. They are at
liberty--indeed under a solemn duty--to look at the substance of
things, whenever they enter upon the inquiry whether the legislature
has transcended the limits of its authority. If, therefore, a statute
purporting to have been enacted to protect the public health, the
public morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of the rights
secured by fundamental law, it is the duty of the courts to so adjudge
and thereby give effect to the Constitution.”[454] No power ought to
be sought, much less adjudged, “in favor of the United States, unless
it be clearly within reach of its constitutional charter.” The courts
are “not at liberty to add one jot of power to the national government
beyond what the people have granted by the Constitution.”[455]
The Court has, moreover, adhered to “the great principle that what
cannot be done directly because of constitutional restriction, cannot
be accomplished indirectly by legislation which accomplishes the same
result.... Constitutional provisions,” adds Justice Brewer, “whether
operating by way of grant or limitation, are to be enforced according
to their letter and cannot be evaded by any legislation which,
although not in terms trespassing upon the letter and spirit, yet in
substance or effect destroys the grant or limitation.”[456]
It is, moreover, a serious question whether arbitrary exclusions from
the mails would not abridge the guarantee of due process of law. This
question has never been before the Supreme Court of the United States,
but a District Court has maintained that “the postal monopoly, if
granted and exercised by a citizen or a corporation would, from the
fact of its being a monopoly, make it imperative that all persons who
paid the postal rates and conformed to the reasonable regulations of
the postal service should have a common right to the use of the mails,
and that, because of the fact of the monopoly thus granted. This right
would be protected in the courts if the citizen or the corporation
controlling the postal service should attempt to deprive him of it.”
The court then suggests that if the federal government should become
the owner of all transportation lines and establish a monopoly,
facilities would have to be extended to all, subject “to such general
laws and regulations as to rates and the operation of the lines as
might be enacted and established”; that the right to travel and ship
freight “would be readily recognized as a property right in the citizen
and one of which a particular citizen could not be deprived except by
due process of law. We think the right to the use of the mails, though
in a degree much less valuable, than the use of the transportation
lines, would be equally a property right, and one which could not
be taken away except by due process of law.”[457] The use of this
property right would, of course, be subject to police regulations by
Congress, to the extent that they have been upheld by the Supreme
Court, or to which this argument concedes that they may go,--always
applying, however, directly to the _things_ mailed.
One of the methods urged for compelling federal incorporation of
trading companies engaged in interstate commerce is the denial of
postal facilities to state chartered concerns, and concerning this
one of the abler advocates of such an end, says: “If we are correct
in believing that due process requires the equal protection of the
laws, an arbitrary selection or classification is beyond the power of
Congress. A law which divides those who use the mail into two general
classes, all state corporations on the one hand, and all which are not
incorporated by a state on the other, does not seem based upon any
reasonable difference, either in the character of the person or in the
kind of mail matter sent, which will make the classification more than
arbitrary selection. The constitutionality of this method, therefore,
seems open to grave question.”[458] The conclusion of this writer,
therefore, is that the constitutionality of the Pujo Bill would be open
“to grave question” as denying due process of law.
Thus far the proposed extension of federal control by forbidding
persons to use the mails, has been objected to as (in the suggested
bill at least) abridging the freedom of the press, as not being a
_bona fide_ regulation of the mails, as attempting to obviate the
objection of _ultra vires_ by the use of indirect means, and as
denying due process of law. There is a final consideration, which,
while not legally controlling, is none the less important. Without
holding strictly to a “literary theory”[459] of the Constitution one
can regret the apparently growing tendency to disregard constitutional
provisions and to sanction all legislation if, by any twisted
interpretation, it can be upheld by the courts, although it may, as
in the case of the postoffice proposals considered above, be well
outside the fairly considered powers of the law-making body. This
tendency shows an impatience of legal restraint, and a disinclination
to follow what may be called constitutional morality. The phrase is
that of Grote,[460] who, describing Athenian Democracy in the time of
Kleisthenes, emphasized the necessity for “a perfect confidence in the
bosom of every citizen, amidst the bitterness of party contest, that
the forms of the constitution will be no less sacred in the eyes of
his opponents than in his own.” Such constitutional morality he called
“a natural sentiment” as it exists in the United States, but these
words will no longer be true if Congress may extend its control in the
manner proposed, without waiting for a grant of authority in the manner
provided for by the Constitution.[461]
And if the courts should permit such extensions of federal control,
enormous powers will, by judicial construction, be taken from the
states and given over to the national legislature. For, as it is hardly
necessary to remark, the denial of postal and interstate commerce
facilities would be almost as efficacious as positive legislation;
without using the mails and the channels of trade no business could
successfully exist. If congressional control may be thus extended,
every business and every individual needing to use the mails would
become subject to federal regulation on the vague ground of public
policy. The reserved powers of the states would then exist only by
the sufferance of Congress, and the cardinal theory of the American
system--that the federal government is one of enumerated powers--would
become a cynical fiction.
