The postal power of Congress: A study in constitutional expansion
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Title: The postal power of Congress: A study in constitutional expansion
Author: Lindsay Rogers
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*** START OF THE PROJECT GUTENBERG EBOOK THE POSTAL POWER OF CONGRESS: A STUDY IN CONSTITUTIONAL EXPANSION ***
THE POSTAL POWER OF CONGRESS
THE POSTAL POWER OF CONGRESS
A STUDY IN CONSTITUTIONAL EXPANSION
BY
LINDSAY ROGERS
A DISSERTATION
Submitted to the Board of University Studies of The Johns
Hopkins University in Conformity with the Requirements
for the degree of Doctor of Philosophy
1915
BALTIMORE
1916
COPYRIGHT 1916 BY
THE JOHNS HOPKINS PRESS
PRESS OF
THE NEW ERA PRINTING COMPANY
LANCASTER, PA.
CONTENTS
PAGE
PREFACE vii
CHAPTER I. Introductory: The Antecedents of the Power 9
CHAPTER II. The Power of Congress to Establish Postoffices 26
Expansion of Facilities 26
Collectivist Activities 33
Postal Crimes 36
Fraud Orders 56
CHAPTER III. The Power of Congress to Establish Postroads 61
Legislative Action 61
Judicial Determinations 80
CHAPTER IV. Limitations on the Postal Power 97
Freedom of the Press 98
Unreasonable Searches and Seizures 123
CHAPTER V. The Power of the States to Interfere with the
Mails 127
CHAPTER VI. The Extension of Federal Control Over Postroads 150
Federal Ownership of Railroads 150
Postal Telegraphs and Telephones 156
CHAPTER VII. The Extension of Federal Control Through
Exclusion From the Mails 158
PREFACE
The purpose of this essay is to trace the legislative and judicial
history of the grant to Congress of the power “to establish postoffices
and postroads,” and to discuss the constitutionality of the proposals
that, under this clause, federal control may be extended to subjects
over which Congress has no direct authority. The essay is thus one
in constitutional expansion, and does not consider the history
or efficiency of the postoffice as an administrative arm of the
government. A treatment of this subject, which has as yet received
scant notice, I may some day attempt.
Portions of Chapters IV and VII have appeared as articles on “Federal
Interference with the Freedom of the Press,” and “The Extension of
Federal Control through the Regulation of the Mails,” in the _Yale Law
Journal_ (May, 1914) and the _Harvard Law Review_ (November, 1913)
respectively. They have been thoroughly revised for publication in
their present form. Chapter V appeared in substantially the same form
in the _Virginia Law Review_ (November, 1915).
I am under great obligations to Professor W. W. Willoughby, not only
for much direct assistance in the preparation of this essay, but for
the inspiration of his productive scholarship.
L. R.
THE POSTAL POWER OF CONGRESS
CHAPTER I
INTRODUCTORY: THE ANTECEDENTS OF THE POWER
It is, perhaps, not insignificant that _The Federalist_ contains but
a single reference to the power lodged in Congress “to establish
postoffices and postroads.” The writers of that incomparable collection
of political papers which discussed in such exhaustive detail the
disputed points of the proposed governmental frame-work for the United
States of America, hardly needed to argue that the proposed delegation
could not be deemed dangerous and was admittedly one of national
concern. “The power of establishing postroads,” said Madison, “must,
in every view, be a harmless power, and may, perhaps, by judicious
management, become productive of great public conveniency. Nothing
which tends to facilitate the intercourse between the states can be
deemed unworthy of the public care.”[1]
Half a century later, Story prefaced the discussion of this power in
his _Commentaries_, with the remark that, “One cannot but feel, at the
present time, an inclination to smile at the guarded caution of these
expressions, and the hesitating avowal of the importance of the power.
