Chapter VII: The Extension of Federal Control Through Exclusion From the Mails (2)

Postal monopoly, power of Congress to establish, 41.

Postal power of Congress, antecedents of, 9-26;
importance underestimated, 11;
granted by Articles of Confederation, 16;
by Constitution, 23;
and freedom of press, 98, 163;
limited by Fourth Amendment, 123;
may not deny due process of law, 178;
and police power of the states, 127 ff.;
as a means of extending federal control, 158 ff.

Postal savings banks, constitutionality of, 32.

Postal telegraphs and telephones, 156-157.

Postmaster general, office of, for America created, 12;
Franklin appointed, 14;
duties of, 18;
salary increased, 28;
made member of Cabinet, 28.

Postoffice, American, extension of functions, 10;
under Articles of Confederation, 17-22;
temporary establishment by Congress, 26;
expansion of power of Congress to establish, 26 ff.;
collectivist activities, 33.

Postoffice, British, service in colonies, 14.

Postoffice employees, exemption from military duties, 15;
punishment by state for performing federal duty, 136 ff.

Postroads, power of Congress to establish, 10, 61 ff.;
to appropriate for, but not construct, 72;
power of states over, 84 ff.

Power of states to delay carriage of mails, 131 ff.

Presbyterian Church, 127.

Press, freedom of, 54, 98 ff., 103, 158, 163.

Preston, William C., 106.

Princeton, robbery of mail at, 20.

Prize fights, moving picture films of, 158.

Publicity of corporate affairs, 161.

Publishers granted special postal rates, 29.

Pujo Money Trust Committee, 162, 172 ff.

_Questione Sociale, La_, 118 ff.

Railroads, federal incorporation of, 10, 94;
subsidies to, for carrying mails, 28 ff.;
in Alaska, 80;
as postroutes, 92.

Receipt of mail matter, power of state to forbid, 145 ff.

Religious freedom, 159.

Republican form of government, guarantee to state of, 144.

Right to use the mails, 52, 112, 178 ff.

Road construction and transportation of mails, 61 ff.

Roosevelt, Theodore, 51 n., 118, 150.

Rural free delivery, 34.

Schofield, Henry, 101 n., 102, 117 n.

Schroeder, Theodore, 51 n.

Searches and seizures, unreasonable, 123 ff.

Sealed letters and packages, not open to inspection, 124 ff.

Second class privileges, 121, 164 ff.

Secretary of agriculture, 34.

Secretary of labor, 35.

Sedition, power of Congress to punish, 103, 107;
constitutionality of sedition act, 107.

Semple, James, 85.

Sherman, Roger, 23, 98.

Sherman Act, 161.

_Southern Patriot_ (Charleston), 104.

State bank notes, tax on, 168.

State laws preventing circulation of incendiary matter, 104.

States, consent of, for construction of postroads, 72, 82;
authority of, over postroads, 96;
power of, to interfere with the mails, 127 ff.

Stock exchanges, incorporation of, 162 ff.

Story, Joseph, 9, 10, 81 n., 99 n., 108.

Sunday mails, 128 ff.

Sunday observance laws, 130.

Taft, President, 165 n.

Taney, Chief Justice, 88, 91, 134.

Tappan, Arthur, 104.

Taxation for purposes of regulation, 168.

Taxing power of Congress, 160.

Taylor, Hannis, 55, 97.

Telegraphs, federal ownership of systems, 10, 156.

Telephones, federal ownership of, 10, 156.

Tolls, right of state to charge mail carriers, 136 ff.

Tonnage duties, 61.

Tucker, John Randolph, 108, 142.

Unemployment bureaus and the postoffice, 35.

Unmailable matter, 47 ff.;
large packages, 47;
articles likely to damage mail, 47;
intoxicants, 48;
obscene matter, 48;
showing defamatory language, 50;
lottery tickets, 52;
fraudulent matter, 56.

Untermyer, Samuel, 172 n.

Use of mails as crime against state, 146 ff.

Use of mails as privilege or right, 173.

Van Buren, Martin, 74.

Von Holst, H. E., 75, 95, 97.

Wakeman, T. B., 51 n.

Washington, George, 62.

Webb-Kenyon Act, 113 n., 127 n., 146 n., 148.

West Virginia prohibition law, 147.

White, Chief Justice, 165.

Wickersham, Geo. W., 44.

Willoughby, W. W., 159, 170.

Wilson, James, 23.

Wilson, Secretary, 35.

Wilson, Woodrow, 180.

Wilson Act, 127 n.

Wise, Governor, 142.

Working on Sunday, state laws to punish, 130.

Young, J. S., 62 n., 77 n.

VITA

Lindsay Rogers was born in Baltimore on May 23, 1891. He attended the public schools, studied under private tutors, and received the degree of Bachelor of Arts from the Johns Hopkins University in 1912. He then began graduate work in Political Science under the direction of Professor Willoughby, with Private Law (LL.B., University of Maryland 1915) and Political Economy as subordinate subjects. He was a University Fellow, 1914-1915, and was admitted to the Maryland Bar in 1915. Since 1909 he has done considerable newspaper work.

FOOTNOTES

[1] The Federalist, No. 42.

[2] Story, Commentaries on the Constitution, vol. iii, p. 22.

[3] Story, Commentaries on the Constitution, vol. iii, p. 26.

[4] In Re Debs, 158 U. S. 564 (1895).

[5] Hemmeon, The History of the British Post Office, p. 3 ff.

[6] Mass. Historical Collections, 3d Series, vol. vii, p. 48; quoted by Mary E. Wooley in her monograph on “Early History of the Colonial Post Office,” Publications of the Rhode Island Historical Society, New Series, vol. i, p. 270 ff.

[7] Hemmeon, p. 32; Joyce, The History of the Post Office from its Establishment down to 1836, p. 196.

[8] Wooley, Early History of the Colonial Post Office, p. 275; Hemmeon, p. 33. See also Pliny Miles, “History of the Post Office,” American Bankers’ Magazine, n. s., vol. vii, p. 358 (November, 1857).

[9] Miles, p. 361.

[10] American Archives, Fourth Series, vol. i, pp. 500-504.

[11] Ibid., vol. ii, p. 536 ff.

[12] See Jameson (Ed.), Essays in Constitutional History, p. 168 ff.

