Читать книгу The postal power of Congress: A study in constitutional expansion - Lindsay Rogers - Страница 6

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Expansion of Facilities.—“Our whole economic, social and political system,” says President Hadley, “has become so dependent upon free and secure postal communication, that the attempt to measure its specific effects can be little less than a waste of words.”49 This is hardly an overstatement of the case, yet, as we have seen, the importance of the postal function was recognized before the Constitution was adopted and when it comprehended only the transmission of intelligence. The increased importance, however, has been absolute as well as relative, since through the postoffice the government now does much more than merely facilitate communication between its citizens.

An act for the temporary establishment of the postoffice was passed by Congress on September 22, 1789.50 It provided for the appointment of a postmaster general, all the details and regulations to be as they “were under the resolutions and ordinances of the late Congress. The postmaster general to be subject to the direction of the president of the United States, in performing the duties of his office, and in forming contracts for the transportation of the mail.”51

For a considerable period congressional and administrative efforts were devoted almost exclusively to the extension of facilities; postoffices were established as rapidly as possible; every effort was made to secure speedy transportation of the mail, to insure its security, to prevent private competition, and by means of an increasingly efficient system to weld together distant parts of the country. The communications of the postmasters general are devoted to recommendations for the improvement of the service;52 presidential messages take pride in reporting the growth of the establishment, which was rapid. In 1790 there were about 100 postoffices in the country; the receipts from October, 1790 to October, 1791 were $31,706.27 and the disbursements left a balance of $5,498.51.53

But in 1823 Monroe was able to report to Congress that 88,600 miles of postroads had been established by law and that the mail was transported over 85,700 miles of this total.54 During the two years from July 1, 1823 the increase of the transportation of the mail exceeded 1,500,000 miles annually and 1,040 new postoffices were established.55 In 1828 the total mileage was 114,536 as compared with 5,642 in 1792 and in 1837 was 142,877 miles.56 The receipts from postage for the year ending March 31, 1828 were $1,058,204.34. These figures serve, in some measure at least, to indicate the rapid expansion of the postal system.57

At the same time there was a commensurate recognition of the importance of the establishment in the attitude of Congress and the executive in dealing with it as an administrative arm of the federal government. The act of 1810 referred to the “postoffice establishment”; an incidental use of the word “department” is to be found in the laws of 1799 and 1810,58 but the system became an executive department in 1872 when Congress, codifying the postal laws, passed an act under which the department is now organized.59 In 1827 the postmaster general’s salary was increased to $6,000 per annum, and he was thus placed on an equality with cabinet officers; two years later Jackson made him a member of his official family.60

Later in this essay will be found a consideration of the use made by Congress of the postroads clause,61 in the assumption of authority to aid in works of internal improvement, but here some mention should be made of the connection which has existed between the desire for a speedy transportation of the mail and aid granted to railroads. This aid took the form of donations, with mail service free or at reasonable rates, loans to companies, and general contracts for service, with the purpose of giving aid as well as paying compensation.62 In debating the desirability of governmental stock subscriptions in transportation undertakings Congress often adverted to the carriage of the mails; and in 1834 it was proposed to give the Baltimore and Ohio Railroad Company $320,000 in return for which the mail was to be carried free forever.63 Similar suggestions were made from time to time, but there was little definite action, and in 1845 the postmaster general was authorized to contract for the transportation of the mail by railroads, without inviting bids.64

Since 1850 the postoffice has not been used, at least avowedly, to aid railways; the period has rather been one of regulation. Disputes have arisen over the proper compensation for service rendered, and companies have refused to give facilities for transportation.65 It was proposed, therefore, that the roads be forced to carry the mails, and in 1870 an act to this effect was applied in the District of Columbia, compensation to be determined by three commissioners. But in 1872,66 the codification of the postal laws provided rates for service, with compulsory service by the roads which had received land grants; if the companies were not satisfied with the amounts fixed by Congress, letters were to be forwarded by horse, and the articles for which expedition was not required, were to be sent by stage.67 At present compensation is determined by an elaborate system, under maximum rates fixed by Congress. The postmaster general may make reductions for refusal to transport, when required, upon the fastest trains,68 and may impose fines for inefficient service and delays.69 The necessity has not arisen, but if the railways should refuse to carry the mails, on the ground of inadequate compensation, Congress would have the right to compel transportation, upon reasonable compensation for the taking of private property for public use.70