TABLE OF CASES
PAGE
Achison v. Huddleson, 12 Howard, 293 90
Adair v. United States, 208 U. S. 161 176
Adams v. The People, 1 N. Y. 173 147
American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 58
Andrews v. United States, 162 U. S. 420 49
Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328 133
Bates & Guild Co. v. Payne, 194 U. S. 106 58
Battle v. United States, 209 U. S. 36 149
Blackham v. Gresham, 16 Fed. Rep. 609 43, 93
Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 145
Boyd v. United States, 116 U. S. 616 124
Brig Wilson, 1 Brockenborough, 423 113, 127
Burton v. United States, 202 U. S. 344 173
California v. Pacific Railroad Co., 127 U. S. 1 95, 152
Chae Chan Ping v. United States, 130 U. S. 581 108
Champion v. Ames, 188 U. S. 321 117, 169
Cleveland, P. & A. R. Co. v. Franklin Canal Co.,
5 Fed. Cas. 1044 91
Cohens v. Virginia, 6 Wheaton, 264 136
Collins v. New Hampshire, 171 U. S. 30 178
Commonwealth v. Knox, 6 Mass. 76 131
Cooley v. Port Wardens, 12 Howard, 299 113
Crossley v. California, 168 U. S. 640 149
Debs, In re, 158 U. S. 564 10, 47, 151
Dickey v. Maysville, etc. Co., 7 Dana (37 Ky.), 113 86
Dunlop v. United States, 165 U. S. 486 49
Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. 662 56
Employers’ Liability Cases, 207 U. S. 463 176
Eyde v. Robertson, 112 U. S. 580 168
Fairbank v. United States, 181 U. S. 283 178
Fong Yue Ting v. United States, 149 U. S. 698 108
Golden v. Prince, 10 Fed. Cas. 542 113
Grand Jury, In re, 62 Fed. Rep. 834, 840 45
Grimm v. United States, 156 U. S. 604 49
Hanover Bank v. Moyses, 186 U. S. 181 114
Harmon v. Moore, 59 Maine, 428 135
Hayner v. State, 83 Ohio St. 178 147
Henderson v. The Mayor of New York, 92 U. S. 259 178
Hennington v. Georgia, 163 U. S. 299 130
Hippolite Egg Co. v. United States, 220 U. S. 45 170
Hoke v. United States, 227 U. S. 308 52, 113, 170
Hoover v. McChesney, 81 Fed. Rep. 472 125, 179
Houston v. Moore, 5 Wheaton, 1 177
Illinois Central R. Co. v. Illinois, 163 U. S. 142 132
Jackson, Ex parte, 96 U. S. 727 54, 97, 110, 114, 115-116, 118, 125
Keller v. United States, 213 U. S. 138 55, 176
Knowles v. United States, 170 Fed. Rep. 409 49, 50
Kohl v. United States, 91 U. S. 367 92
Lathrop v. Middleton, 23 Cal. 257 135
Leisy v. Hardin, 135 U. S. 100 146
Lewis Publishing Co. v. Morgan, 229 U. S. 288 98, 110, 121, 167-169
Lottery Case, _see_ Champion v. Ames.