[13] Journals of the Continental Congress (edited by Ford), ii, p. 71. (References up to 1781 are to this edition, Washington, 1904.... Since the sixteenth volume, the editor has been Gaillard Hunt.)

[14] Ibid., vol. ii, p. 208.

[15] Ibid., vol. iii, p. 342; vol. iv, p. 43.

[16] Ibid., vol. iii, p. 488. In the discussion referred to Paine remarked that the “ministerial post will die a natural death; it has been under a languishment a great while; it would be cowardice to issue a decree to kill that which is dying; it brought but one letter last time and was obliged to retail newspapers to pay its expenses.” Lee was more facetious, saying: “Is there not a Doctor, Lord North, who can keep this creature alive?” On December 25, 1775, it was announced that incoming mail would not be sent to the various colonies but would be held in New York and advertised.

[17] Journals of the Continental Congress, vol. v, pp. 719, 720; vi, p. 926.

[18] Ibid., vol. vi, p. 931.

[19] Ibid., vol. vii, p. 29.

[20] Ibid., p. 153.

[21] Journals of the Continental Congress, vol. vii, pp. 258, 347; ix, 816, 817, 898; xi, 550.

[22] Ibid., vol. v, p. 551.

[23] Ibid., pp. 681, 682; ix, 907. In the second draft the postal clause comes under Article 14 and in the final draft under Article 9.

[24] Journals of the Continental Congress, vol. xi, p. 652. The vote stood, Ayes, 2; Noes, 9.

[25] Ibid., vol. xv, p. 1411.

[26] 7 Journals of Congress (Ed. of 1800), 383.

[27] 7 Journals, 383 ff. Special messengers and expresses were exempted from this provision at the discretion of the postmaster general.

[28] 8 Journals, 40, 131, 193; 9 Journals, 130.

[29] 9 Journals, 15, 147.

[30] 9 Journals (App.), 10.

[31] 11 Journals, 154, 191.

[32] Congress approved the action of the postmaster general in directing his deputies not to receive the paper money of any state for postage, and to accept only specie. He was also authorized to demand payment in advance. 11 Journals, 84, 164.

[33] 12 Journals, 137.

[34] Farrand, Records of the Federal Convention, vol. ii, p. 135.

[35] This is the draft as reconstructed by Professor Farrand (vol. iii, pp. 604, 607), but the document sent by Pinckney in 1819 to John Quincy Adams for publication in the journal, omitted the last clause. This draft, however, was written not very long before 1819, and was not presented to the Convention in 1787. See Records, vol. iii, p. 595 ff; “Sketch of Pinckney’s Plan for a Constitution, 1787,” in American Historical Review, vol. ix, p. 735, and Bancroft, History of the Constitution, vol. i, p. 258.

[36] Farrand, vol. i, p. 243.

[37] Ibid., vol. ii, p. 177

[38] Ibid., p. 303. New Hampshire, Connecticut, New Jersey, Pennsylvania and North Carolina were opposed. Rhode Island and New York did not vote. The other states were in favor.

[39] Ibid., p. 324.

[40] Constitution, Art. I, Sec. 8, Clause 7; Farrand, vol. ii, p. 590.

[41] Farrand, vol. ii, p. 615.

[42] Farrand, vol. ii, p. 615.

[43] The vote on the motion was 8 to 3 (New Hampshire, Connecticut, Massachusetts, New Jersey, Delaware, Maryland, North Carolina, and South Carolina opposed; Pennsylvania, Virginia, Georgia in favor). This incident in the Federal Convention was to figure in the congressional debates over the incorporation of banks and the construction of postroads. Opinions have differed as to whether the action of the Convention may be said to show that the Constitution did not contemplate the exercise by Congress of a power to incorporate. Madison’s record says: “Mr. King thought the power unnecessary.... Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks, he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.” Farrand, vol. iii, p. 615. Madison’s later opinion (1824) was that a general power to incorporate had been negatived. Ibid., p. 463.

[44] Jefferson’s Anas in T. J. Randolph, Memoir, Correspondence ... of Thomas Jefferson, vol. iv, p. 506.

[45] Pomeroy, Constitutional Law, p. 264.

[46] See Brown, The Commercial Power of Congress, p. 132.

[47] Elliot’s Debates, vol. ii, p. 406.

[48] See Moore, American Eloquence, vol. i, p. 349.

[49] Art., “Postoffice,” Lalor, Cyclopaedia of Political Science, vol. iii, p. 310.

[50] 1 Stat. L. 70.

[51] This act was limited to August 12, 1790. On August 4, 1790, it was continued until March 4, 1791; on March 3 until February 20, 1792, when Congress passed “An Act to establish the postoffice and postroads in the United States.” 1 Stat L. 178, 218, 232.

[52] For example, Gideon Granger, postmaster general, wrote in 1810: “From the nature of our government it becomes a matter of the highest importance to furnish the citizens with full and correct information, and, independent of political considerations, the interests of society will be best promoted, particularly in the interior, by extending to it the facilities of this office. Nor can the seaboard complain as it puts a profit on all that the interior produces for exportation, and on all it consumes from foreign countries.” American State Papers (Postoffice), vol. xv, p. 42.

[53] Williams, The American Postoffice, p. 20 (61st Congress, 2d Sess., Sen. Doc. No. 542).

[54] Richardson, Messages and Papers of the Presidents, vol. ii, p. 215.

[55] Ibid., p. 311.

[56] Ibid., p. 419.

[57] Williams, p. 25.

[58] 2 Stat. L. 592, and 1 Stat. L. 733.

[59] Learned, The President’s Cabinet, p. 231. See also U. S. v. Kendall, 5 Cranch (U. S. C. C., 1837), 275.

[60] Bassett, Life of Andrew Jackson, vol. ii, p. 413. “... in introducing the postmaster general into the cabinet, Jackson began a practice that probably tended, in the long run, to invigorate the workings of the postal establishment, notwithstanding the fact that Barry, successor to McLean in the office, made a conspicuously dismal record.” Learned, p. 250.

[61] Below, Chapter III.

[62] See Haney, Congressional History of Railways, p. 319 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. iii).

[63] 10 Congressional Debates, 1752.

[64] Haney, p. 323.

[65] 48th Cong., 2d Sess., Sen. Exec. Doc. No. 40.

[66] 16 Stat. L. 115; 17 Stat. L. 309.

[67] Haney, p. 206 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. vi).

