Chapter VII: The Extension of Federal Control Through Exclusion From the Mails (1)

It has already been indicated that, while the postal power of Congress is plenary, extending to the classification and exclusion of articles presented for transmission through the mails, it is not without limits; that its exercise is restricted by provisions found in the Constitution itself,--the guarantees of a free press and immunity from unreasonable searches and seizures. There is, moreover, a further important limitation in that an arbitrary refusal of postal facilities would seem to be a denial of due process of law.

The Supreme Court of the United States has not yet been called upon to set any limit to congressional action under this clause; it has thus far upheld every law restricting the use of the postoffice. But it should be remembered in the discussion which follows that all existing exclusions from the mails can be justified as partaking of the nature of police regulations; the prohibited articles are either inherently injurious, inimical to the health, safety and well being of recipients, or the use of the mails is denied because it would be in furtherance of a design that is condemned by moral considerations or is against public policy.

That this _Index Expurgatorius_ will be extended may be taken for granted. It is in the nature of police regulations that they expand more inclusively and rigorously. For example, in 1912 Congress excluded from the mails moving picture films of prize fights.[418] At the third session of the Sixty-third Congress, moreover, bills were introduced and urged to deny absolutely the use of the mails to any person who, in the opinion of the postmaster general, “is engaged or represents himself as engaged in the business of publishing” any books or pamphlets of an indecent, immoral, scurrilous or libelous character. No letter, packet, parcel, newspaper, book or other thing, said one bill, “sought to be sent through the postoffice by or on behalf or to or on behalf of such person shall be deemed mailable matter, and the postmaster general shall make the necessary rules and regulations to exclude such non-mailable matter from the mails.”[419] The proposed legislation was aimed at certain publications devoted to the unrestrained, defamatory and often indecent criticism of particular religious denominations and their clergy.

The constitutionality of this legislation, however, is open to serious doubt. There can, of course, be no question as to the impairment of religious freedom, for, while this requires freedom of attack, it cannot “justify the violation of public order and common decency”; or, as put by another authority, “the prohibition does not prevent Congress from penalizing the commission of acts, which, although justified by the tenets of a religious sect, are socially or politically disturbing, or are generally reprobated by the moral sense of civilized communities.”[420] Nor is the objection that the freedom of the press would be impaired, since, admitting that a denial of postal facilities would be an impairment of the liberty of publication, the federal guarantee does not include the right to publish scurrilous or libelous utterances on matters of private concern; or, to take Hamilton’s test, there is no publication of truth, with good motives and for justifiable ends.[421]

If the proposed legislation simply made such matter non-mailable and penalized any attempt to use the postoffice for its carriage, it would probably be free from objection. But under the bill quoted above, if it was established that a person made a practice of sending such matter through the mails, the postmaster general would have the absolute authority arbitrarily to deny him facilities for _all_ his mail matter, much of which would be admittedly innocuous; and whether, if the objectionable practices were suspended, the person would again be permitted to make use of the governmental agency, would depend on the discretion of the postmaster general. This official’s authority would, in effect, be to punish for acts not made criminal by Congress. Such legislation would for this reason seem unconstitutional as well as ill-considered.

But this exclusion is in a class by itself. It is an attempt to reach effectively an evil over which there is admittedly some federal control, for Congress may prevent the transmission of scurrilous papers. The objection is to the method of exercise rather than to the existence of the power. Of a different character is the strongly urged proposal that congressional control of the mails may be used as a valid means to compel the performance or non-performance of certain acts by persons, over whom there exists no direct federal authority. In other words, it is contended that Congress has a plenary and arbitrary power to determine who shall use the mails and what articles shall be carried, and therefore may impose any antecedent conditions, no matter how onerous or remote, upon the enjoyment of postal facilities. With the ever increasing frequency and importance of problems demanding a solution by the federal government in the absence of effective, and in some cases even attempted, settlement by the states, Congress is under the necessity of casting about for indirect methods of exerting control, since direct action would be unconstitutional. The use for this purpose of the taxing and commercial powers has in some instances been made, and in others is very strongly urged. It is also argued that Congress may refuse corporations, to whose size, organization, or activities, it objects, the right to sue in federal courts and that national banks may be ordered not to receive their deposits. In asking, therefore, whether it is constitutional for Congress to exert such indirect control under the cloak of regulating the mails, we will merely consider one phase of the larger subject of indirect government.

Such an exercise of power over the mails has been advocated to secure corporate publicity. “Congress,” says one who is in favor of such extension of federal control, “by regulating the use of the mails and channels of interstate commerce, may compel every corporation engaged in any business, _whether interstate or not_, to give publicity to its corporate affairs, by legislation denying the use of the mails and the instruments of interstate commerce for the transmission of any matter concerning the affairs or business of any corporation that fails to make and file reports of the fullest nature concerning its organization and business, such, for example, as are already exacted from interstate carriers under the Interstate Commerce Act. Such legislation would be valid and enforceable.”[422]

It has been suggested in Congress[423] that an effective punitive method of dealing with monopolistic corporations would be to deny them postal facilities.[424] If such corporations were violating the Sherman Act or were otherwise outlawed by valid legislation, Congress would have the right to deny them the use of the mails, since it would be absurd for the general government to aid, through its instrumentalities, persons or corporations violating laws which it had passed. An illustrative case is afforded by the provision of the Panama Canal Act of August 24, 1912, which says that no vessel owned by any company doing business in violation of any of the acts of Congress relating to interstate commerce “shall be permitted to enter or pass through said canal.”[425]