McCray v. United States, 197 U. S. 27 169
McCulloch v. Maryland, 4 Wheaton, 316 36, 40, 81, 177
Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 133
Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 58
Monongahela Navigation Co. v. United States, 148 U. S. 312 155
Morgan v. Louisiana, 118 U. S. 455 178
Mugler v. Kansas, 123 U. S. 623 177
Neagle, In re, 135 U. S. 1 108
Neil v. Ohio, 3 Howard, 720 90
Nelson v. State, 25 Texas App. 599 131
Newspaper Publicity Case, _see_ Lewis Publishing Co. v. Morgan.
Osborn v. The Bank of the United States, 9 Wheaton, 738 152, 155
Palliser v. United States, 136 U. S. 257 53, 147
Patterson v. Colorado, 205 U. S. 458 102
Pennsylvania v. Wheeling Bridge Co., 18 Howard, 421 93
Penny v. Walker, 64 Maine, 430 135
Pensacola Telegraph Co. v. Western Union Telegraph Co.,
96 U. S. 1 33, 156
People v. Croswell, 3 Johns. Cas. (N. Y.) 337 100
Phalen v. Virginia, 8 Howard, 164 53
Postal Telegraph Co. v. Adams, 155 U. S. 688 178
Public Clearing House v. Coyne, 194 U. S. 497 49, 57
Rapier, In re, 143 U. S. 110 54, 98, 117, 118, 148
Regina v. Hicklin, L. R., 3 Q. B. 360 50
Reinach v. Cortelyou, 28 App. D. C. 570 58
Respublica v. Oswald, 1 Dallas, 319 102
Rhodes v. Iowa, 170 U. S. 412 146
Rose Co. v. State, 133 Ga. 353 148
Rosen v. United States, 161 U. S. 29 50
Rupert v. United States, 181 Fed. Rep. 87 127
Schutz v. Dalles Military Road Co., 7 Oregon, 259 90
Seabright v. Stokes, 3 Howard, 151 88
Siebold, Ex parte, 100 U. S. 371 114, 144
Slaughter House Cases, 16 Wallace, 36 102
State v. Delaye, 68 So. 993 146
State v. Norfolk & W. R. Co., 33 W. Va. 440 131
Swearingen v. United States, 161 U. S. 446 49, 50
Teal v. Felton, 12 Howard, 284 179
Tennessee v. Davis, 100 U. S. 257 144
Thomas v. Cincinnati, 62 Fed. Rep. 803 46
Trombley v. Humphrey, 23 Mich. 472 92
Turner v. Williams, 194 U. S. 279 120
Turnpike Co. v. Newlands, 15 N. C. 463 136
Union Bridge Co. v. United States, 204 U. S. 364 178
United States v. Barney, 3 Hughes’ Reports (U. S. C. C.) 545, 133
United States v. Benedict, 165 Fed. Rep. 221 49
United States v. Bennett, 16 Blatchford, 343 50
United States v. Bott, 24 Fed. Cas. 1204 56
United States v. Boyle, 40 Fed. Rep. 664 50
United States v. Bromley, 12 Howard, 88 42
United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 156
United States v. Chase, 135 U. S. 255 49
United States v. Clark, 25 Fed. Cas. 443 45
United States v. Clark, 23 Int. Rev. Rec. 306 135
United States v. Claypool, 14 Fed. Rep. 127 45
United States v. Cruikshank, 92 U. S. 542 102
United States v. Debs, 65 Fed. Rep. 210 46
United States v. Delaware & Hudson Canal Co., 213 U. S. 366 171
United States v. Demolli, 144 Fed. Rep. 363 48
United States v. Dempsey, 185 Fed. Rep. 450 50
United States v. De Mott, 3 Fed. Rep. 478 135
United States v. Easson, 18 Fed. Rep. 590 44
United States v. Erie R. Co., 235 U. S. 513 45
United States v. Gettysburg Electric Co., 160 U. S. 668 152
United States v. Green, 137 Fed. Rep. 179 127
United States v. Hall, 26 Fed. Cas. 75 42
United States v. Hall, 26 Fed. Cas. 79 102
United States v. Hart, 1 Peters’ C. C. 390 131
United States v. Harvey, 8 Law Reporter, 77 134