This, however, is only one phase of the financial problem of the postoffice; another, very important phase involves the cost to patrons. Rates for the transmission of letters remained practically unaltered until 1845, while the charges for newspapers were slightly changed in the direction of allowing the publishers special privileges. The act of 184571 exercised a broad authority of classification, separating the mail in order to expedite it, and introducing the free privilege for newspapers not more than 1,900 square inches in size, distributed within 30 miles of the place of printing. The act of 184772 allowed free exchanges only between publishers, and following this statute many changes were made, both in the conditions of exemption from postage and the rates which were charged. The classification now obtaining was adopted in 1879,73 and the cent a pound rate for periodical matter admitted to “second class” privileges was fixed in 1885.74

But while concessions were made to encourage the circulation of newspapers, Congress maintained rigid restrictions in respect to the size of the packages that could be carried in the mails. The limit was three, and later four pounds. This was originally due to the fact that large packages could not be handled with convenience by the system and were likely to injure or deface other mail matter. But when federal facilities became sufficient to take off, or at least raise, the weight limit, the express companies, which at this time were beginning to derive a large revenue from carrying parcels, were able to postpone congressional action until August 24, 191275 when the Parcels Post Act was passed after it had been repeatedly recommended by postmasters general and long desired by public opinion.76 Such delay has, of course, not been without bitter criticism,77 and in the forties the rise of the express companies, and their transportation of large packets and in some cases of matter which the postoffice undertook to carry, reduced federal revenues and seriously interfered with the efficiency and effectiveness of the government monopoly.78 But at any time the situation could have been remedied by congressional action. On the other hand, objection has been made to the assumption by Congress under the postoffice clause, of the functions of a common carrier, on the ground that they were not comprehended by the original grant.79

Now, Congress clearly has the power to insure, upon the payment of extra fees, the safe transmission of letters or packets to the addressees, but the postal money order system cannot be justified upon any such theory. The act of May 17, 186480 authorized the postmaster general to establish, “under such rules and regulations as he may find expedient and necessary, a uniform money order system at all post-offices which he may deem suitable therefor.” The law fixed thirty dollars as the maximum amount for which an order could be issued, the purpose of the system being to afford “a cheap, immediate and safe agency for the transfer through the mails of small sums of money.”81 In practice the payee or party for whom the money was intended, was not named in the order, which was given to the applicant upon the payment of the sum specified and the proper fee, and his filling out a printed form of application. This was forwarded to the postmaster at the office upon which the order was drawn, and the latter, therefore, had the information necessary to detect fraud if any was attempted. The issue of these postal notes was discontinued in 1894,82 although their use has since been urged;83 under the money order system as it now obtains, the payee is named in the instrument.84

In the Senate there was no debate other than on the administrative features of the law of 1864;85 the constitutional question was not discussed. Some doubt, however, has since been expressed as to the power of Congress to establish a system of postal savings banks. These were, according to the title of the act, to hold “savings at interest with the security of the government for repayment thereof, and for other purposes.” It was provided that available funds should be used in the redemption of United States bonds, and the act recited, “that the faith of the United States is solemnly pledged to the payment of the deposits made in the postal savings depository offices, with accrued interest thereof, as herein provided.” This section would seem to imply that the receiving of deposits could be considered as borrowing money on the credit of the United States.

Objection, upon constitutional grounds, was, however, made by Mr. Moon of Tennessee, in a minority report which he presented to the House of Representatives.86 He argued that no express authority could be found in the Constitution, and that “the depository is not a bank within the legal meaning of that word; nor do the trustees created by this act collect money (deposits) from the people for governmental purposes, but simply become federal trustees of private funds for loan or reinvestment at interest.”

It would seem, however, that the provision for redeeming United States bonds and the general tenor of the law, could, without violence, enable the system to be looked upon as established for the purpose of borrowing money on the credit of the United States, or of obviating in some degree the issuance of emergency currency in financial crises through the deposit with the government, and subsequent circulation, of large sums of money which has hitherto been hoarded. But apart from this, while extensions of the postal function to include banking facilities for the receipt of deposits and the issuance of money orders, were certainly not contemplated by the framers of the Constitution, and are not connected with the transmission of intelligence, they are, from foreign precedent, logical parts of the modern postal power. It is extremely difficult, moreover, for a citizen to show an amount of interest sufficient to bring before the courts the constitutionality of such non-essential functions of the government.87 And especially is this the case when their exercise does not entail taxation, but actually results in increased revenues, and interferes slightly if at all, with the exercise of the same functions by private undertakings. Finally, it should be remembered that the powers granted in the postal clause “are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances.”88 According to this view there is no constitutional doubt as to the right of the postoffice to engage in the banking activities thus far attempted.