But it is a different proposition to urge that Congress may deny the use of the mails in order to compel corporate publicity, when, if the legislation directly commanded compliance, it would be clearly _ultra vires_. Thus, the Pujo Money Trust Committee proposed “that Congress prohibit the transmission by the mails or by telegraph or telephone from one state to another of orders to buy or sell or quotations or other information concerning transactions on any stock exchange, unless [among other conditions] such exchange shall (1) be a body corporate of the state or territory in which it is located.”[426] This proposal was based upon the conclusion of a majority of the committee that “Congress has power to prevent the use of the mails to disseminate quotations or other information concerning transactions on stock exchanges whose facilities are used for purposes of gambling and price manipulation, and that exercising its wide choice of means to that end, it may prohibit the transmission through the mails of any information relating to transactions on exchanges refusing submission to regulations reasonably adapted to preventing the objectionable practices.”[427]

The question arises whether such an exclusion would not violate the freedom of the press, since newspapers and other publications could not use the mails if they contained any information, however harmless and valuable, concerning any transactions (to which Congress might have no objection) of the exchange which has refused to accept regulations which the general government had no power directly to impose. Newspapers would be unable to circulate truth on matters of public concern if the published information as to stock quotations, although harmless in its nature, concerned an institution whose practices Congress was indirectly attempting to check. If the law were carefully confined to the prohibition of the circulation of publications which contained matter relating to gambling transactions, there would be no abridgment of the guarantee of the First Amendment. The exclusion would be similar to that of lottery advertisements, or matter designed to aid in defrauding recipients. But as proposed by the Pujo Committee, the law would, at least in part, if not as a whole, operate as an abridgment of the freedom of the press.

Apart from this consideration, however, the theory of the law, differently stated, is that Congress, under its power to exclude from the mails gambling contracts and matter designed to defraud recipients, may go farther and exclude harmless matter because this seems a necessary and adequate means of compelling the exchanges to take out state charters, a concession thought by Congress to be desirable in order to prevent the gambling and other harmful practices, over which there is no direct national control.

Still other proposals would extend federal authority in a similar manner. It is urged, for example, that Congress prohibit the use of the mails by fire insurance companies which at present are, by means of the postoffice, able to do business in states where they could not, if they used local agents.[428] And to give a third example, it was argued that an efficient means of prohibiting trading in cotton futures would be to deny the use of the mails for the furtherance of such transactions.[429] The extent to which the Supreme Court has thus far recognized in Congress authority of this character, is only to sanction the refusal to lend federal aid, by furnishing postal facilities to the furtherance or consummation of gambling and fraudulent schemes.

One measure of a character somewhat analogous to those proposals which we have been considering, has, however, already been sustained by the Supreme Court of the United States. I refer to the recent so-called “Newspaper Publicity Law” which requires publications entered as second-class matter (with a few exceptions) to furnish the postoffice department with, and publish, a sworn statement giving the names and addresses of the owners, editors, and business managers, and, in the case of daily newspapers, circulation figures. It is provided that “any such publication shall be denied the privileges of the mail if it shall fail to comply with the provisions of this paragraph within ten days after notice by registered letter of such failure.”[430]

As claimed in the defendants’ brief, when the law went before the Supreme Court, Congress had, in effect, attempted “to regulate journalism.” Relying upon its power over the postoffice, Congress had threatened those publications which enjoy second-class rates with a denial of this privilege should they refuse to comply with the conditions; and it was, moreover, made a crime to continue to use the mails and violate the stipulation that all reading matter for the publication of which a valuable consideration is received, “shall be plainly marked ‘advertisement.’” Such regulations, without any reference to the use of the mails, would be obviously outside the constitutional power of Congress.

By a narrow, but nevertheless a convincing line of reasoning, the Supreme Court, through Chief Justice White, was able to justify the law without being put to the necessity of making any definite declaration as to the limits to which Congress may go in its exercise of what, lacking a better phrase, we may call “indirect regulation under the postal power.”

The Court’s opinion shows that in the classification of mail matter there has been no attempt at uniformity and that periodical publications have enjoyed special favors by reason of legislative adherence to what has been described as the “historic policy of encouraging by low postal rates the dissemination of current intelligence.”[431] It is shown that as a condition precedent to being “entered as second class mail matter” and enjoying the low rates which are maintained at a loss, the government demands an answer to a score of questions concerning ownership, editorial direction, advertising discrimination, specimen copies, and circulation. To the Third Assistant Postmaster General is given the authority of accepting or rejecting applications of entry at the second-class rate.[432] The Supreme Court simply considered the law as laying down new conditions, compliance with which will continue the right “to enjoy great privileges and advantages at the public expense.” In its opinion the Court says:

“As the right to consider the character of the publication as an advertising medium was previously deemed to be incidental to the exercise of the power to classify for the purpose of the second class mail, it is impossible in reason to perceive why the new condition as to marking matter, which is paid for as an advertisement, is not equally incidental to the right to classify.

“And the additional exactions as to disclosure of stockholders, principals, creditors, etc., also are clearly incidental to the power to classify as are the requirements as to disclosure of ownership, editors, etc., which for so many years formed the basis of the right of admission to the classification. We say this because of the intimate relation which exists between ownership and debt....

“Considered intrinsically, no completer statement of the relation which the newly exacted conditions bear to the great public purpose which induced Congress to continue in favor of the publishers of newspapers at vast public expense the low postal rate as well as other privileges accorded by the second class mail classification, can be made than was expressed in the report of the Senate Committee stating the intent of the legislation--that is, to secure to the public ‘in the dissemination of knowledge of current events’ by means of newspapers, the names, not only of the apparent, but of what might prove to be the real and substantial owners of the publications and to enable the public to know whether the matter which was published was what it purported to be, or was in substance a paid advertisement.