United States v. Hudson & Goodwin, 7 Cranch, 32 83, 108, 119
United States v. Inlots, 26 Fed. Cas. 482 92
United States v. Kendall, 5 Cranch (U. S. C. C), 275 28
United States v. Kennerley, 209 Fed. Rep. 119 50
United States v. Kimball, 26 Fed. Cas. 782 45
United States v. Kirby, 7 Wallace, 482 134
United States v. Kochersperger, 26 Fed. Cas. 803 41, 43, 93
United States v. Ling, 61 Fed. Rep. 1001 49
United States v. McCracken, 3 Hughes’ Reports, 544 135
United States v. Mills, 7 Peters’, 138 41
United States v. Moore, 104 Fed. Rep. 78 49
United States v. Musgrave, 160 Fed. Rep. 700 173, 175
United States v. Nathan, 61 Fed. Rep. 936 49
United States v. O’Donnell, 165 Fed. Rep. 218 49
United States v. Pearce, 2 McLean’s C. C. R. 14 41
United States v. Popper, 98 Fed. Rep. 423 49
United States v. Sears, 55 Fed. Rep. 268 45, 136
United States v. Stevens, 27 Fed. Cas. 1312 46
United States v. Stowell, 133 U. S. 1 43
United States v. Thayer, 209 U. S. 39 147
United States v. Thompson, 28 Fed. Cas. 97 41
United States v. United States Express Co., 5 Biss. 91 42
United States v. Warner, 59 Fed. Rep. 355 49
United States v. Wilson, 58 Fed. Rep. 768 49
United States v. Wilson, 1 Baldwin (U. S. C. C.), 78 40
United States v. Wood, 3 Wash. C. C. R. 440 41
Veazie v. Fenno, 8 Wallace, 533 168, 169
West Virginia v. Adams Express Co., 219 Fed. Rep. 794 147
Wilson v. Shaw, 204 U. S. 24 33
Zinn v. State, 83 Ark. 273 147
INDEX
Abolitionist literature. See Incendiary publications.
Adams, John Quincy, 78.
Administrative determination to exclude mail matter, conclusiveness
of, 57 ff.
Advertisements of intoxicating liquors, 146 ff.
Amendments to Constitution giving Congress power to construct
roads, 73.
Anarchistic publications and the postoffice, 118.
Antecedents of the postal power, 9-26.
Appropriations for national and local purposes, 79.
Arbitration of industrial disputes, 151.
Articles of Confederation, 72, 76, 81.
Bache, Richard, 15.
Baltimore and Ohio Railroad Company, 28.
Bank Note Case, 169.
Bankruptcy laws, uniformity of, 114.
Banks, power of Congress to charter, 80.
Barbour, J. S., 74.
Beck, J. M., 169 n.
Bilké, H. W., 108.
Blackstone’s Commentaries, 100, 101.
Blair, Postmaster General, 51 n.
Bonaparte, Charles J., 118 ff.
“Bonus Bill” for road construction, 66.
Brewer, Justice, 177.
Buchanan, James, 110-112.
Calhoun, J. C, 67 ff., 106 ff., 136 ff.
Canals, power of Congress to cut, 25;
to aid by appropriation, 72.
Carter, James C., 148.
Clapp, Moses E., 35.
Classification of mail matter, 29-30.
Clay, Henry, 71 ff., 110.
Cockburn, Lord, 50.
Codification of postal laws, 60.
Collectivist activities of post office, 33-36.
Commercial power of Congress, 155, 160.
Committee of the States, 20.
“Commodities clause,” 170.
Confederation, Articles of, postal clause in, 16;
inadequacy of the power vested in Congress by, 20-22.
Congress, power to establish postoffices, 26 ff.;
to secure the mails and punish improper use, 36 ff.;
to establish postroads, 61 ff.;
to own and operate railroads, 150;
to own and operate telegraphs and telephones, 156;
to extend control through exclusions from the mails, 158 ff.