Collectivist Activities.—The primary purpose of the postal power is, of course, the transmission of intelligence, but with vast equipment and organization once in existence, it is a comparatively simple matter for the government to increase in number and in kind, the services which the postoffice may perform for its patrons. In New Zealand postoffices, for example, a person can buy stamps, mail a letter or parcel, send a telegram, deposit money, collect a pension, report births and deaths, and insure his life.89

It is due, in part, at least, to the federal system of government in the United States that Congress has been reluctant to increase the functions of the postoffice. But the money order system and postal savings banks have now been established, and it seems inevitable that the telegraph and telephone systems of the country will shortly be nationalized.90 So also rural free delivery has caused congressional aid to be given to the good roads movement and several schemes have been proposed for extensive road construction under federal auspices.91

The inauguration of the parcel post, which in fact has made the postoffice a common carrier, has led to serious efforts on the part of the government towards an adequate appreciation, by possible users, of the advantages of the new facilities, and a campaign of education is carried on, not so much with a view of increasing revenues, as of fostering the “producer to consumer” movement, particularly in farm products. Congress authorized the Secretary of Agriculture “to acquire and diffuse among the people of the United States useful information on subjects connected with the marketing and distributing of farm products” and under this authority the Office of Markets was established on May 16, 1913.92 It employs specialists in marketing various commodities, and issues bulletins on the facilities for, and advantages of, shipping different products by parcel post. Agents are sent to appropriate sections of the country to do personal work and local offices are active in collecting lists of the names of farmers and others who have produce to sell, and printing and distributing these lists to postal patrons who may become purchasers.93

It is proposed, furthermore, to use postoffices as employment bureaus, and a bill, the adoption of which was strongly urged on the Sixty-third Congress by Senator Clapp, provided that the postmaster general establish, “under such rules and regulations as he may prescribe, mutual employment exchanges at all presidential postoffices, where registers may be kept of any and all persons who make application to be registered, as either seeking employment, or seeking employees, which information may also be exchanged between such offices, all in the interest of the proper and timely distribution of labor throughout the country.”94 This service would be made self-sustaining through the sale of registration stamps. The bill failed of passage.

But pending action of this character, or the adoption by Congress of legislation designed to lessen unemployment without using the postoffice, the Secretary of Labor and the Postmaster General, cooperated in formulating an arrangement by which “information relating to the distribution of labor could be widely scattered and posted under the auspices of the United States Government.

“The plan,” Secretary Wilson goes on to explain, “consists of dated bulletins sent out by the Department of Labor to postmasters throughout the country, by whom they are posted on the bulletin boards so that every postoffice patron,—and this means every man, woman and child,—can easily refer to the information. These are known as ‘Bulletins of Opportunities.’ They are replaced with others from time to time as necessary, and suitable notice is given when they become inoperative. This plan has received the indorsement of the various state authorities, who have been, and are, cooperating with the Department of Labor in scattering information about labor opportunities and conditions in their respective states.”95

In collectivist facilities, either at present in existence or very seriously urged, the American postoffice is, then, not far behind that of New Zealand. It affords a significant illustration of the tendency of the federal government gradually to engage in many activities, properly national, which are too big for the states, and too expensive or paternalistic for private undertakings. The aim is that the maximum benefit may inure to the citizen.

Postal Crimes.—The postal power, as Marshall pointed out in McCulloch v. Maryland,96 “is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the postroad, from one postoffice to another. And from this implied power has again been inferred the right to punish those who steal letters from the postoffice, or rob the mail. It may be said with some plausibility that the right to carry the mail and to punish those who rob it is not indispensably necessary to the establishment of a postoffice and postroad. The right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence.”

Such a power was asserted even before the adoption of the Constitution; the Ordinance of 1782 meticulously forbade the employees to delay or rob the mails, under penalty of fines “to be used for and recovered in an action of debt” by the treasurer of the United States; a supplementary ordinance attempted to establish a monopoly, and it was made lawful for the postmaster general “to allow and pay to any informer, one moiety of the penalties which may be recovered upon his information, for offences, against the fourth and fifth clauses of the above mentioned ordinance.”97

The Act of February 20, 179298 greatly extended these criminal provisions, infraction of which was to be punished in the federal courts. Some of the penalties provided for the more serious offences now seem severe, but they are evidence of how important Congress deemed the inviolability of the mails. By this act it was provided, “that if any person shall obstruct or retard the passage of the mail, or of any horse or carriage carrying the same, he shall, upon conviction, for every offence pay a fine not exceeding one hundred dollars. And if any ferryman shall, by wilful negligence, or refusal to transport the mail across any ferry, delay the same, he shall forfeit and pay, for each half hour that the same shall be so delayed, a sum not exceeding ten dollars.” A fine and disqualification for holding any office under the United States were the penalties inflicted “if any deputy postmaster or other person authorized by the postmaster general to receive the postage of letters, shall fraudulently demand or receive any rate of postage, or any gratuity or reward, other than is provided by this act for the postage of letters or packets.” Vessels were forbidden to enter any port of the United States and break bulk until their letters had been delivered to the postmaster, and the officer of the port could require an oath of delivery. Exception, however, was made in the case of letters to the owner or consignee, and when the vessel had letters directed to another port.