“We repeat that in considering this subject we are concerned not with any general regulation of what should be published in newspapers, nor with any condition excluding from the right to resort to the mails, but we are concerned solely and exclusively with the right on behalf of the publishers to continue to enjoy great privileges and advantages at the public expense, a right given them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded.”[433]

This decision thus applies simply to the suspension of second class privileges and not to any general denial of the use of the mails. It is significant, moreover, that the Court expressly refused assent to the contention of the government, which as paraphrased in the opinion, was that the law merely “imposes conditions necessary to be complied with to enable publishers to participate in the great and exclusive privileges and advantages which arise from the right to use the second-class mail,” but that even if “the provision be given the significance attributed to it by the publishers, it is valid as an exertion by Congress of its power to establish postoffices and post roads, a power which conveys an absolute right of legislative selection as to what shall be carried in the mails, and which, therefore, is not in anywise subject to judicial control even though in a given case it may be manifest that a particular exclusion is but arbitrary because resting on no discernible distinction nor coming within any discoverable principle of justice or public policy.”

The Court, however, emphatically refused to accept this view, saying that “because there has developed no necessity of passing on the question, we do not wish even by the remotest implication to be regarded as assenting to the broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition, embodied in the proposition of the government which we have previously stated.”

The Supreme Court has, however, permitted Congress, in the exercise of its taxing power, and less noticeably in its control of interstate commerce, to accomplish ends which were not included in the enumerated delegations of the Constitution. Thus, the tax on state bank notes which made their issue unprofitable was upheld on the ground that “the judiciary cannot prescribe to the legislative department of the government limitations upon the exercise of its _acknowledged_ powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected.”[434] Such a position in this case, however, was easily justified on the ground that Congress had the power to stop altogether the issue of the state bank notes if it thought that this course was necessary in order to provide an effective currency system, and the case thus loses much of its apparent importance.[435]

More illustrative, perhaps, of the plenary power of Congress with respect to the raising of a revenue, and impossible to justify on such a ground, is the decision upholding a tax upon oleomargarine so heavy that it can only be manufactured at a loss. Thus, unable directly to control manufacture, Congress has achieved the same end through the exercise of its taxing power. The Supreme Court said:

The argument “when reduced to its last analysis comes to this: that because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful power whenever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that under our constitutional system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department.”[436]

Such reasoning is, it appears, final, although it goes farther than the Bank Note Case which declared that “there are indeed certain virtual limitations arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the power [that of taxation] if so exercised as to impair the separate existence and independent self government of the states or if exercised for ends inconsistent with the limited grants of power in the Constitution.”[437] However, although with more guarded language, the Court, even in the McCray case, intimated that a judicial veto might attach to measures which on their face bore evidence of not being tax laws at all, but were transparent in their purpose to control subjects not within the power of Congress. Such a law has not come before the Supreme Court.

Not so striking, but nevertheless important illustrations of this “nullification by indirection”[438] are to be found in the interstate commerce legislation of recent years. Congress has excluded lottery tickets from interstate commerce on account of their harmful effect on recipients;[439] it has assumed a control over the manufacture of food products by establishing standards of purity which must be met before the articles may begin an interstate journey.[440] The Mann White Slave Act extends federal control to immorality in the states, and in its decision upholding this law, the Supreme Court frankly admits that the means exerted “may have the quality of police regulations.”[441] Proposals are now made to control manufacturing and trading companies, whether interstate or not, by compelling them to take out federal charters and modify their business practices (over which Congress has no direct control) in accordance with federal regulations before they will be permitted to enjoy the facilities of interstate commerce. It is most strongly urged that the national legislature has the power to improve labor conditions within the states, the most desired manifestation being a law putting articles made by children under specified ages in the same class with lottery tickets and impure foods.

Up to this time, however, legislation under the commerce clause has developed little necessity for passing upon the question whether these ultimate purposes may be considered by the courts, for the indirect control effected by the various acts is purely incidental in character. It is quite proper for Congress to build up an _Index Expurgatorius_ just as it has done in the case of the mails, and to say that commerce shall not be “polluted” by the carriage of obscene literature, impure food, and made an agency to promote immorality. In every case, the power has been exerted on _things_, not on _persons_, and only once has there been even an apparent departure from this theory. Here the Supreme Court by a forced interpretation of the statute destroyed much of its force. I refer to the “commodities clause” of the Hepburn Bill which made it unlawful for any railroad to transport, except for its own use, any commodity other than timber which it had manufactured, mined, or produced, or in which it had any interest. The Court interpreted this as meaning that the railroad was not forbidden to engage in mining, but that before transporting the product, it had to divorce itself from any interest by a _bona fide_ sale. Such legislation, however, was “necessary and proper” in order to insure the enforcement of the regulations providing for equality of rates, publications of tariffs, etc. Any other interpretation would have required the Court to consider and decide several very “grave constitutional questions” as to the powers of Congress to regulate the production and ownership of commodities simply because they might become subjects of interstate commerce.[442]

But conceding the authority of Congress to regulate child labor indirectly, upon what theory is it based? In the words of a reluctant convert, “the lottery case is authority for the doctrine that interstate carriers may be prohibited from carrying, or shippers or manufacturers from sending from state to state and to foreign countries, commodities produced under conditions so objectionable as to be subject to control, as to their manufacture, by the states under an exercise of their police powers, or of a character designed or appropriate for a use which might similarly be forbidden by law.”[443] Such legislation, however, would be directed against the articles produced under the objectionable conditions, and the manufacturers who employed child labor would not be prohibited from using the advantages of interstate commerce for other articles, not so produced.[444]