Constitution, grant of postal power by, 23.
“Constitutional American Postoffice,” 13.
Constitutional Convention and postal power, 22-25;
and power to cut canals, 25;
and freedom of press, 98-100.
Constitutional morality, 180.
Constitutionality, of excluding obscene matter, 51;
lottery tickets and advertisements, 52;
fraudulent matter, 56;
anarchistic publications, 120;
of owning railroads, 150;
of owning telegraphs and telephones, 156;
of excluding libelous matter, 159;
of attempting indirect control, 160 ff.
Continental Congress, establishment of post by, 13.
Copyright, publications violating, non-mailable, 48 n.
Cotton futures, trading in, 164.
Crimes against the mails, 36-56.
Crimes in postoffices, 149 n.
Crittenden, Attorney-General, 131.
Crumpacker, E. D., 58 ff.
Cumberland Road, 62 ff., 82.
Cushing, Caleb, 140 ff.
Dallas, Secretary, 83.
Daniels, Justice, 90.
Davis, John, 111.
Dead Letter Office, 125.
Dead letters, 16.
Debs Cases, 46.
Defamatory matter non-mailable, 50.
Detention of mail, 131;
by postal employee, 133.
Dicey, A. V., 100.
Dickey Case, 91.
Due process of law, 126, 158 ff.
Eminent domain, federal power of, 15, 63, 70, 87, 91-92, 155.
Establish, meaning of, in postal clause, 81.
Exclusions from mails, and freedom of press, 114;
as denying due process of law, 178 ff.
Expansion of postal facilities, 26-33.
Extension of federal control over postroads, 150;
through exclusions from the mails, 158 ff.
Fairbanks, Richard, 11.
Farrar, E. H., 154.
Federal aid for national but not local purposes, 95.
Federal control, extension of, through exclusion from the mails, 159;
under taxing and commercial powers, 168-171.
Federal incorporation of railroads, 152;
of trading companies, 179.
_Federalist, The_, 9, 10, 65.
First Amendment to Constitution, 98 ff.
Fourth Amendment to Constitution, 123 ff.
Franking privileges, 14, 20.
Franklin, Benjamin, 12-15, 23.
Fraud orders, 56-60.
Freedom of press, 98-123;
meaning of constitutional guarantee, 100 ff.;
abridged by preventing circulation, 103;
and exclusions from mails, 158, 163.
Freight trains on Sunday, 130.
Freund, Ernst, 129 n., 159.
Gallatin, Albert, 63 ff., 82.
Gambling contracts, 163.
Gerry, Elbridge, 98.
Goddard, William, 13.
Good roads, congressional aid for, 34, 80.
Goodnow, F. J., 180.
Gouverneur, Samuel L., 104, 138.
Granger, Gideon, 27 n.
Grote, George, 180.
Hadley, Arthur T., 26.
Hamilton, Alexander, 99.
Heisler, R. C., 179.
Holt, Postmaster General, 143.
Incendiary publications, by northern abolitionists, 103 ff.;
power of Congress to exclude from mails, 107 ff.;
power of state to punish officials disseminating, 136 ff.
_Index Expurgatorius_, postal, 39, 158;
commercial, 170.
Internal improvements, 28, 61.
Interstate commerce, power of Congress over, 127;
analogy to postal power, 128;
power of states to exclude, 145;
exclusion from, of articles made by children, 170 ff.
Intoxicating liquors, excluded from mails, 40;
interstate commerce in, and police power of the states, 127.
Jackson, Andrew, 78 ff., 103.
Jay, Chief Justice, 62.
Jefferson, Thomas, 62 ff.
Johnson, Justice, 81.
Jones, Samuel, 25.
Judicial review of fraud orders, 58 ff.
Jurisdiction to try offence of depositing non-mailable matter, 53.
Kendall, Amos, 104 ff., 137 ff.
Kent, Chancellor, 42.
Kenyon, Lord, 100.
King, William R., 106.
Lacey Game Act, 127 n.
Lee, Richard Henry, 14.