In an effort to make the postal system efficient by insuring it against private competition and the consequent diminution of revenues, there was a provision (still in force, although modified), declaring the federal establishment a monopoly and making any infringement punishable by a fine. The act recited “that if any person, other than the postmaster general or his deputies, or persons by them employed, shall take up, receive, order, dispatch, carry, convey, or deliver, any letter or letters, packet or packets, other than newspapers, for hire or reward, or shall be concerned in setting up any foot or horse post, wagon or other carriage, by or in which any letter or packet shall be carried for hire, on any established postroad, or any packet or other vessel or boat, or any conveyance whatever, whereby the revenue of the general postoffice may be injured, every person so offending shall forfeit for every such offence, the sum of two hundred dollars.99 Provided, that it shall and may be lawful for every person to send letters or packets by special messenger.”

Fine and imprisonment were the punishments for unlawfully delaying, embezzling, secreting, or destroying any letter or package not containing money; but if the letter or packet contained any kind of money, negotiable paper, bonds, or warrants, the punishment upon conviction was death. The carrier was forbidden to desert the mail before he reached his destination; robbing any carrier,100 the mail, or the postoffice was punishable by death. Ten dollars was the penalty for an unlawful use of the franking privilege. One half of all the fines recovered went to the persons informing and prosecuting for the offences, and in 1797 it was provided that accomplices in the commission of postal crimes should be subject to the same punishment as the principals.101 In 1810 whipping was abolished,102 but the death penalty for a second robbery, or for putting the carrier’s life in jeopardy, was continued. This is strong evidence of congressional insistence upon the sanctity of the mails, since in 1825 only fine and imprisonment were the punishment for assaults on the high seas, or within admiralty jurisdiction with intent to commit a felony.103

Upon the basis of these early regulations, Congress has passed many laws calculated to prevent interference with the mails or their misuse; most of the original crimes are still forbidden and the changes made have been in detail rather than character, with one important exception: there has gradually been built up an Index Expurgatorius of articles which it is unlawful to deposit in, or to take from, the mails for purposes of circulation. But with this exception, the penal laws do not differ radically from those of a century ago.

Nearly all “Offenses against the Postal Service” have been brought together as Chapter 8 of the Criminal Code of the United States.104 It is now unlawful to conduct, or profess to conduct, a postoffice without authority; to carry the mail otherwise than according to law; to set up private expresses; to transport persons unlawfully conveying the mail; to send letters by private express or for carriers to convey them over regular post routes otherwise than in the mail; to wear the uniform of a carrier without authority or to pose as a carrier of the United States mail when such is not in fact the case. Injuring mail bags, stealing postoffice property, stealing or forcing mail locks or keys, breaking into or entering a postoffice, unlawfully entering a postal car, stealing, secreting and embezzling mail matter or its contents,105 assaulting a carrier with intent to rob and robbing the mail; injuring letter boxes or mail matter; “knowingly and wilfully” obstructing or retarding the passage of the mail, all are crimes punishable in the federal courts.

It is an offence for any employee of the service to detain, destroy or embezzle a letter or newspaper; for a ferryman to “delay the passage of the mail by willful neglect or refusal to transport”; for the master of a vessel to fail to deposit with the postoffice all mail from abroad or to break bulk before making such delivery. No one may sell or use a cancelled stamp or remove the cancellation marks; postal employees, moreover, are prohibited from making false returns to increase their compensation, from unlawfully collecting postage, from failing to account for postage or to cancel stamps, and from issuing a money order without payment.

There are also, as I have indicated, a number of laws denying the use of the mails for the transmission of obscene or libellous writings, lottery tickets and advertisements, fraudulent matter, poisons, intoxicating liquors, explosives and similar articles which come under the ban of the police power. Furthermore, the complexity of political life and more numerous administrative problems in the service, have given rise to a separate class of offences; thus it is criminal for a member of Congress to be interested in a public contract, or a postal employee in a mail contract; or for an employee to make or receive a political contribution. There is, finally, the so-called “newspaper publicity law,” the concluding paragraph of which compels, under penalty of a fine, the marking as an advertisement of all reading matter for the publication of which a valuable consideration is received.106