[68] 23 Stat. L. 156.

[69] See Postal Laws and Regulations of 1913, Title X, “Transportation of the Mails,” p. 607 ff.

[70] See 43d Cong., 1st Sess., Sen. Rep. No. 478. This point is developed below, p. 151 ff.

[71] 5 Stat. L. 733.

[72] 9 Stat. L. 202.

[73] 10 Stat. L. 38.

[74] 23 Stat. L. 387. For further details of the special privileges granted periodicals, see Report of the Commission on Second Class Mail Matter (1912), p. 57 ff.

[75] 37 Stat. L. 557. “That hereafter fourth class mail matter shall embrace all other matter, not now embraced by law, in either the first, second, or third class, not exceeding eleven pounds in weight, or greater in size than seventy-two inches in girth and length combined, nor in form or kind likely to injure the person of any postal employee or damage the mail equipment or other mail matter, and not of a character perishable within a period reasonably required for transportation and delivery” (Sec. 8). These limits have been, and will be, raised from time to time.

[76] But see Bodley, “The Post Office Department as a Common Carrier and Bank,” 18 American Law Review, 218 (1884).

[77] See Williams, _passim_.

[78] Reports of the Postmaster General, 1841-1845.

[79] “It might be easily shown, for instance, that the power over the mails is limited to the transmission of intelligence, and that Congress cannot, consistently with the nature and object of the power, extend it to the ordinary objects of transportation, without a manifest violation of the Constitution, and the assumption of a principle which would give the government control over the general transportation of the country, both by land and water.” Speech of John C. Calhoun. 12 Debates of Congress, 1142. See also 18 American Law Review, 218.

[80] 13 Stat. L. 76.

[81] Report of the Postmaster General, 1864, p. 24.

[82] 28 Stat. L. 30.

[83] See Reports of the Postmaster General, 1908-1911.

[84] Postal Laws and Regulations of 1913, Title VIII, “Money Order System,” p. 529 ff.

[85] Congressional Globe, 38th Cong., 1st Sess., pp. 1694, 1771, 1861.

[86] Act of June 25, 1910; 36 Stat. L. 814. A system had been recommended by postmasters general in 1871-1873, 1880-1882, 1887-1890, 1907-1909. See 61st Cong., 2d Sess., House Rept. No. 1445, and for Mr. Moon’s argument, ibid., Part 2.

[87] Wilson v. Shaw, 204 U. S. 24 (1907).

[88] Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 (1877).

[89] Davies, The Collectivist State in the Making, p. 39.

[90] Below, Chapter VI.

[91] Below, p. 80 ff. See also “The States and their Roads,” N. Y. Nation, August 20, 1914, and Bourne, “Practical Plan to Spend $3,000,000 for Public Roads,” N. Y. Times, May 11, 1913.

[92] Annual Reports of the Department of Agriculture, 1914 (Report of the Chief of the Office of Markets).

[93] Report of the Postmaster General, 1914, p. 8 ff. See also U. S. Department of Agriculture, Farmers’ Bulletins, _inter alia_, Nos. 594 and 611, and The National Parcel Post News (Washington), October 7, 1914, and weekly thereafter.

[94] S. 5180, 63d Cong., 2d Sess. (April 8, 1914).

[95] Wilson, “Uncle Sam; Employment Agent,” The Outlook, February 17, 1915, p. 395.

[96] 4 Wheat. 316 (1819).

[97] See above, p. 19.

[98] 1 Stat. L. 232.

[99] Changed to $50 by the act of May 8, 1794; 1 Stat. L. 354.

[100] Changed by the act of March 2, 1799 (1 Stat. L. 733) to forty lashes and ten years imprisonment for the first offense, but death for the second offense, or if the carrier was wounded or his life put in jeopardy. In 1794 (1 Stat. L. 354) the penalty for stealing mail or letters from the postoffice was changed to fine and imprisonment and in 1799 to thirty lashes and two years imprisonment.

[101] Act of March 3, 1797; 1 Stat. L. 509.

[102] 2 Stat. L. 592.

[103] Act of March 3, 1825; 4 Stat. L. 122.

[104] 35 Stat. L. 1088, 1123.

[105] “Where a letter carrier left a letter in the hall of the residence of the person to whom it was addressed, and the defendant opened it with intent to pry into the business and secrets of the owner” it was held to be a violation of the provision against taking mail before it reached the addressee, and the principle was laid down that the protection extends until the letters reach their destination by actual delivery to the persons entitled to receive them. U. S. v. McCready, 11 Fed. Rep. 225 (1882), citing U. S. v. Hall, 98 U. S. 343 (1878).

[106] Act of August 24, 1912; 37 Stat. L. 554. See below, pp. 121, 164.

[107] U. S. v. Wilson, 1 Baldwin (U. S. C. C.), 78 (1830).

[108] U. S. v. Pearce, 2 McLean’s C. C. R. 14 (1839).

[109] U. S. v. Mills, 7 Peters, 138 (1833).

[110] U. S. v. Wood, 3 Wash. C. C. R. 440 (1818). See also U. S. v. Hardyman, 13 Peters, 176 (1839).

[111] U. S. v. Thompson, 28 Fed. Cas. 97 (1846). But see “The Postoffice Monopoly,” 11 Law Reporter, 384 (January, 1849). In this paper the writer argues that the idea of a monopoly is not incidental to the postal grant and that the framers did not intend to make the postoffice a source of general revenue. The Constitution enumerates methods of raising funds and _Expressio unius, exclusio alterius_. Mr. Paterson’s plan as proposed to the Convention named the postoffice as a source of revenue, but his language was rejected. May the same, asks this writer, be said of his theory? (p. 396). And if the federal government has no such power it has no right of espionage and it may not say of what “mailable matter” consists (p. 397).

[112] U. S. v. Kochersperger, 26 Fed. Cas. 803 (1860). “In a royal grant of the office of postmaster to foreign parts (July 19, 1632, XIX Rymer’s Foedera, 385) the monopoly is justified by the consideration ‘how much it imports to the state of the King and this realm that the secrets thereof be not disclosed to foreign nations, which cannot be prevented if a promiscuous use of transmitting or taking up of foreign letters and packets should be suffered,’” Freund, Police Power, p. 688, n.