Letter carrier routes, in cities as postroads, 43, 93.
Libelous publications, 159.
Limitations on postal power, 97, 158.
Lottery advertisements and freedom of press, 116.
Lottery tickets, excluded from mails, 52, 146;
in interstate commerce, 169, 174 ff.
Lovelace, Francis, 12.
McCray Case, 169.
McLean, Justice, 89.
Madison, James, 9, 62, 65 ff., 100.
Mail matter relating to current business of carrier, 44.
Mails, interference with, 10;
safety of, 19;
right of Congress to compel transportation by railroads, 29, 151;
classification of, 30;
what constitutes obstruction of, 46;
exclusions from, 47 ff.;
use of, to defraud, 56 ff.;
exclusion from, to extend federal control, 158-180.
_Mala prohibita_ and _mala in se_, 54, 135, 148.
Mann White Slave Act, 170.
Marketing by parcel post, 34.
Marshall, Chief Justice, 36, 81, 136 n., 153, 154, 169 n., 177.
Marshall, Louis, 172 n.
Maryland, Sunday observance in, 131.
_Mercury_ (Charleston), 104.
Money orders, 31.
Monroe, James, 27, 69;
“Views on Internal Improvements,” 74 ff.
Moon, J. A., 32.
Morris, Gouverneur, 24.
Morris, Thomas, 112.
Municipal streets and postroads, 150.
Neale, Thomas, 12.
Nelson, E. C., 65, 77 n.
Newlands, Senator, 161 n.
Newspaper Publicity Law, 121 ff., 164, 175.
Northern Pacific Railroad, 91.
“Nullification by Indirection,” 169 ff.
Obscene literature, in mails, 48, 146, 174;
definition of, 49;
in interstate commerce, 170.
Obstruction of the mail, 45 ff.;
what constitutes, 135.
Ohio, admission as state and Cumberland Road compact, 63.
Oleomargarine in interstate commerce and state laws, 127;
federal tax on manufacture of, 168.
Ordinance of 1782, 17-20, 36.
Original packages, 146.
Panama Canal Act, 161.
Parcels post, 30, 34.
Paterson, William, 22.
Paterson’s plan for Constitution, 41.
Penn, William, 12.
Penrose, Boies, 51 n.
Pinckney, C. C., 98.
Pinckney’s plan, 22, 98.
Police regulations by Congress concerning postoffice, 52.
Postal clause, in Articles of Confederation, 16;
discussion of, by constitutional convention, 22;
in Constitution, 23;
poor expression of, 25.
Postal crimes, severely punished, 37;
obstructing the mail, 37;
private competition, 37;
robbing the mail, 38;
meticulous enumeration in federal criminal code, 39;
articles excluded, 40;
constitutionality of laws, 40 ff.
Postal facilities, recognized function of state, 11;
beginnings of, in America, 12;
governmental monopoly of, 14;
importance of, 26;
in New Zealand, 33, 36;
denial of, to objectionable stock exchanges, 162 ff.;
to insurance companies, 164.
Postal laws, codification of, 60.
Postal monopoly, power of Congress to establish, 41.
Postal power of Congress, antecedents of, 9-26;
importance underestimated, 11;
granted by Articles of Confederation, 16;
by Constitution, 23;
and freedom of press, 98, 163;
limited by Fourth Amendment, 123;
may not deny due process of law, 178;
and police power of the states, 127 ff.;
as a means of extending federal control, 158 ff.
Postal savings banks, constitutionality of, 32.
Postal telegraphs and telephones, 156-157.
Postmaster general, office of, for America created, 12;
Franklin appointed, 14;
duties of, 18;
salary increased, 28;
made member of Cabinet, 28.
Postoffice, American, extension of functions, 10;
under Articles of Confederation, 17-22;
temporary establishment by Congress, 26;
expansion of power of Congress to establish, 26 ff.;
collectivist activities, 33.
Postoffice, British, service in colonies, 14.
Postoffice employees, exemption from military duties, 15;
punishment by state for performing federal duty, 136 ff.