There is an obvious distinction between such legislation and that advocated by the money trust committee, a distinction which is suggested, but not stressed, by the Solicitor General in the brief filed on behalf of the government in the newspaper publicity case: there must be no “regulation of the private business of citizens in a manner beyond any express or implied power of Congress” on the ground that such regulation “imposes as a penalty for disobedience a denial of an important federal privilege which Congress controls.” Any legislation excluding from the mails must apply directly to the _things_ mailed, not to the _persons_ using the mails. This is a distinction which is evident in the decisions upholding the interstate commerce legislation, and which underlies the argument that Congress may exclude commodities manufactured in whole or in part by children. The law would operate directly on these commodities, not on account of their inherent character (which would probably not be different from that of other commodities manufactured by adult labor), but because of the objectionable conditions of production. And by a parity of reasoning, Congress could exclude from the mails matter relating to gambling transactions which might be forbidden under the police power of the state, although such matter, on its face, would be harmless. But it is an entirely different proposition absolutely to deny the use of the mails because certain persons have refused to comply with conditions, beyond the power of Congress directly to impose, which it thinks may result in regulating objectionable practices, although these may be entirely disassociated from the bulk of the matter which has been excluded.

The briefs of counsel on behalf of the Pujo Committee furnish no argument to change the opinion here expressed that the proposed legislation would be unconstitutional.[445] The validity of the bill is asserted on the ground of the cases, already considered,[446] upholding the power of Congress to exclude lottery tickets and fraudulent matter. Chief importance, however, seems to be attached to a dictum of a District Court which says:

“If the use of the mails is a privilege which may be granted or withheld by Congress, Congress has the power to determine what shall be carried and what excluded ... under the power to regulate the mails it has seen proper to declare that they shall not be used for any purposes which are detrimental to the morals of the people or against public policy, and by enacting that the sending of obscene matter through the mails shall not be permissible, it has determined such acts to be against public policy.”[447] In this case the only matter before the court was the construction of the statute; there was no question as to the power of Congress, and the reasoning making public policy the test is clearly _obiter_. Counsel for the Pujo Committee, however, boldly argued as follows:

“It would therefore be within the competency of Congress, to prohibit absolutely the transmission through the mails of a circular or pamphlet or newspaper containing the quotations or information concerning transactions in securities on stock exchanges or otherwise, just as it has prohibited the transmission of circulars containing information with regard to lotteries. Such a prohibition may be absolute or conditional. Thus Congress might accompany a prohibition absolute in form with a proviso that its inhibition should not be applicable to” matter relating to securities “sold or offered for sale on a stock exchange duly incorporated, whose charter shall contain provisions similar to those set forth in the pending bill.” Congress, the argument concludes, would simply be laying down a “rule as to what shall and what shall not be mailable matter, and in making this classification it is giving expression to what it conceives to be sound public policy, to the same extent and in the same way it does when it enacts any other kind of legislation that comes within the constitutional grant of legislative powers.”[448]

But, it is submitted, Congress would be doing nothing of the sort. In the cases of the lottery tickets and obscene matter, the inhibition was on account of the inherent character of the matter mailed. If the test was one of public policy, as the very broad language of the District Court’s opinion would seem to indicate, Congress simply declared it not sound public policy that the mails of the United States should be used in furtherance of transactions that were harmful. To be sure the Postmaster General is authorized to seize and detain all letters addressed to a person against whom a fraud order has issued, but this is justifiable on the ground that it is reasonably necessary in order to make effective the regulations against using the postoffice to defraud; but Congress has not yet made it a crime for anyone, some of whose mail matter may come within the inhibition, to deposit in, or take from, the mails, letters of a personal and harmless character. It is improper, then, to argue that in passing the Pujo Bill, Congress would act “to the same extent and in the same way” as it has done in the past. The authority of the fraud order decisions is simply that if Congress excludes matter relating to gambling transactions (as it probably has the right to do), correspondence deposited by or addressed to, the person suspected of unlawfully using the mails, may be seized and detained in order to make the gambling regulations effective. But the cases furnish no ground for the belief that Congress may penalize the use of the mails by these persons for the transmission of matter that is harmless. The brief of counsel for the Pujo Committee does not argue this point; nor does it take the natural, but nevertheless untenable, further position and maintain that Congress may make it a crime to deposit this harmless matter in order to detect violations of a law excluding information concerning gambling contracts.

On the contrary, counsel conceive the public policy of the proposed legislation to be the enforcement of the regulations set forth in the pending bill,--regulations that are not concerned with the character of the mail matter, but with persons using the mails. Not even by twisted interpretations can the adjudicated cases be made to support such reasoning. The “newspaper publicity law” which marks the extreme assertion of congressional authority, applies directly to the papers mailed. Only one _dictum_, of a _nisi prius_ court,[449] lays down the test of public policy, and if, under its enumerated powers, Congress may legislate in fulfillment of this vague purpose, there would be a good deal of difficulty, I fancy, in showing that it would be subserved by the enforcement of the proposed regulations. And conceding that Congress may control the postoffice on grounds of public policy, the fact that the ends to be attained are unconnected with the use of the mails, would prevent the legislative fiat from being final, and the enforcement of the Pujo Committee’s recommendations would be so onerous and remote, that it would, I venture, not be permitted.[450] Reasoning such as that indulged in by the counsel, moreover, disregards the principle that runs through all the cases: the enforcement of postal regulations must be consistent with the rights reserved to the people. And the Pujo Bill attempts to regulate, not the mails, but stock exchanges.