[113] Act of March 2, 1827; 4 Stat. L. 238; Niles’ Register, vol. xlvii, p. 120. Until 1827 newspapers could be carried privately, but by the act of this year an express exception hitherto existing was omitted. At the present time, of course, they may be carried outside of the mail. See Postal Laws and Regulations of 1913, p. 605.

[114] 4 Opinions of the Attorneys General, 349 (1844). If a passenger takes the letters without the knowledge of the carrier, the latter is not liable and no penalty is incurred by the person sending the letters; but if the practice is known by public advertisement the carrier will be liable and also the person employing agents to carry his mail. U. S. v. Hall, 26 Fed. Cas. 75 (1844).

[115] U. S. v. U. S. Express Co., 5 Biss. 91 (1869).

[116] U. S. v. Bromley, 12 How. 88 (1851). See also 4 Ops. 159 (1843).

[117] 4 Ops. 162. “By the now settled doctrine of this court” revenue statutes are “not to be construed like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.” U. S. v. Stowell, 133 U. S. 1 (1890).

[118] 9 Ops. 161 (1858); but see U. S. v. Kochersperger, above.

[119] 9 Stat. L. 591.

[120] U. S. v. Kochersperger, above. While resting its decision on a literal interpretation of the statute, the court intimated that the public streets of a municipality were different from highways, and expressed doubt as to whether they could “be established by Congress as postroads for any other purpose than the carriage of the mail.” See below, p. 151.

[121] Act of March 2, 1861; 12 Stat. L. 205.

[122] Act of June 8, 1872; 17 Stat. L. 309.

[123] Blackham v. Gresham, 16 Fed. Rep. 609 (1883). In 1872, citizens of Davenport, Iowa, were permitted to employ a private dispatch company to deliver within the city limits mail upon which no U. S. postage had been paid; this was allowed because the streets of the city had not been made postroutes. 14 Ops. 152.

[124] U. S. v. Easson, 18 Fed. Rep. 590 (1883).

[125] Rev. Stat. Sec. 3985; the italicised words were added by the Act of March 4, 1909; 35 Stat. L. 1124. See 21 Ops. 394 (1896); 28 Ops. 537 (1910), and 42 Cong. Rec., 973 ff.

[126] 21 Ops. 394.

[127] 29 Ops. 418 (1912).

[128] U. S. v. Erie R. Co., 235 U. S. 513 (1915). It was held that the setting up of a post by a railroad car or steamboat was not within the act of 1827. “Since the passing of the postoffice laws new modes of conveyance have been established and a condition of things arisen not then known or contemplated. And the question is, whether new acts in contravention of the general spirit and policy of the laws, can be brought within any of its prohibitions, and subjected to a specific penalty. However willing the court might be to attain that end, it cannot strain or force the language used beyond its fair and usual meaning.” U. S. v. Kimball, 26 Fed. Cas. 782 (1844).

[129] U. S. v. Sears, 55 Fed. Rep. 268 (1893).

[130] U. S. v. Claypool, 14 Fed. Rep. 127 (1882).

[131] U. S. v. Clark, 25 Fed. Cas. 443 (1877); see also In Re Grand Jury, 62 Fed. Rep. 840 (1894).

[132] In Re Grand Jury, 62 Fed. Rep. 834 (1894).

[133] Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. Rep. 803 (1894); but see U. S. v. Stevens, 27 Fed. Cas. 1312 (1877).

[134] U. S. v. Debs, 65 Fed. Rep. 210 (1895).

[135] In Re Debs, 158 U. S. 564 (1895). See also Fairlie, National Administration, p. 38; Cleveland, The Government in the Chicago Strike, _passim_, and 23 McClure’s Magazine, p. 227.

[136] 2 Stat. L. 592.

[137] 35 Stat. L. 1131. See Postal Laws and Regulations of 1913, p. 255.

[138] Publications which violate copyrights granted by the United States cannot be mailed. In this case the postal power is used to make more effectual legislation which it was competent for Congress to enact. See Postal Laws and Regulations of 1913, p. 264.

[139] 13 Stat. L. 507; 17 Stat. L. 283, 302.

[140] Postal Laws and Regulations of 1913, p. 264.

[141] As to when one, who does not personally mail non-mailable matter, may be regarded as causing it to be deposited in the mails, see Demolli v. U. S., 144 Fed. Rep. 363 (1906); 6 L. R. A. n. s. 424, and note. Importation into the United States of obscene matter or articles of an immoral nature was forbidden by the act of March 2, 1857, 11 Stat. L. 168.

[142] “For more than thirty years, not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law, we believe, has never been attacked.” Public Clearing House v. Coyne, 194 U. S. 497 (1904), but see Dunlop v. U. S., 165 U. S. 486 (1897), and U. S. v. Popper, 98 Fed. Rep. 423 (1899).

[143] U. S. v. Chase, 135 U. S. 255 (1890). The statute applied to any “book, pamphlet, picture, writing, print, or other publication” of an obscene character. R. S. sec. 3893. The prosecution in the Chase case arose before the act of September 26, 1888, which the Court refused to consider, and which extended the inhibition to sealed letters. 25 Stat. L. 496.

[144] Grimm v. U. S., 156 U. S. 604 (1895). The Chase case was followed by U. S. v. Wilson, 58 Fed. Rep. 768 (1893), which held that even under the act of 1888 “or other publication” were qualifying words which excluded letters, and by U. S. v. Warner, 59 Fed. Rep. 355 (1894); _contra_, U. S. v. Nathan, 61 Fed. Rep. 936 (1894), and U. S. v. Ling, 61 Fed. Rep. 1001 (1894). All doubt was removed by Grimm v. U. S.

[145] Andrews v. U. S., 162 U. S. 420 (1896).

[146] Swearingen v. U. S., 161 U. S. 446 (1896), Justices Harlan, Gray, Brown and White dissenting, followed in U. S. v. Moore, 104 Fed. Rep. 78 (1900); U. S. v. O’Donnell, 165 Fed. Rep. 218 (1908); U. S. v. Benedict, 165 Fed. Rep. 221 (1908), and Knowles v. U. S., 170 Fed. Rep. 409 (1909).

[147] U. S. v. Dempsey, 185 Fed. Rep. 450 (1911). See also, “Exclusion of Certain Publications from the Mails,” Hearing before Committee on the Postoffice and Postroads, House of Representatives, February 1, 1915, p. 6. But the postmaster general in his Annual Report of 1914, p. 47, appears to think that the Swearingen case is still controlling.

