Chapter VII: The Extension of Federal Control Through Exclusion From the Mails (3)

[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