It affords, perhaps, one of the most striking proofs, how much the
growth and prosperity of the country have outstripped the most sanguine
anticipations of our most enlightened patriots.”[2]
At the time Story wrote, the postal power had, of course, already
achieved a “commercial, political, intellectual and private”
importance, “of incalculable value to the permanent interests of the
Union,” vital both to the government and to individuals. But there was
also the problem, lately acute, as to whether Congress had simply the
power “to designate, or point out, what roads shall be mail roads, and
the right of passage or way along them when so designated,” or the
larger power “to construct any roads which Congress may deem proper for
the conveyance of the mail, and to keep them in due repair for such
purpose.”[3] The remarkable benefits already achieved and the disputed
extensions were the developments which excited Story’s surprise at the
unprophetic remark of _The Federalist_.
But for some time the postoffice has been a common carrier and is now
supplanting the express companies; it exercises banking functions not
only for facilitating exchange but for savings deposits, and other
collectivist activities are most strongly urged. The Supreme Court of
the United States has upheld a broad power in Congress to prevent and
punish interference with the carriage of the mails, and it is thus
possible to make further extensions of federal authority.[4] The right
to incorporate railways and build postroads is firmly established, and
assertions are made that it is both competent and advisable for federal
authority to assume control of the telephone and telegraph systems and
perhaps the railways themselves. It is, finally, argued that Congress
may solve problems of purely local origin, and of primary sectional
concern, through the simple expedient of denying the use of the mails
unless certain regulative conditions are complied with. Viewing these
extensions as either definitely upheld by the Supreme Court, or
seriously urged, one cannot now but smile at the “guarded caution” of
Story’s description and his “hesitating avowal” that postroads might,
with certain restrictions, be constructed under federal auspices. The
distinguished jurist, however, wrote more prophetically than he knew,
when he emphasized the importance of this power, “both theoretically
and practically.”
Yet it is not unnatural that at the time the Constitution was framed,
the importance of the postal power should have been inadequately
estimated, since, inherently, it must be conditioned by the existing
mechanical means of intercourse and communication. It seemed that the
nation would be sufficiently fortunate were it to be born with promise
of maintaining existence, and it was neither possible nor advisable to
scrutinize its powers of which future necessity or expediency might
require an extension for the purposes of the nation. And, moreover, the
growth of postal facilities, from their first manifestation up to the
adoption of the Constitution was not sufficiently pronounced to augur
a great deal for the future. Travel and intercourse were extremely
difficult; and the cognate questions were to come only with the
development of society.
The maintenance of postal facilities has always been a recognized
function of the state, and this was true even in early Rome. In
England, the sixteenth century saw the first definite steps for the
establishment of a service, but even before this communications
were carried by royal messengers compensated by the Crown. Private
posts were, of course, used, but official letters on state matters
constituted so large a bulk of the correspondence and the problem was
one so fitted for solution by the state that it was inevitable that the
postal establishment should be conducted under the auspices of, and
supported directly by the government.[5]
In the American colonies the first attempt to establish a mail service
was made in 1639 by the General Court of Massachusetts. “For preventing
the miscarriage of letters, ... It is ordered that notice bee given,
that Richard Fairbanks, his house in Boston, is the place appointed
for all letters, which are brought from beyond the seas, or are to
bee sent thither; ... are to bee brought to him and hee is to take
care, that they bee delivered or sent according to their directions
and hee is allowed for every such letter 1_d._ and must answer for all
miscarriages through his owne neglect in this kind; provided no man
shall bee compelled to bring his letters thither except hee please.” So
runs the entry in the court records.[6]
This, however, applied only to foreign mail, and it was not until
December, 1672 that there was an effort to establish a domestic post,
Francis Lovelace, governor of New York, taking the initiative, and his
messenger going to Connecticut. Soon afterwards the General Court of
Massachusetts appointed a postmaster and a proclamation was issued by