[148] Rosen v. U. S., 161 U. S. 29 (1896).

[149] Reg. v. Hicklin, L. R. 3, Q. B. 360 (1868).

[150] Knowles v. U. S., 170 Fed. Rep. 409 (1909); U. S. v. Bennett, 16 Blatch. 343 (1879), and U. S. v. Kennerley, 209 Fed. Rep. 119 (1913).

[151] U. S. v. Boyle, 40 Fed. Rep. 664 (1889).

[152] Postmaster General Blair in 1861 excluded from the mails twelve treasonable publications, “of which several had been previously presented by the grand jury as incendiary and hostile to constitutional authority.” Report of the Postmaster General, 1861, p. 584. In 1914 the postmaster at Greenville, Pa., threw out of the mail several thousand cards containing facsimile appeals over his signature by Colonel Roosevelt, calling upon all good citizens to oppose Senator Boies Penrose. The local postmaster held the cards to be defamatory, but his decision was reversed by the authorities at Washington. See N. Y. Sun, October 31, 1914.

[153] See below, p. 158 ff.

[154] Schroeder, Free Press Anthology, p. 171. See also his “Obscene” Literature and Constitutional Law. In The Unanswered Argument against the Constitutionality of the so-called Comstock Postal Laws, and for the Inviolability and Free and Equal Use of the United States Mail, T. B. Wakeman argues that Congress has no legislative power over the subject, and that “the power to suppress obscenity and indecency, together with all other crimes or offenses is one of the general powers reserved in the United States Constitution to the people and the states,” p. 30.

[155] Patterson, Liberty of the Press, and Public Worship, p. 69.

[156] Hoke v. U. S., 227 U. S. 308 (1913). See “Is Congress a Conservator of the Public Morals?”, 38 American Law Review, 194.

[157] R. S. sec. 3894.

[158] 19 Stat. L. 90.

[159] 26 Stat. L. 465; see also 16 Ops. 5 (1878).

[160] R. S. sec. 731, and Palliser v. U. S., 136 U. S. 257 (1890). This was a case where a letter was mailed in New York and addressed to a postmaster in Connecticut to induce him to violate his official duty. The District Court for the district of Connecticut was declared to have jurisdiction.

[161] 51st Cong., 1st Sess., Sen. Rep. No. 1579; see also House Rep. No. 2844.

[162] 8 Howard, 164 (1850).

[163] Ex parte Jackson, 96 U. S. 727 (1878).

[164] In Re Rapier, 143 U. S. 110 (1892).

[165] “A Blow at the Freedom of the Press,” in 155 North American Review, p. 694.

[166] Act of July 31, 1912; 37 Stat. L. 240. But see Keller v. U. S., 213 U. S. 138 (1908).

[167] U. S. v. Bott, 24 Fed. Cas. 1204 (1873).

[168] As to what constitutes a lottery see Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. 662 (1914); 52 L. R. A. n. s. 108, and note.

[169] Postal Laws and Regulations of 1913, p. 267.

[170] Public Clearing House v. Coyne, 194 U. S. 497 (1904).

[171] See Brinton, “Some Powers and Problems of the Federal Administrative,” University of Pennsylvania Law Review, January, 1913, reprinted as 62d Cong., 3d Sess., Sen Doc. No. 1054. See also Pierce, Federal Usurpation, p. 335 ff.

[172] Bates & Guild Co. v. Payne, 194 U. S. 106 (1904).

[173] American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 (1902).

[174] Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 (1904). See also U. S. ex rel. Reinach v. Cortelyou, 28 App. D. C. 570 (1906), 12 L. R. A. n. s. 166, and note.

[175] Statement of Hon. E. D. Crumpacker before the House of Representatives Committee on the Judiciary, May 25, 1906, in support of H. R. 16548.

[176] Memorandum by the Assistant Attorney General for the Postoffice Department on Postal “Fraud Order” Law (1906).

[177] “It must also be borne in mind that the idea of the fraud order law is not punitive, but is simply protective. It is to prevent the use of the mails to defraud the public. The theory is that by the stopping of the mail privileges in the initiating stages of the fraud, the consummation of the scheme will be prevented. It would be utterly impossible to fulfill this purpose by a trial in court, for the necessary legal evidence could not generally be obtained until the scheme had run its course.” Ibid., p. 6.

[178] Final Report of the Joint Commission on the Business Method of the Postoffice Department and the Postal Service (December 17, 1908), 60th Cong., 2d Sess., Sen. Rep. No. 701, chap. 4, secs. 90-99.

[179] American State Papers, vol. xv (Postoffice), p. 28.

[180] 1 Stat. L. 233.

[181] Lalor, Encyclopaedia of Political Science, vol. ii, p. 556.

[182] 1 Stat. L. 251.

[183] Richardson, vol. i, p. 66.

[184] Ibid., pp. 83, 107.

[185] Correspondence and Public Papers of John Jay (Ed. Johnston), vol. iii, p. 407.

[186] Jefferson, Writings (Ed. Ford), vol. vii, p. 63.

[187] In the discussion of this undertaking and its relation to the postoffice clause of the Constitution, I have derived much assistance from Professor J. S. Young’s “A Political and Constitutional Study of the Cumberland Road” (University of Chicago Press, 1904), although this only incidentally considers the inquiry which my essay attempts.

[188] Gallatin, Writings (Ed. Adams), vol. i, p. 76; Letter to William B. Giles, chairman of the House of Representatives Committee for admitting the North Western Territory into the Union.

[189] The proposed road fund of 10 per cent., however, was by the act which Congress passed on March 3, 1803, reduced to 5 per cent. with some restrictions as to expenditure within the state. 2 Stat. L. 226.

[190] 2 Stat. L. 357; Act of March 29, 1806.

[191] Young, The Cumberland Road, 21.

[192] Laws of Maryland, 1802-1804, ch. 115.

[193] Miscellaneous State Papers, vol. i, p. 474; Young, The Cumberland Road, p. 41.

[194] 2 Stat. L. 397, 516.

[195] On August 31, 1806, Jefferson wrote to Gallatin, commenting on the latter’s plan for internal improvements, with a word of suggestion as to branches, “if it be lawful and advisable to extend our operations to them.” Jefferson, Writings (Ed. Ford), vol. viii, p. 466.

[196] Richardson, vol. i, p. 409; Jefferson, vol. viii, p. 494.