Marshall’s dictum in McCulloch v. Maryland has remained unquestioned; it has never been doubted that Congress has the power to punish offences against the mails themselves, or neglect of duty by postal employees. The constitutionality of such legislation has never been attacked; the courts have only been called upon to decide technical points. For example, the word “rob” is used in its common law sense; jeopardy “means a well-grounded apprehension of danger to life, in case of refusal or resistance”; pistols are dangerous weapons within the meaning of the law; and “all persons present at the commission of a crime, consenting thereto, aiding, assisting, or abetting therein, or in doing any act which is a constituent of the offence, are principals.”107 The detention of mail by one employed in the postoffice, refers to a letter or packet before it reaches its destination; the taking must be clandestine and the intent criminal.108 An indictment for advising a carrier to rob the mail must aver that the offence has been committed;109 a sword in the hand, although not drawn, is a dangerous weapon; a pistol is presumed to be charged.110 These are some of the questions that the courts have been called upon to determine.

Nor has there been any dispute as to the power of Congress to establish a monopoly by forbidding private postal enterprises.111 As was pointed out in an early case, “No government has ever organized a system of posts without securing to itself, to some extent, a monopoly of the carriage of letters and mailable packets. The policy of such an exclusive system is a subject of legislative, not of judicial inquiry. But the monopoly of the government is an optional, not an essential part of its postal system. The mere existence of a postal department of the government is not an establishment of the monopoly.”112 Thus questions have arisen as to the extent and scope of the original provision and the amendments that have been made to it.

In 1834, for example, New Orleans citizens complained of slow mails, and proposed a plan of forming a private association for a daily express line to New York. But the project being referred to Chancellor Kent for his opinion, he advised that “the objects of the association cannot be carried into effect, in the way proposed, without violating the postoffice law.”113 In 1844 the Attorney General gave an opinion that letters carried over mail routes by private carriers could not be charged with postage, nor could the letters be detained; the only available course was “to enforce the penalties to which all unauthorized carriers of letters on the mail routes are by law subjected.”114

As for the general interpretation of the statute, a federal circuit court, in holding that it was not unlawful to carry an unstamped letter of advice concerning money shipped by express, said: “These provisions of the postoffice law, being in derogation of common right, must be construed strictly, and in the absence of clear and explicit language, forbidding the carriage of a letter, under the circumstances indicated, we must hold that the right to do so is not interfered with.”115 The Supreme Court of the United States, however, had previously declared that the act was undoubtedly a revenue law,116 although “not drawn with all the precision and explicitness desirable in penal legislation.” And the rule of interpretation as laid down by the Department of Justice was that the acts “are not subjected to the narrow rules formerly applied in the construction of penal statutes.... In our courts, such acts receive the same construction that would be put upon any other remedial legislation; that is, a fair, sensible, practical interpretation, without reference to any merely technical rule in favor of the accused.”117

The question arose in 1858 as to the legality of carrying letters to and from the postoffice in a town where a public carrier had not been appointed. The attorney general was of the opinion that the act forbade this. “A person,” he said, “who intends to make the carrying of letters his regular business, or part of his business, and to do it periodically for hire, in opposition to the public carrier, is legally incapable of receiving authority to take letters out of the postoffice for that purpose.”118 But when the question went to the courts, a contrary position was taken. The Act of March 3, 1851119 authorized the postmaster general “to establish postroutes within the cities or towns.” The court held that the word “postroutes” was not synonymous with “postroads” used in that portion of the act of 1827 which made criminal attempts to compete with the federal government in carrying the mail. Hence private letter carriers violated no law. This decision,120 however, was overruled when Congress extended121 the provisions of the Act of 1827 to all postroutes already, or thereafter established, and in 1872122 declared letter carrier routes within cities “postroads.”123

Thus when an express company had a number of messengers to collect letters daily from certain customers who paid with private stamps, previously sold, the letters being taken to an office, sorted, and dispatched to the addressees, the court held that these deliveries could not be deemed “by messenger employed for the particular occasion only,” but were deliveries “by regular trips and at stated periods,” and the defendant was therefore liable.124

There has always been the exception that the carrier is permitted to transport, otherwise than in the mail, letters or packets relating “to some part of the cargo of such steamboat or other vessel, to the current business of the carrier, or to some article” carried at the same time.125 Under this inhibition it is not lawful for a railroad company to carry letters from one connecting line to another line, when the letters relate to through business. The letters must be sent by, or addressed to, the carrying company.126 But in 1912 Attorney General Wickersham decided that a railroad might carry over its lines, not in the mail, letters written by the secretary of a relief association (which was composed of the employees of the railroad) to the railroad company, but not letters from the officers of the association to its members.127