The first Employers’ Liability Case,[451] it is submitted, furnishes sufficient basis to uphold the correctness of the view that the proposed legislation is unconstitutional. In these cases it was held that the statute was not confined to a regulation of interstate commerce, but attempted to control _persons_, not only as to their engaging in interstate commerce, but in other respects, simply because some of their activities came under the authority of Congress. Furthermore, the Supreme Court has held that “there is no such connection between interstate commerce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate carrier to discharge an employee because of such membership on his part.”[452]

There are a number of _dicta_ of the United States Supreme Court, particularly in regard to objectionable state statutes, which show that attempted indirect regulation is considered improper, at least for the local legislatures. First in time and importance comes Marshall’s famous statement, that “should Congress under pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”[453]

Or, as was said in another case: “The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty--indeed under a solemn duty--to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of the rights secured by fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution.”[454] No power ought to be sought, much less adjudged, “in favor of the United States, unless it be clearly within reach of its constitutional charter.” The courts are “not at liberty to add one jot of power to the national government beyond what the people have granted by the Constitution.”[455]

The Court has, moreover, adhered to “the great principle that what cannot be done directly because of constitutional restriction, cannot be accomplished indirectly by legislation which accomplishes the same result.... Constitutional provisions,” adds Justice Brewer, “whether operating by way of grant or limitation, are to be enforced according to their letter and cannot be evaded by any legislation which, although not in terms trespassing upon the letter and spirit, yet in substance or effect destroys the grant or limitation.”[456]

It is, moreover, a serious question whether arbitrary exclusions from the mails would not abridge the guarantee of due process of law. This question has never been before the Supreme Court of the United States, but a District Court has maintained that “the postal monopoly, if granted and exercised by a citizen or a corporation would, from the fact of its being a monopoly, make it imperative that all persons who paid the postal rates and conformed to the reasonable regulations of the postal service should have a common right to the use of the mails, and that, because of the fact of the monopoly thus granted. This right would be protected in the courts if the citizen or the corporation controlling the postal service should attempt to deprive him of it.”

The court then suggests that if the federal government should become the owner of all transportation lines and establish a monopoly, facilities would have to be extended to all, subject “to such general laws and regulations as to rates and the operation of the lines as might be enacted and established”; that the right to travel and ship freight “would be readily recognized as a property right in the citizen and one of which a particular citizen could not be deprived except by due process of law. We think the right to the use of the mails, though in a degree much less valuable, than the use of the transportation lines, would be equally a property right, and one which could not be taken away except by due process of law.”[457] The use of this property right would, of course, be subject to police regulations by Congress, to the extent that they have been upheld by the Supreme Court, or to which this argument concedes that they may go,--always applying, however, directly to the _things_ mailed.

One of the methods urged for compelling federal incorporation of trading companies engaged in interstate commerce is the denial of postal facilities to state chartered concerns, and concerning this one of the abler advocates of such an end, says: “If we are correct in believing that due process requires the equal protection of the laws, an arbitrary selection or classification is beyond the power of Congress. A law which divides those who use the mail into two general classes, all state corporations on the one hand, and all which are not incorporated by a state on the other, does not seem based upon any reasonable difference, either in the character of the person or in the kind of mail matter sent, which will make the classification more than arbitrary selection. The constitutionality of this method, therefore, seems open to grave question.”[458] The conclusion of this writer, therefore, is that the constitutionality of the Pujo Bill would be open “to grave question” as denying due process of law.

Thus far the proposed extension of federal control by forbidding persons to use the mails, has been objected to as (in the suggested bill at least) abridging the freedom of the press, as not being a _bona fide_ regulation of the mails, as attempting to obviate the objection of _ultra vires_ by the use of indirect means, and as denying due process of law. There is a final consideration, which, while not legally controlling, is none the less important. Without holding strictly to a “literary theory”[459] of the Constitution one can regret the apparently growing tendency to disregard constitutional provisions and to sanction all legislation if, by any twisted interpretation, it can be upheld by the courts, although it may, as in the case of the postoffice proposals considered above, be well outside the fairly considered powers of the law-making body. This tendency shows an impatience of legal restraint, and a disinclination to follow what may be called constitutional morality. The phrase is that of Grote,[460] who, describing Athenian Democracy in the time of Kleisthenes, emphasized the necessity for “a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be no less sacred in the eyes of his opponents than in his own.” Such constitutional morality he called “a natural sentiment” as it exists in the United States, but these words will no longer be true if Congress may extend its control in the manner proposed, without waiting for a grant of authority in the manner provided for by the Constitution.[461]

And if the courts should permit such extensions of federal control, enormous powers will, by judicial construction, be taken from the states and given over to the national legislature. For, as it is hardly necessary to remark, the denial of postal and interstate commerce facilities would be almost as efficacious as positive legislation; without using the mails and the channels of trade no business could successfully exist. If congressional control may be thus extended, every business and every individual needing to use the mails would become subject to federal regulation on the vague ground of public policy. The reserved powers of the states would then exist only by the sufferance of Congress, and the cardinal theory of the American system--that the federal government is one of enumerated powers--would become a cynical fiction.