[197] Richardson, vol. i, p. 456; Jefferson, vol. ix, p. 224.

[198] 2 Stat. L. 357, 397.

[199] A convenient list of these and of later laws is to be found in E. C. Nelson, “Presidential Influence on the Policy of Internal Improvements,” Iowa Journal of History and Politics, vol. iv, App. A (p. 53 ff).

[200] The Federalist, No. 14.

[201] Annals of 4th Congress, 1st Sess., pp. 297, 314. A bill authorizing the survey passed the House on May 20. Ibid., p. 1415.

[202] 2 Stat. L. 555, 661, 668, 670, 730, 829; 3 Stat. L. 206, 282, 315, 318, 377.

[203] Richardson, vol. i, p. 567.

[204] Richardson, vol. i, p. 576; see Farrand, vol. iii, p. 463.

[205] Miscellaneous State Papers, vol. i, p. 741.

[206] Annals of 11th Congress, vol. ii, pp. 1401, 1443.

[207] Calhoun, Works, vol. ii, p. 193.

[208] See below, p. 75.

[209] Annals of 14th Congress, 2d Sess., p. 191.

[210] Ibid., pp. 177, 191.

[211] Richardson, vol. i, p. 585; Mason, The Veto Power, p. 95. Jefferson wrote in 1817 that the President’s veto was on “sound grounds; that instrument not having placed this among the enumerated objects to which they are authorized to apply the public contributions,” and called the veto “a fortunate incident.” Jefferson, Writings (Ed. Ford), vol. x, pp. 81, 91.

[212] Richardson, vol. i, p. 585.

[213] As late as 1830 Madison wrote: “I observe that the President, in his late veto, has seen in mine of 1817, against internal improvements by Congress, a concurrence in the power to appropriate money for the purpose. Not finding the message which he cites, I can only say that my meaning must have been unfortunately expressed or is very strangely misinterpreted. The veto on my part certainly contemplated the appropriation of money as well as the operative and jurisdictional branches of the power. And, as far as I have reference to the message, it has never been otherwise understood.” Letters and Other Writings of James Madison, vol. iv, p. 86.

[214] Before his annual message Monroe wrote to Madison: “The question respecting canals and roads is full of difficulty, growing out of what has passed on it. After all the considerations I have given it, I am fixed in the opinion, that the right is not in Congress, and that it would be improper in me, after your negative, to allow them to discuss the subject and bring in a bill for me to sign in the expectation that I would do it. I have therefore decided ... to recommend the procuring of an amendment from the states, so as to vest the right in Congress.” Writings of James Monroe, vol. vi, p. 32. Madison replied, approving this course. “_The expediency of vesting in Congress_,” he said, “a power as to roads and canals, I have never doubted, and there has never been a moment when such a proposition to the states was so likely to be approved.” Letters ... of James Madison, vol. iii, p. 50.

[215] Richardson, vol. ii, p. 18.

[216] Annals of 15th Congress, 1st Sess., vol. i, p. 451.

[217] Annals of 15th Cong., 1st Sess., vol. ii, p. 1366.

[218] Annals of 15th Cong., 1st Sess., vol. i, p. 1173. On April 27, 1816, Congress appropriated money “for the purpose of repairing and keeping in repair” certain roads under the direction of the Secretary of War. 3 Stat. L. 315. On May 20, 1826, provision was made for the repair of a postroad under the direction of the postmaster general. 4 Stat. L. 190, 154. No mention was made of the consent of the states.

[219] Annals of 15th Congress, 1st Sess., vol. i, p. 1169.

[220] Annals of 15th Cong., 1st Sess., vol. ii, p. 1380 ff.

[221] Ames, The Proposed Amendments to the Constitution of the United States during the First Century of its History, p. 20. (Report of the American Historical Association, 1896.)

[222] Annals of 15th Congress, 1st Sess., vol. i, pp. 211, 292; Ames, p. 260. Martin Van Buren while in the Senate urged a similar amendment (1824-1825) and there were others who proposed like resolutions. Ames, p. 261.

[223] See above, p. 67.

[224] Annals of 15th Congress, 2d Sess., pp. 544, 2443.

[225] 3 Stat. L. 412, 426, 500, 560, 604, 728.

[226] Richardson, vol. ii, p. 142. Monroe’s veto was not unexpected. He had sounded a warning in his annual message of 1822 when he said that a power to execute a system of internal improvements, “confined to great national purposes and with proper limitations, would be productive of eminent advantage to our Union,” and thus “thought it advisable that an amendment of the Constitution to that effect should be recommended to the several states.” Ibid., vol. ii, p. 191.

[227] 1 Willoughby on the Constitution, 588. As late as 1827 Madison wrote to Monroe concerning the Cumberland Road: “I cannot assign the grounds assumed for it by Congress, or which produced his [Jefferson’s] sanction. I suspect that the question of constitutionality was but slightly, if at all, examined by the former, and that the executive consent was doubtingly and hesitatingly given. Having once become a law and being a measure of singular utility, additional appropriations took place of course under the same administration, and with the accumulated impulse thus derived, were continued under the succeeding one, with less critical investigation, perhaps, than was due to the case.” Madison, Works, vol. iii, p. 55.

[228] The validity of Monroe’s argument is treated below, p. 81. Perhaps it may not be amiss to add that I have not attempted an exhaustive consideration of congressional activity in respect to road construction. This has been done by Nelson, Presidential Influence on the Policy of Internal Improvements, and Young, A Political and Constitutional Study of the Cumberland Road. There are also excellent and less specialized accounts in Babcock, The Rise of American Nationality, ch. xv, Turner, The Rise of the New West, ch. xiii (American Nation, vols. 13 and 14), and Schouler, History of the United States, vol. iii. My sole purpose has been to treat congressional action and presidential opinion from their constitutional aspects in relation to the power to establish postoffices and postroads.

[229] 4 Stat. L. 71; for the list of appropriations, see Nelson, p. 57; see also Lalor, Cyclopaedia of Political Science (Internal Improvements), vol. ii, p. 568.

[230] Richardson, vol. ii, p. 281.

[231] Mason, The Veto Power, pp. 143, 145.

[232] Richardson, vol. ii, p. 452.

[233] Ibid., vol. ii, p. 492.

[234] Richardson, vol. iii, p. 119; Bassett, Life of Andrew Jackson, vol. ii, pp. 483-495.