In 1915 the Supreme Court was called upon to construe the statute and held within the “current business” exception “letters of a telegraph superintendent, jointly appointed and paid by a railway company, and a telegraph company, which were written to a railway station agent and telegraph operator with the purpose of promoting the efficient and successful operation of the telegraph business in the success of which the railway company, under the contract with the telegraph company, has a financial interest.” The Court refused, however, to consider whether the statute is “penal or remedial, or whether it is to have a strict or a liberal interpretation.”128

Another class of offences has arisen out of the section providing punishment for “whoever shall knowingly and wilfully obstruct or retard the passage of the mail,” or any conveyance by which it is being carried. Wide extension of federal authority and effective federal supremacy have been enforced under this provision, it having been held that a defendant toll gate keeper cannot plead the justification of a state law for stopping a carrier of the mail.129 It has been decided, also, that mail matter in the postoffice, ready for delivery, is “obstructed” within the meaning of the statute by an unprovoked assault on the postmaster. “The law presumes that the defendant intended by his act the result which followed and the offense is complete.” An act, if unlawful, resulting in an obstruction, is per se done knowingly and wilfully.130

Preventing a mail train from running as made up, even though one is willing that the mail car shall go on, is an obstruction within the meaning of the statute,131 and where the regular passenger trains of a railroad company have been selected as the ones to carry the mail, the failure of the railroad to run other trains for that purpose is not necessarily unlawful.132 It is no defense, however, that the obstruction was effected merely by leaving the employment, “where the motive of quitting was to retard the mails, and had nothing to do with the terms of employment.”133

These doctrines were given their widest scope in the Debs cases. It was held that an indictment for obstructing the mails need not set out that the act was done feloniously, since the crime was not a felony at the common law; nor, furthermore, is it necessary to show knowledge that the mails would be interfered with. “The laws make all railways postroutes of the United States,” said the court, “and it is within the range of everyone’s knowledge that a large proportion of the passenger trains on these roads carry the mails.” Finally where the indictment is for conspiracy to obstruct the mails, and overt acts in pursuance thereof, “it is not restricted to a single overt act, since the gist of the offense is conspiracy, which is a single offense.”134

The authority of Congress may, moreover, be enforced otherwise than by prosecution for violations of this provision. “The entire strength of the nation,” said the Supreme Court, “may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws.” And the Supreme Court went on to declare that “it is equally within its [the federal government’s] competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the jurisdiction of the courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; ... that the proceeding by injunction is of a civil character and may be enforced by proceedings in contempt; that such proceedings are not in execution of the criminal laws of the land; that the penalty for a violation of the injunction is no substitute for and no defence to a prosecution for any criminal offences committed in the course of such violation.”135

When we turn, however, to the power of Congress to exclude from the mails, a different problem is presented. As has been pointed out, early in the history of the postoffice, mail matter was classified according to its character and different rates of postage were charged. In 1799 the Postmaster General sent a letter to Congress complaining of “large and inconvenient packages” and the Act of 1810 provided that “no postmaster shall be obliged to receive, to be conveyed by mail, any packet which shall weigh more than three pounds.”136 Congress, therefore, very early exercised the right of determining what articles should be mailable and the conditions upon which they should be carried.

These exclusions were made to protect the mails. Objection was made to the “inconvenient packages” on the ground that the transit was retarded and smaller articles were injured. Such restrictions have been maintained, the postoffice regulations now prescribing the limits, both of weight and size. Congress has, moreover, on the same ground, conditionally excluded a variety of articles, such as poisons, explosives, inflammable materials, infernal machines, disease germs, and all compositions liable to hurt anyone or injure the mails. It is provided, however, that the postmaster general “may permit the transmission in the mails under such rules and regulations as he shall prescribe as to preparation and packing” of any of these articles, “not outwardly or of their own force dangerous or injurious to life, health and property.” Intoxicating liquors are absolutely excluded. Any violations of the statutory provisions or of regulations made by the postmaster general in pursuance of the authority given him, are punishable by fine and imprisonment.137

The absolute exclusion of intoxicants, however, cannot be justified upon the same principles as the conditional exclusions, since the danger to the mails can only arise from the fact that they are liquids. This distinction leads naturally to another class of articles which are denied postal facilities on account of the effect they will have on recipients. In this class is all printed or written matter which is obscene, libellous and indecent, or which relates to lotteries and fraudulent schemes.138

The first inhibition was made by Congress in the Act of March 3, 1865, and by the Act of June 8, 1872, codifying previous laws and organizing the postoffice on its present basis, the use of the mails was denied to obscene matter, cards “upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved” and “letters or circulars concerning illegal lotteries.”139 It has since been made criminal to take obscene or scurrilous matter from the mails for purposes of circulation.140