the home government calling for the establishment of postoffices at
convenient places on the American continent.[7]
The office of postmaster general for America was created in 1692,
permission being granted Thomas Neale and his executors by the Lords
of Trade and Plantations to establish “an office or offices for the
receiving and dispatching letters and pacquets, and to receive, send
and deliver the same under such rates and sums as the planters shall
agree to give.”[8]
The next forty years saw some extensions of postal facilities, but the
improvement was slight. In 1683 William Penn established a postoffice
in Pennsylvania, and in 1736 a weekly mail was begun between Boston
and New York, but intercolonial communication was very restricted,
and it was not until 1737, with the appointment of Benjamin Franklin
as postmaster general at Philadelphia and postmaster general of the
Colonies in 1753 that there were any noticeable gains, or any signs of
important developments for the state function of which he was placed
in charge. Franklin was active in establishing new posts as far as was
possible and began the practice of sending newspapers through the mails
free of charge. When he was turned out of office in 1774, he wrote that
“before I was displaced by a freak of the ministers, we had brought
it [the postoffice] to yield three times as much clear revenue to the
crown as the postoffice in Ireland. Since that impudent transaction
they have received from it not one farthing.”[9]
After Franklin’s dismissal the new postmaster at Philadelphia raised
the rates on newspapers to such proportions that William Goddard, an
editor of Baltimore and Philadelphia, was forced to discontinue the
publication of his journal. In March, 1774 Goddard began a lengthy
journey through the New England States to gain support for the
“Constitutional American Post Office” which he hoped to establish.[10]
A tentative line was inaugurated between Baltimore and Philadelphia,
but this was gradually extended so as to provide tolerably adequate
facilities for all of the colonies, Goddard having secured the support
of the assemblies in New Hampshire, Massachusetts, Rhode Island,
New Jersey, and New York.[11] He realized from the first that the
facilities he was seeking should be furnished under the auspices
of the Continental Congress, and when this body acted on July 26,
1775 and agreed to the establishment of a post, Goddard’s plans were
accepted.[12]
The establishment of postal facilities was one of the very first
problems taken up by the Continental Congress when it began to
exercise sovereign powers which it did not legally possess, but which
of necessity it had to assume. On May 29, 1775 the Congress resolved
that, “As the present critical situation of the colonies renders it
highly desirable that ways and means should be devised for the speedy
and secure conveyance of Intelligence from one end of the Continent
to the other,” a committee be appointed to consider the best means of
establishing a post,[13] and on July 26, 1775 the Congress took up the
committee’s report, appointed Benjamin Franklin postmaster general for
the United Colonies, established a line of communication from Falmouth
to Savannah and recommended the inauguration of cross posts within the
discretion of the postmaster general.[14] Franking privileges were
almost immediately established for the members of Congress and for the
army commanders, and were later extended, with some limitations, to
private soldiers in the service.[15]
As yet the Congress had not aimed to make its postal establishment a
monopoly and so it was a question of war policy rather than of the
unrestricted exercise of a governmental function which inspired the
motion that the parliamentary posts be stopped. Richard Henry Lee, for
example, argued that “the Ministry are mutilating our correspondence
in England, and our enemies here are corresponding for our ruin;” but
the better opinion prevailed that the measure was an offensive one not
proper at that particular juncture. In fact the ministerial post had
been of service to the colonists in giving them information which they
could not otherwise have obtained, and so it was recommended that the
people use the constitutional establishment as much as possible. Before
the end of the year, as it turned out, this problem was settled without
the intervention of Congress for the British postoffice stopped its
service in the colonies.[16]
During the war the adequacy of the postal facilities was often before
Congress. Committees were appointed to investigate conditions;
Congress by resolution appreciated the fact that the “communication
of intelligence with frequency and despatch from one part to another
of this extensive continent, is essentially requisite to its safety.”
The postmaster general was therefore requested to exercise care in the
selection of riders and to discharge dilatory ones when discovered.