TABLE OF CASES

PAGE
Achison v. Huddleson, 12 Howard, 293 90

Adair v. United States, 208 U. S. 161 176

Adams v. The People, 1 N. Y. 173 147

American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 58

Andrews v. United States, 162 U. S. 420 49

Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328 133

Bates & Guild Co. v. Payne, 194 U. S. 106 58

Battle v. United States, 209 U. S. 36 149

Blackham v. Gresham, 16 Fed. Rep. 609 43, 93

Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 145

Boyd v. United States, 116 U. S. 616 124

Brig Wilson, 1 Brockenborough, 423 113, 127

Burton v. United States, 202 U. S. 344 173

California v. Pacific Railroad Co., 127 U. S. 1 95, 152

Chae Chan Ping v. United States, 130 U. S. 581 108

Champion v. Ames, 188 U. S. 321 117, 169

Cleveland, P. & A. R. Co. v. Franklin Canal Co.,
5 Fed. Cas. 1044 91

Cohens v. Virginia, 6 Wheaton, 264 136

Collins v. New Hampshire, 171 U. S. 30 178

Commonwealth v. Knox, 6 Mass. 76 131

Cooley v. Port Wardens, 12 Howard, 299 113

Crossley v. California, 168 U. S. 640 149

Debs, In re, 158 U. S. 564 10, 47, 151

Dickey v. Maysville, etc. Co., 7 Dana (37 Ky.), 113 86

Dunlop v. United States, 165 U. S. 486 49

Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. 662 56

Employers’ Liability Cases, 207 U. S. 463 176

Eyde v. Robertson, 112 U. S. 580 168

Fairbank v. United States, 181 U. S. 283 178

Fong Yue Ting v. United States, 149 U. S. 698 108

Golden v. Prince, 10 Fed. Cas. 542 113

Grand Jury, In re, 62 Fed. Rep. 834, 840 45

Grimm v. United States, 156 U. S. 604 49

Hanover Bank v. Moyses, 186 U. S. 181 114

Harmon v. Moore, 59 Maine, 428 135

Hayner v. State, 83 Ohio St. 178 147

Henderson v. The Mayor of New York, 92 U. S. 259 178

Hennington v. Georgia, 163 U. S. 299 130

Hippolite Egg Co. v. United States, 220 U. S. 45 170

Hoke v. United States, 227 U. S. 308 52, 113, 170

Hoover v. McChesney, 81 Fed. Rep. 472 125, 179

Houston v. Moore, 5 Wheaton, 1 177

Illinois Central R. Co. v. Illinois, 163 U. S. 142 132

Jackson, Ex parte, 96 U. S. 727 54, 97, 110, 114, 115-116, 118, 125

Keller v. United States, 213 U. S. 138 55, 176

Knowles v. United States, 170 Fed. Rep. 409 49, 50

Kohl v. United States, 91 U. S. 367 92

Lathrop v. Middleton, 23 Cal. 257 135

Leisy v. Hardin, 135 U. S. 100 146

Lewis Publishing Co. v. Morgan, 229 U. S. 288 98, 110, 121, 167-169

Lottery Case, _see_ Champion v. Ames.

McCray v. United States, 197 U. S. 27 169

McCulloch v. Maryland, 4 Wheaton, 316 36, 40, 81, 177

Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 133

Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 58

Monongahela Navigation Co. v. United States, 148 U. S. 312 155

Morgan v. Louisiana, 118 U. S. 455 178

Mugler v. Kansas, 123 U. S. 623 177

Neagle, In re, 135 U. S. 1 108

Neil v. Ohio, 3 Howard, 720 90

Nelson v. State, 25 Texas App. 599 131

Newspaper Publicity Case, _see_ Lewis Publishing Co. v. Morgan.