Before the Supreme Court of the United States, the power of Congress to exclude obscene and indecent matter from the mails141 has never been seriously questioned, and the points presented for determination, largely to the lower federal courts, have not been as to the constitutional authority of Congress.142 In 1890, the Supreme Court held that under the Act of July 12, 1876 it was not an offence to deposit in the mails an obscene letter, enclosed in an envelope, and refused to consider the amendment made in 1888 which had extended the inhibition to sealed matter, closed to inspection.143 But in 1895, the Court determined that while the possession of obscene pictures is not forbidden, it is an offence to deposit in the mails a letter, not in itself objectionable, but conveying information as to where, and of whom, such pictures could be obtained.144 And the next year the Court refused to accept the defence that the obscene matter was mailed in reply to decoy letters by a government detective.145

It was held, moreover, that “the words ‘obscene,’ ‘lewd’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.”146 The penal code of 1909 extended the language to exclude “every filthy” book, pamphlet, picture or letter, and this in effect overruled the Swearingen case.147

There have been questions, also, as to the requirements for a valid indictment, which, it has been held, need not set out the objectionable matter, but must inform the accused of the nature of the charge against him.148 The courts have varied as to whether the test of obscenity is that laid down by Lord Cockburn: Is the tendency of the matter “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort would fall”?149 or the dictionary meaning as “offensive to chastity, decency or delicacy.” The question as to what is obscene, however, is for the jury to determine.150

Congress has also denied postal facilities to “all matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which any delineations, epithets, terms, or language of an indecent, lewd ... libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent.” This prohibition has been extended to include a postal card demanding the payment of a debt and stating that “if it is not paid at once we shall place the same with our lawyer for collection.”151

It has been held, however, that “outside cover or wrapper” does not include the outside sheet of a newspaper and thus the postal authorities are unable to exclude periodical publications on the ground that they contain scurrilous or defamatory matter.152 From time to time bills have been introduced in Congress to authorize the postmaster general to exclude from the second-class privilege publications, as such, single issues of which are found to contain such non-mailable matter; but no favorable action has ever been taken by Congress on any of these bills. An effort has also been made to deny all postal facilities in such cases.153

Vigorous objection has been made to the validity of laws excluding obscene matter, but the arguments have in no case any authoritative sponsorship. One writer, for example, urges that “under the pretext of regulating the mails,” Congress controls “the psycho-sexual condition of the postal patrons.” “The statute,” he goes on to say, “furnishes no standard or test by which to differentiate what book is obscene from that which is not.”154 Such a contention, so far as it is one of constitutional weakness in Congress is plainly invalid. Immoral libels are an offence at the common law, “not because it is either the duty or province of the law to promote religion or morality by any direct means or punishments, but because the line which must be drawn is between what is and is not the average tone of morality which each person is entitled to expect at the hands of his neighbor as the basis of their mutual dealings.”155 The standard to determine what is obscene is the same as that which has prevailed at the common law.

The right of individuals to use the mails is not an absolute one; the legislative department of the government may impose reasonable restrictions on its exercise. It may say that a public convenience is not to be used to injure the morals of the citizens and may exclude such injurious matter, not with the view of making immorality criminal, but simply in order that the circulation may not be encouraged by the government. And to make this denial of facilities effective, Congress may punish violations. The grant of the postal power (to borrow the language used by the Supreme Court in a commerce case) “is complete in itself,” and “Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations.” The right to use the mails is “given for beneficial exercise,” and may be denied when it “is attempted to be perverted to and justify baneful existence.”156

With regard to lotteries, however, the case is not so clear. The law declared that “no letter or circular concerning [illegal] lotteries, so-called gift concerts, or other similar enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretenses, shall be carried in the mail,” and made violation criminal.157 In 1876 the word “illegal” was stricken out, so that letters or circulars concerning all lotteries were prohibited,158 and in 1890 the law was further amended so as to include lottery advertisements in newspapers and to permit postmasters to withhold suspected mail.159 Trial of offenders may take place either in the district where the letter was mailed, or that to which it was addressed.160

The Senate Committee in charge of the amendments proposed in 1890, reported the bill to be based “on the conceded power of the government to determine what character of matter may be sent through the mails; and its purpose is to protect the general welfare and morality of the people against the pernicious effects of lotteries.”161 For authority the committee relied upon the case of Phalen v. Virginia, in which the Supreme Court said:

“The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community: it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.” At common law, the committee argued, the king could not sanction a nuisance; by parity of reasoning a nuisance may be denied governmental encouragement.162