[235] 12 Stat. L. 334.

[236] See also Act of July 1, 1862; 12 Stat. L. 489.

[237] 37 Stat. L. 552.

[238] Sloane, Party Government in the United States of America, p. 316.

[239] Public, No. 69, 63d Congress; Act of March 12, 1914. See also 63d Cong., 1 Sess., S. Rept. No. 65; 63d Cong., 2d Sess., H. Rept. No. 341, and Weems, “Government Railroads in Alaska,” North American Review, April, 1914.

[240] Richardson, vol. ii, p. 555.

[241] 4 Wheat. 316 (1819).

[242] In his Commentaries, Story devotes twenty pages to an exposition of both sides of the controversy and concludes: “The reader must decide for himself, upon the preponderance of the argument.” Vol. iii, p. 46. The incident of submitting the message to the Supreme Court is given in detail by Schouler, History of the United States, vol. iii, p. 254 ff. As to advisory opinions, see 1 Willoughby on the Constitution, 13, and Thayer, Cases on Constitutional Law, vol. i, p. 175.

[243] 2 Stat. L. 275, 277. In 1810 the postmaster general was given authority to “provide for the carriage of the mail on all postroads that are or may be established by law,” and to “direct the route or road, when there are more than one between places designated by law for a postroad, which route shall be considered as the postroad”; and the lines designated in contracts for carrying the mail were to be considered postroads within the provisions of the act. 2 Stat. L. 592. But in 1825 while the authority of the postmaster general to designate different routes was continued, there was a further provision that in cases not covered by contracts, “the road, on which such mail shall be transported, shall become a postroad and so continue until the transportation thereon shall cease.” 4 Stat. L. 102.

[244] Miscellaneous State Papers, vol. ii, p. 175.

[245] Ibid., p. 205.

[246] Ibid., p. 272.

[247] Ibid., p. 301. See U. S. v. Hudson & Goodwin, 7 Cranch 32 (1812).

[248] Young, The Cumberland Road, p. 79.

[249] Laws of Pennsylvania, 1827-28, p. 500.

[250] Richardson, vol. ii, p. 217.

[251] 18th Cong., 1st Sess., House Rept. No. 118.

[252] Act of March 3, 1829; 4 Stat. L. 363.

[253] Laws of Maryland, 1831-1832, ch. 55.

[254] 13 Congressional Debates, 1132.

[255] 24th Cong., 1st Sess., Sen. Doc. No. 196.

[256] 28th Cong., 1st Sess., Sen. Doc. No. 324, p. 7.

[257] 28th Cong., 2d Sess., Sen. Doc. No. 41, and 29th Cong., 2d Sess., Sen. Doc. No. 70.

[258] Young, The Cumberland Road, p. 87.

[259] Young, p. 98, and _passim_ for an able account of the whole controversy over jurisdiction. I have here attempted to present only the points necessary for an understanding of the constitutional problems that the courts were called upon to consider.

[260] Dickey v. Maysville, etc., Co., 7 Dana (37 Ky.) 113 (1838).

[261] “Every postroad is a national road,” said the court. “So far as it is a postroad, it is as national as the Chesapeake Bay or the Mississippi River.”

[262] Seabright v. Stokes, 3 Howard 151 (1845).

[263] See also Neil v. Ohio, 3 How. 720 (1845), and Achison v. Huddleson, 12 How. 293 (1851). Congress, under an act approved February 25, 1867, granted the state of Oregon certain lands for the construction of a military road, with the reservation that it should be free for the passage of federal property, troops or mails. An incorporated company undertook construction of the road, but was not permitted to charge tolls. It was provided in the grant that bridges should be constructed to permit the use of the road by wagons. This was done by parties other than the road company, and when mail contractors paid them tolls they had a right of action for reimbursement from the feasor company. Schutz v. Dalles Military Road Co., 7 Or. 259 (1879).

[264] Young, The Cumberland Road, p. 100. The question of state tolls on mail carriers will be treated in the chapter on “The Power of the States to Interfere with the Mails.”

[265] “The government of the United States cannot construct a postroad within a state of this union without its consent; but Congress may declare, that is, establish, such a road already opened and made a public highway by the direct or indirect authority of the state.... The United States have the mere right of transit over these roads for the purpose of carrying the mail, and in case of obstructing this right their laws provide an adequate remedy.... The act of Congress making all railroads postroads means only such as have charters from the several states.” Cleveland, P. & A. R. Co. v. Franklin Canal Co., 5 Fed. Cas. 1044 (1853).

[266] 13 Stat. L. 365.

[267] 15 Stat. L. 124.

[268] U. S. v. Inlots, 26 Fed. Cas. 482 (1873). See also Trombley v. Humphrey, 23 Mich. 472 (1871). and 1 Kent’s Comm. 268, Note A.

[269] Kohl v. U. S., 91 U. S. 367 (1875).

[270] 5 Stat. L. 283.

[271] Pennsylvania v. Wheeling Bridge Co., 18 How. 421 (1856); see also 13 How. 518 (1852).

[272] 12 Stat. L. 205. See Blackham v. Gresham, 16 Fed. Rep. 609 (1883), and U. S. v. Kochersperger, 26 Fed. Cas. 803 (1860), where it was said: “The public streets of a municipal town over which the mail may be carried in any of the routes established by Congress as postroads, are doubtless, postroads for the passage of the mail. Whether the streets of such a town can be established by Congress as postroads for any other purpose is questionable.... So far as the prohibition of private letter carrying within the limits of such a town may be concerned, the legislative power which is wanting under the head of postroads, may, perhaps, be incidental to the execution of the power to establish postoffices. If this be so, the point may be of little ultimate practical importance.” Blackham v. Gresham upheld the act of 1861.

[273] See Postal Laws and Regulations of 1913, p. 605.

[274] California v. Pacific Railroad Co., 127 U. S. 1 (1888). Cases involving these points will be treated in a later chapter on “The Extension of Federal Control over Postroads.”

[275] Ex parte Jackson, 96 U. S. 727 (1878).

[276] “Congress shall make no law ... abridging the freedom of speech or of the press.” An executive order, deriving its validity from an act of Congress would, of course, be illegal if abridging the liberty of the press, even though the act itself did not.

[277] Von Holst, Constitutional History of the United States, vol. ii, p. 127.