Osborn v. The Bank of the United States, 9 Wheaton, 738 152, 155

Palliser v. United States, 136 U. S. 257 53, 147

Patterson v. Colorado, 205 U. S. 458 102

Pennsylvania v. Wheeling Bridge Co., 18 Howard, 421 93

Penny v. Walker, 64 Maine, 430 135

Pensacola Telegraph Co. v. Western Union Telegraph Co.,
96 U. S. 1 33, 156

People v. Croswell, 3 Johns. Cas. (N. Y.) 337 100

Phalen v. Virginia, 8 Howard, 164 53

Postal Telegraph Co. v. Adams, 155 U. S. 688 178

Public Clearing House v. Coyne, 194 U. S. 497 49, 57

Rapier, In re, 143 U. S. 110 54, 98, 117, 118, 148

Regina v. Hicklin, L. R., 3 Q. B. 360 50

Reinach v. Cortelyou, 28 App. D. C. 570 58

Respublica v. Oswald, 1 Dallas, 319 102

Rhodes v. Iowa, 170 U. S. 412 146

Rose Co. v. State, 133 Ga. 353 148

Rosen v. United States, 161 U. S. 29 50

Rupert v. United States, 181 Fed. Rep. 87 127

Schutz v. Dalles Military Road Co., 7 Oregon, 259 90

Seabright v. Stokes, 3 Howard, 151 88

Siebold, Ex parte, 100 U. S. 371 114, 144

Slaughter House Cases, 16 Wallace, 36 102

State v. Delaye, 68 So. 993 146

State v. Norfolk & W. R. Co., 33 W. Va. 440 131

Swearingen v. United States, 161 U. S. 446 49, 50

Teal v. Felton, 12 Howard, 284 179

Tennessee v. Davis, 100 U. S. 257 144

Thomas v. Cincinnati, 62 Fed. Rep. 803 46

Trombley v. Humphrey, 23 Mich. 472 92

Turner v. Williams, 194 U. S. 279 120

Turnpike Co. v. Newlands, 15 N. C. 463 136

Union Bridge Co. v. United States, 204 U. S. 364 178

United States v. Barney, 3 Hughes’ Reports (U. S. C. C.) 545, 133

United States v. Benedict, 165 Fed. Rep. 221 49

United States v. Bennett, 16 Blatchford, 343 50

United States v. Bott, 24 Fed. Cas. 1204 56

United States v. Boyle, 40 Fed. Rep. 664 50

United States v. Bromley, 12 Howard, 88 42

United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 156

United States v. Chase, 135 U. S. 255 49

United States v. Clark, 25 Fed. Cas. 443 45

United States v. Clark, 23 Int. Rev. Rec. 306 135

United States v. Claypool, 14 Fed. Rep. 127 45

United States v. Cruikshank, 92 U. S. 542 102

United States v. Debs, 65 Fed. Rep. 210 46

United States v. Delaware & Hudson Canal Co., 213 U. S. 366 171

United States v. Demolli, 144 Fed. Rep. 363 48

United States v. Dempsey, 185 Fed. Rep. 450 50

United States v. De Mott, 3 Fed. Rep. 478 135

United States v. Easson, 18 Fed. Rep. 590 44

United States v. Erie R. Co., 235 U. S. 513 45

United States v. Gettysburg Electric Co., 160 U. S. 668 152

United States v. Green, 137 Fed. Rep. 179 127

United States v. Hall, 26 Fed. Cas. 75 42

United States v. Hall, 26 Fed. Cas. 79 102

United States v. Hart, 1 Peters’ C. C. 390 131

United States v. Harvey, 8 Law Reporter, 77 134

United States v. Hudson & Goodwin, 7 Cranch, 32 83, 108, 119

United States v. Inlots, 26 Fed. Cas. 482 92

United States v. Kendall, 5 Cranch (U. S. C. C), 275 28

United States v. Kennerley, 209 Fed. Rep. 119 50

United States v. Kimball, 26 Fed. Cas. 782 45

United States v. Kirby, 7 Wallace, 482 134

United States v. Kochersperger, 26 Fed. Cas. 803 41, 43, 93

United States v. Ling, 61 Fed. Rep. 1001 49

United States v. McCracken, 3 Hughes’ Reports, 544 135

United States v. Mills, 7 Peters’, 138 41

United States v. Moore, 104 Fed. Rep. 78 49

United States v. Musgrave, 160 Fed. Rep. 700 173, 175

United States v. Nathan, 61 Fed. Rep. 936 49

United States v. O’Donnell, 165 Fed. Rep. 218 49

United States v. Pearce, 2 McLean’s C. C. R. 14 41

United States v. Popper, 98 Fed. Rep. 423 49

United States v. Sears, 55 Fed. Rep. 268 45, 136

United States v. Stevens, 27 Fed. Cas. 1312 46

United States v. Stowell, 133 U. S. 1 43

United States v. Thayer, 209 U. S. 39 147

United States v. Thompson, 28 Fed. Cas. 97 41

United States v. United States Express Co., 5 Biss. 91 42

United States v. Warner, 59 Fed. Rep. 355 49

United States v. Wilson, 58 Fed. Rep. 768 49

United States v. Wilson, 1 Baldwin (U. S. C. C.), 78 40

United States v. Wood, 3 Wash. C. C. R. 440 41

Veazie v. Fenno, 8 Wallace, 533 168, 169

West Virginia v. Adams Express Co., 219 Fed. Rep. 794 147

Wilson v. Shaw, 204 U. S. 24 33

Zinn v. State, 83 Ark. 273 147

INDEX

Abolitionist literature. See Incendiary publications.

Adams, John Quincy, 78.

Administrative determination to exclude mail matter, conclusiveness
of, 57 ff.

Advertisements of intoxicating liquors, 146 ff.

Amendments to Constitution giving Congress power to construct
roads, 73.

Anarchistic publications and the postoffice, 118.

Antecedents of the postal power, 9-26.

Appropriations for national and local purposes, 79.

Arbitration of industrial disputes, 151.

Articles of Confederation, 72, 76, 81.

Bache, Richard, 15.

Baltimore and Ohio Railroad Company, 28.

Bank Note Case, 169.

Bankruptcy laws, uniformity of, 114.

Banks, power of Congress to charter, 80.

Barbour, J. S., 74.

Beck, J. M., 169 n.

Bilké, H. W., 108.

Blackstone’s Commentaries, 100, 101.

Blair, Postmaster General, 51 n.

Bonaparte, Charles J., 118 ff.

“Bonus Bill” for road construction, 66.

Brewer, Justice, 177.

Buchanan, James, 110-112.

Calhoun, J. C, 67 ff., 106 ff., 136 ff.

Canals, power of Congress to cut, 25;
to aid by appropriation, 72.

Carter, James C., 148.

Clapp, Moses E., 35.

Classification of mail matter, 29-30.

Clay, Henry, 71 ff., 110.

Cockburn, Lord, 50.

Codification of postal laws, 60.

Collectivist activities of post office, 33-36.

Commercial power of Congress, 155, 160.

Committee of the States, 20.

“Commodities clause,” 170.

Confederation, Articles of, postal clause in, 16;
inadequacy of the power vested in Congress by, 20-22.

Congress, power to establish postoffices, 26 ff.;
to secure the mails and punish improper use, 36 ff.;
to establish postroads, 61 ff.;
to own and operate railroads, 150;
to own and operate telegraphs and telephones, 156;
to extend control through exclusions from the mails, 158 ff.

Constitution, grant of postal power by, 23.

“Constitutional American Postoffice,” 13.

Constitutional Convention and postal power, 22-25;
and power to cut canals, 25;
and freedom of press, 98-100.

Constitutional morality, 180.

Constitutionality, of excluding obscene matter, 51;
lottery tickets and advertisements, 52;
fraudulent matter, 56;
anarchistic publications, 120;
of owning railroads, 150;
of owning telegraphs and telephones, 156;
of excluding libelous matter, 159;
of attempting indirect control, 160 ff.

Continental Congress, establishment of post by, 13.

Copyright, publications violating, non-mailable, 48 n.

Cotton futures, trading in, 164.

Crimes against the mails, 36-56.

Crimes in postoffices, 149 n.

Crittenden, Attorney-General, 131.

Crumpacker, E. D., 58 ff.

Cumberland Road, 62 ff., 82.

Cushing, Caleb, 140 ff.

Dallas, Secretary, 83.

Daniels, Justice, 90.

Davis, John, 111.

Dead Letter Office, 125.

Dead letters, 16.

Debs Cases, 46.

Defamatory matter non-mailable, 50.

Detention of mail, 131;
by postal employee, 133.

Dicey, A. V., 100.

Dickey Case, 91.

Due process of law, 126, 158 ff.