All of the anti-lottery legislation, enacted by Congress, has been sustained by the Supreme Court of the United States, although, I think, the reasoning might well have been more cogent. In the first case arising under the earlier legislation, the Court declared:

“The validity of legislation prescribing what should be carried, and its weight and form and the charges to which it should be subjected, has never been questioned.... The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.”163 And in a later case, under the act of 1890, the freedom of the press also being at issue, the Court said:

“The states before the Union was formed could establish postoffices and postroads and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish postoffices and postroads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime and immorality within the states in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime and immorality.”164

Counsel for the petitioners in this case urged with considerable force that there was a valid distinction between obscene or indecent matter and lottery tickets and advertisements, but to this the Court replied:

“The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offence of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of the petitioners, since it would be for Congress to determine what are within and what are without the rule; but we think there is no room for such a distinction here, and that it must be left to Congress in the exercise of a sound discretion to determine in what manner it will exercise the power which it undoubtedly possesses.”

Special exception is taken by Mr. Hannis Taylor to the doctrines of the Rapier case. He says: “The act against the circulation of immoral literature, which was not drawn in a paroxysm of excitement, exhausts the entire constitutional authority over the intellectual contents of documents passing through the mails that Congress can exercise.” And referring to the exclusion of lottery tickets and advertisements: “This new born heresy—created to meet a special emergency—will be utterly repudiated by the American people the moment when the despotic and irresponsible power over opinion with which the fiat of the Supreme Court has armed Congress, is applied, as it surely will be, to some subject which will arouse and quicken the public conscience.”165

As yet, however, there has been manifested no disposition to repeal any of the lottery legislation. Congress has, in fact, made further exclusions, with slight popular protest. The act of July 31, 1912, excludes from interstate commerce, from the mails, and from importation into the United States, “any film or other pictorial representation or encounter of pugilists, under whatever name, which is designed to be used or may be used for purposes of public exhibition.”166 This, probably, is the most advanced action yet taken by Congress.

It should be noticed, however, in concluding this review, that all articles which Congress has thus far excluded from the mails have been inherently different from the articles which may be transmitted, in that they may have a harmful effect on other mail or on recipients. Explosives, liquids, infernal machines, intoxicating liquors,—all are in their nature dangerous to the mail or to the addressees. Obscene literature and lottery tickets are proper subjects for denunciation by the government and Congress may attempt to minimize their evil by denying them postal facilities. It may be said, therefore, that all prohibitory legislation has had the character of police regulations; each exclusion, when assailed, has been justified on the facts of the particular case, and the Supreme Court has never gone so far as has a lower federal tribunal in declaring that, “Congress has exclusive jurisdiction over the mails and may prohibit the use of the mails for the transmission of any article. Any article, of any description, whether harmless or not, may, therefore, be declared contraband in the mail by act of Congress and its deposit there made a crime.”167

Fraud Orders.—The denial of postal privileges when they are used to defraud may be justified upon the same grounds as the exclusion of obscene matter and lottery tickets; Congress has authority to make the use of the mails subject to police regulations. But it is provided that “the postmaster general may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery”168 or fraudulent scheme, “instruct postmasters at any postoffice at which registered letters arrive directed to any such person or company ... to return all such registered letters to the postmaster at the office at which they were originally mailed, with the word ‘Fraudulent’ plainly written or stamped upon the outside thereof” and they may be returned to the writers under such regulations as the postmaster general may prescribe. But under this section there is no authority to open any sealed letter.169

The constitutionality of these provisions has been fully established by the Supreme Court of the United States, which has held that the postal system is not “a necessary part of the civil government in the same sense in which the protection of life, liberty and property, the defense of the government against insurrection, and foreign invasion and the administration of public justice are; but it is a public function, assumed and established by Congress for the general welfare.” Thus it was constitutional to exclude such fraudulent matter.

As to other objections, the Court declared that due process of law was not denied when an executive official was given authority to control the disposition of property; “nor do we think the law unconstitutional because the postmaster general may seize and detain all letters, which may include letters of a purely personal or domestic character, and having no connection whatever with the prohibited enterprise.” The fact that the postmaster general may not open letters not addressed to himself makes such a provision necessary in order that the law may be effective. Finally, said the Court, “the objection that the postmaster general is authorized by statute to confiscate the money, or the representative of the money, of the addressee, is based upon the hypothesis that the money or other article of value contained in a registered letter becomes the property of the addressee as soon as the letter is deposited in the postoffice.” But the postmaster general, in seizing the letter, does not confiscate it, or change title thereto; he merely denies the use of the facilities of the postoffice. It would be proper for Congress to empower the postmaster general, in the first instance, to refuse to receive the letter at all, if its objectionable character is known to him.170