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).
[327] Ex parte Jackson, 96 U. S. 727 (1878); see the quotation from
this case, below, pp. 115-116.
[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.
Transcriber’s Notes
Punctuation, hyphenation, and spelling were made consistent when a
predominant preference was found in this book; otherwise they were not
changed.
Simple typographical errors were corrected; occasional unbalanced
quotation marks retained.
Ambiguous hyphens at the ends of lines were retained.
Index not checked for proper alphabetization or correct page references.
Footnotes, originally at the bottoms of pages, have been collected and
moved to the end of the book, after the Index.
Text uses “post office” and “postoffice”, “post roads” and “postroads”;
both forms retained here.
End of Project Gutenberg's The postal power of Congress, by Lindsay Rogers