[278] The Origin and Growth of the American Constitution, p. 230.

[279] Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913).

[280] Farrand, vol. ii, pp. 334, 341.

[281] Ibid., pp. 617, 618; in Pinckney’s plan there was a limitation upon Congress to preserve the freedom of the press. Ibid., vol. iii, pp. 599, 609. A motion was made in the convention to appoint a committee to prepare a bill of rights and was unanimously rejected. Ibid., vol. ii, p. 582.

[282] Farrand, vol. iii, 256; Elliot’s Debates, vol. iv, pp. 315, 316. Mr. Pinckney obviously overlooked the possibility that the freedom of the press might incidentally be limited through the exercise by Congress of one of its delegated powers, a possibility which became stronger when the doctrine of implied powers was developed. Particularly was this true in reference to postoffice regulations.

[283] The Federalist, No. 84. In a footnote Hamilton scouts the idea that the liberty of the press may be affected by duties on publications which might be “so high as to amount to a prohibition.... We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country.” The extent of duties, if levied, “must depend on legislative discretion, regulated by public opinion.... It would be quite as significant to declare that the government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.” Newspapers were in fact taxed during the Civil War, and revenue to the amount of $980,089 was raised by this means. Lalor, Encyclopaedia of Political Science, (Art., “Press”), vol. iii, 321.

Commenting upon Hamilton’s position, Story remarked: “The want of a bill of rights then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, ought not to receive this solemn sanction.” Story, Commentaries, vol. iii, p. 721.

[284] Annals of 1st Congress, vol. i, p. 434.

[285] Elliot’s Debates, vol. ii, p. 552; vol. iii, 659; Thorpe, Constitutional History, vol. ii, 204.

[286] Cooley’s Blackstone, Book iv, pp. 151, 152. Lord Kenyon’s view was practically the same. He said: “A man may publish anything which twelve of his countrymen think is not blamable, but he ought to be punished if he publishes what is blamable.” Rex v. Cuthill, 27 St. Trials, 675. Cf. Professor Dicey’s classic statement: “Freedom of discussion is, then, in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.” Law of the Constitution (8th ed.), p. 242.

[287] 3 Johns. Cas. (N. Y.) 337 (1798); Hamilton’s Works (Lodge’s Ed.), vol. vii, p. 339. See the able analysis of Hamilton’s definition by Professor Schofield, “Freedom of the Press in the United States,” in Proceedings of the American Sociological Society, vol. ix, p. 67, at p. 88 ff. (1915).

[288] Story, Commentaries, vol. iii, p. 732. To the same effect is Kent, Commentaries, vol. ii, lec. 24. A different contention, however, seems to have been made by Tucker, Blackstone’s Commentaries, vol. ii, App., Note G, pp. 11-30.

[289] These cases will be considered later in this chapter.

[290] Patterson v. Colorado, 205 U. S. 458 (1907). But see Mr. Justice Harlan’s dissent, Professor Schofield’s criticism of the majority opinion (Freedom of the Press in the United States, pp. 110-112), and Respublica v. Oswald, 1 Dall. 319 (1788). In U. S. v. Cruikshank, 92 U. S. 542 (1876), the court held: “The First Amendment to the Constitution ... like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the state governments in respect to their own citizens, but to operate upon the national government alone. ‘The scope and application of these amendments are no longer subjects of discussion here,’ They left the authority of the states just where they found it, and added nothing to the already existing powers of the United States.”

Professor Schofield is of the opinion that the Slaughter House Cases, 16 Wall. 36 (1872), are authority for the principle that “the right to publish truth on matters of national public concern is one of the privileges and immunities of citizens of the United States protected from abridgment by any state by the first prohibition in the Fourteenth Amendment.” Freedom of the Press in the United States, p. 113. It was held in U. S. v. Hall, 26 Fed. Cas. 79 (1871), that “the right of freedom of speech, and other rights enumerated in the first eight articles of amendment to the Constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the Constitution, that Congress has the power to protect them by appropriate legislation.” See Lien, Privileges and Immunities of Citizens of the United States, p. 69. The Supreme Court in Patterson v. Colorado, above, refused to decide whether the liberty of the press declared in the First Amendment, is included by the word “liberty” in the Fourteenth Amendment. These questions, however, are outside the purview of the present discussion.

[291] Patterson, Liberty of the Press, Speech and Public Worship, p. 61 ff.; 2 Willoughby on the Constitution, 844; and Townshend, Slander and Libel, 2d ed., sec. 252.

[292] Schofield, Freedom of the Press in the United States, pp. 78, 79 and 110.

[293] The freedom of the press had, of course, figured in the discussion of the so-called Sedition Act passed by Congress on July 14, 1798. It was a factor also in the consideration by the Senate (December, 1901) of legislation “to prevent the teaching and promulgation of anarchical doctrines in the United States.” See my paper, “Federal Interference with the Freedom of the Press,” 23 Yale Law Journal, 559 and authorities there cited.

[294] Niles’ Register, vol. xlviii, p. 402.

[295] Ibid., p. 403.

[296] See Hurd, Law of Freedom and Bondage, vol. ii, 9, 10, 86, 97, 99, 147, 161, 170, 173. The Virginia law specifically included postmasters within its provisions. One indictment under the Alabama law was based upon the following objectionable language: “God commands, and all nature cries out, that man should not be held as property. The system of making men property has plunged 2,250,000 of our fellow countrymen into the deepest physical and moral degradation, and they are every moment sinking deeper.” Niles’ Register, vol. xlix, p. 358.

[297] Niles’ Register, vol. xlviii, p. 447.

[298] Niles’ Register, vol. xlviii, p. 448.

[299] The legal aspects of this solution of the problem will be treated in the chapter following.

[300] Statesman’s Manual, vol. ii, p. 911.

[301] 12 Debates of Congress, 26, 33.

[302] Calhoun had for some time been interested in the problem, his attitude being indicated in September, when he wrote to the editor of the Washington _Telegraph_: “The indications are that the south will be unanimous in their resistance and that their resistance will be of the most determined character, even to the extent of disunion; if that should be necessary to arrest the evil. I trust, however, it may be arrested far short of such extremity.” Niles’ Register, vol. xlix, 49.

[303] 12 Debates of Congress, 383; Calhoun’s Works, vol. v, p. 191.

[304] 1 Stat. L. 596.

[305] Italics are mine.