Eminent domain, federal power of, 15, 63, 70, 87, 91-92, 155.

Establish, meaning of, in postal clause, 81.

Exclusions from mails, and freedom of press, 114;
as denying due process of law, 178 ff.

Expansion of postal facilities, 26-33.

Extension of federal control over postroads, 150;
through exclusions from the mails, 158 ff.

Fairbanks, Richard, 11.

Farrar, E. H., 154.

Federal aid for national but not local purposes, 95.

Federal control, extension of, through exclusion from the mails, 159;
under taxing and commercial powers, 168-171.

Federal incorporation of railroads, 152;
of trading companies, 179.

_Federalist, The_, 9, 10, 65.

First Amendment to Constitution, 98 ff.

Fourth Amendment to Constitution, 123 ff.

Franking privileges, 14, 20.

Franklin, Benjamin, 12-15, 23.

Fraud orders, 56-60.

Freedom of press, 98-123;
meaning of constitutional guarantee, 100 ff.;
abridged by preventing circulation, 103;
and exclusions from mails, 158, 163.

Freight trains on Sunday, 130.

Freund, Ernst, 129 n., 159.

Gallatin, Albert, 63 ff., 82.

Gambling contracts, 163.

Gerry, Elbridge, 98.

Goddard, William, 13.

Good roads, congressional aid for, 34, 80.

Goodnow, F. J., 180.

Gouverneur, Samuel L., 104, 138.

Granger, Gideon, 27 n.

Grote, George, 180.

Hadley, Arthur T., 26.

Hamilton, Alexander, 99.

Heisler, R. C., 179.

Holt, Postmaster General, 143.

Incendiary publications, by northern abolitionists, 103 ff.;
power of Congress to exclude from mails, 107 ff.;
power of state to punish officials disseminating, 136 ff.

_Index Expurgatorius_, postal, 39, 158;
commercial, 170.

Internal improvements, 28, 61.

Interstate commerce, power of Congress over, 127;
analogy to postal power, 128;
power of states to exclude, 145;
exclusion from, of articles made by children, 170 ff.

Intoxicating liquors, excluded from mails, 40;
interstate commerce in, and police power of the states, 127.

Jackson, Andrew, 78 ff., 103.

Jay, Chief Justice, 62.

Jefferson, Thomas, 62 ff.

Johnson, Justice, 81.

Jones, Samuel, 25.

Judicial review of fraud orders, 58 ff.

Jurisdiction to try offence of depositing non-mailable matter, 53.

Kendall, Amos, 104 ff., 137 ff.

Kent, Chancellor, 42.

Kenyon, Lord, 100.

King, William R., 106.

Lacey Game Act, 127 n.

Lee, Richard Henry, 14.

Letter carrier routes, in cities as postroads, 43, 93.

Libelous publications, 159.

Limitations on postal power, 97, 158.

Lottery advertisements and freedom of press, 116.

Lottery tickets, excluded from mails, 52, 146;
in interstate commerce, 169, 174 ff.

Lovelace, Francis, 12.

McCray Case, 169.

McLean, Justice, 89.

Madison, James, 9, 62, 65 ff., 100.

Mail matter relating to current business of carrier, 44.

Mails, interference with, 10;
safety of, 19;
right of Congress to compel transportation by railroads, 29, 151;
classification of, 30;
what constitutes obstruction of, 46;
exclusions from, 47 ff.;
use of, to defraud, 56 ff.;
exclusion from, to extend federal control, 158-180.

_Mala prohibita_ and _mala in se_, 54, 135, 148.

Mann White Slave Act, 170.

Marketing by parcel post, 34.

Marshall, Chief Justice, 36, 81, 136 n., 153, 154, 169 n., 177.

Marshall, Louis, 172 n.

Maryland, Sunday observance in, 131.

_Mercury_ (Charleston), 104.

Money orders, 31.

Monroe, James, 27, 69;
“Views on Internal Improvements,” 74 ff.

Moon, J. A., 32.

Morris, Gouverneur, 24.

Morris, Thomas, 112.

Municipal streets and postroads, 150.

Neale, Thomas, 12.

Nelson, E. C., 65, 77 n.

Newlands, Senator, 161 n.

Newspaper Publicity Law, 121 ff., 164, 175.

Northern Pacific Railroad, 91.

“Nullification by Indirection,” 169 ff.

Obscene literature, in mails, 48, 146, 174;
definition of, 49;
in interstate commerce, 170.

Obstruction of the mail, 45 ff.;
what constitutes, 135.

Ohio, admission as state and Cumberland Road compact, 63.

Oleomargarine in interstate commerce and state laws, 127;
federal tax on manufacture of, 168.

Ordinance of 1782, 17-20, 36.

Original packages, 146.

Panama Canal Act, 161.

Parcels post, 30, 34.

Paterson, William, 22.

Paterson’s plan for Constitution, 41.

Penn, William, 12.

Penrose, Boies, 51 n.

Pinckney, C. C., 98.

Pinckney’s plan, 22, 98.

Police regulations by Congress concerning postoffice, 52.

Postal clause, in Articles of Confederation, 16;
discussion of, by constitutional convention, 22;
in Constitution, 23;
poor expression of, 25.

Postal crimes, severely punished, 37;
obstructing the mail, 37;
private competition, 37;
robbing the mail, 38;
meticulous enumeration in federal criminal code, 39;
articles excluded, 40;
constitutionality of laws, 40 ff.

Postal facilities, recognized function of state, 11;
beginnings of, in America, 12;
governmental monopoly of, 14;
importance of, 26;
in New Zealand, 33, 36;
denial of, to objectionable stock exchanges, 162 ff.;
to insurance companies, 164.

Postal laws, codification of, 60.