Postroads, power of Congress to establish, 10, 61 ff.;
to appropriate for, but not construct, 72;
power of states over, 84 ff.
Power of states to delay carriage of mails, 131 ff.
Presbyterian Church, 127.
Press, freedom of, 54, 98 ff., 103, 158, 163.
Preston, William C., 106.
Princeton, robbery of mail at, 20.
Prize fights, moving picture films of, 158.
Publicity of corporate affairs, 161.
Publishers granted special postal rates, 29.
Pujo Money Trust Committee, 162, 172 ff.
_Questione Sociale, La_, 118 ff.
Railroads, federal incorporation of, 10, 94;
subsidies to, for carrying mails, 28 ff.;
in Alaska, 80;
as postroutes, 92.
Receipt of mail matter, power of state to forbid, 145 ff.
Religious freedom, 159.
Republican form of government, guarantee to state of, 144.
Right to use the mails, 52, 112, 178 ff.
Road construction and transportation of mails, 61 ff.
Roosevelt, Theodore, 51 n., 118, 150.
Rural free delivery, 34.
Schofield, Henry, 101 n., 102, 117 n.
Schroeder, Theodore, 51 n.
Searches and seizures, unreasonable, 123 ff.
Sealed letters and packages, not open to inspection, 124 ff.
Second class privileges, 121, 164 ff.
Secretary of agriculture, 34.
Secretary of labor, 35.
Sedition, power of Congress to punish, 103, 107;
constitutionality of sedition act, 107.
Semple, James, 85.
Sherman, Roger, 23, 98.
Sherman Act, 161.
_Southern Patriot_ (Charleston), 104.
State bank notes, tax on, 168.
State laws preventing circulation of incendiary matter, 104.
States, consent of, for construction of postroads, 72, 82;
authority of, over postroads, 96;
power of, to interfere with the mails, 127 ff.
Stock exchanges, incorporation of, 162 ff.
Story, Joseph, 9, 10, 81 n., 99 n., 108.
Sunday mails, 128 ff.
Sunday observance laws, 130.
Taft, President, 165 n.
Taney, Chief Justice, 88, 91, 134.
Tappan, Arthur, 104.
Taxation for purposes of regulation, 168.
Taxing power of Congress, 160.
Taylor, Hannis, 55, 97.
Telegraphs, federal ownership of systems, 10, 156.
Telephones, federal ownership of, 10, 156.
Tolls, right of state to charge mail carriers, 136 ff.
Tonnage duties, 61.
Tucker, John Randolph, 108, 142.
Unemployment bureaus and the postoffice, 35.
Unmailable matter, 47 ff.;
large packages, 47;
articles likely to damage mail, 47;
intoxicants, 48;
obscene matter, 48;
showing defamatory language, 50;
lottery tickets, 52;
fraudulent matter, 56.
Untermyer, Samuel, 172 n.
Use of mails as crime against state, 146 ff.
Use of mails as privilege or right, 173.
Van Buren, Martin, 74.
Von Holst, H. E., 75, 95, 97.
Wakeman, T. B., 51 n.
Washington, George, 62.
Webb-Kenyon Act, 113 n., 127 n., 146 n., 148.
West Virginia prohibition law, 147.
White, Chief Justice, 165.
Wickersham, Geo. W., 44.
Willoughby, W. W., 159, 170.
Wilson, James, 23.
Wilson, Secretary, 35.
Wilson, Woodrow, 180.
Wilson Act, 127 n.
Wise, Governor, 142.
Working on Sunday, state laws to punish, 130.
Young, J. S., 62 n., 77 n.
VITA
Lindsay Rogers was born in Baltimore on May 23, 1891. He attended
the public schools, studied under private tutors, and received the
degree of Bachelor of Arts from the Johns Hopkins University in 1912.
He then began graduate work in Political Science under the direction
of Professor Willoughby, with Private Law (LL.B., University of
Maryland 1915) and Political Economy as subordinate subjects. He was a
University Fellow, 1914-1915, and was admitted to the Maryland Bar in
1915. Since 1909 he has done considerable newspaper work.
FOOTNOTES
[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.