Deputy postmasters were excused “from those public duties which may
call them from attendance at their offices;” admonitory resolutions
directed ferry keepers to expedite the passage of postriders, and a
public monopoly was aimed at through the indirect method of reducing
the wages of government messengers who carried private packages.[17]
On November 7, 1776, Richard Bache was appointed postmaster general
vice Franklin who had gone on the mission to France, and after this
change the attempts of Congress to improve the service seem to be
more frequent.[18] In January of the next year, Bache was requested
to furnish a list of those in the service, it having been reported
that “persons disaffected to the American cause” had been employed
“with the most mischievous effects” and he was further requested to
“assign reasons why the late resolves of Congress for regulating the
postoffice are not carried into execution.”[19] In February a committee
was appointed to revise the regulations; it recommended extensions
and suggested that all employees be required to take an “oath of
fidelity to the United States and also an oath of office,” and urged
that once in six months the postmaster general be required to transmit
to Congress a list of those in the service.[20] The legislatures of
the states were asked to exempt from all military duties “persons
immediately concerned in conducting the business of the postoffice,”
but still the establishment did not work to the satisfaction of
Congress, and other committees were appointed to make recommendations
and the rates of postage were several times increased. One new step
was taken when an inspector of dead letters was appointed to “examine
all dead letters at the expiration of each quarter; to communicate to
Congress such letters as contain inimical schemes or intelligence;
to preserve carefully all money, loan office certificates, lottery
tickets, notes of hand, and other valuable papers enclosed in any
of them, and be accountable” for their safekeeping, subject to the
restriction that he take “no copy of any letter whatever,” and refuse
“to divulge their contents to any but Congress or those whom they may
appoint for the purpose.”[21]
Meanwhile the Articles of Confederation had been agreed upon and
submitted to the states. There was no objection to a grant of the
postal power, but the terms in which it was made limited its extent.
Part of Article XVIII in the first draft gave the United States
“the sole and exclusive right and power of ... establishing and
regulating postoffices throughout all the United Colonies, on lines of
communication from one colony to another,” and later on in the same
article, it was provided that the United States “shall never impose or
levy any taxes or duties except in managing the postoffice.”[22] In the
second draft, the grant was made more limited; it gave Congress “the
sole and exclusive right and power ... of establishing and regulating
postoffices from one state to another throughout all the United States
and exacting such postage on the papers passing through the same as
may be requisite to defray the expenses of said office.” In this form
the clause became part of the Articles of Confederation as adopted by
the states,[23] and there was no further discussion of the power,
negative action being taken on the motion of the Pennsylvania delegates
(June 25, 1778) “that such part of the 9th article as respects the
postoffice, be altered or amended so as that Congress be obliged to
lay the accounts annually before the legislatures of the several
states.”[24]
The Articles of Confederation gave the limited power of establishing
and regulating postoffices “from one state to another.” Thus,
intrastate postal facilities were beyond the purview of Congress;
nothing was said, moreover, about the establishment of postroads, or
the opening up of new routes, and the sole power of taxation granted to
Congress was confined to an amount sufficient to defray the expenses of
the system. Nevertheless, the inadequacy of the grant was theoretical
rather than real, since Congress was so occupied with other more
pressing affairs, that it was content with a limited communication of
intelligence, desiring solely that this be as speedy and secure as
possible.
From this time on references to the postal establishment in the
congressional journals are of frequent occurrence; additional
investigating committees were established and the personnel of the
standing committee was changed. Expenses grew apace while the revenues
diminished and this called for measures of retrenchment. A resolution
of December 27, 1779, contained the regulation that “the post shall
set out and arrive at the place where Congress shall be sitting twice
in every week,” and it was at the same time urged that “the whole
expensive system of express riding be totally abolished except by the
particular order of Congress upon very special occasions.”[25]
On October 18, 1782, under the power granted by the Articles of
Confederation, there was passed “An Ordinance for Regulating the
Post-Office of the United States of America.” For the period it
was a most elaborate statute and marks the birth of a real postal
establishment. Of such comprehensiveness was the act that when, ten
years later, Congress passed legislation under the authority delegated
by the Constitution, the Ordinance was merely amplified. Its preamble
recited:
“Whereas the communication of intelligence with regularity and dispatch
from one part to another of these United States is essentially
requisite to the safety as well as the commercial interest thereof;
and the United States in Congress assembled being by the Articles of
Confederation vested with the sole and exclusive right and power of
establishing and regulating postoffices throughout all these United
States; and whereas it is become necessary to revise the several
regulations heretofore made relating to the postoffice and reduce to
one act:
“Be it therefore ordained by the United States in Congress assembled,
and it is hereby ordained by the authority of the same, that a
continued communication of posts throughout these United States shall
be established and maintained by and under the direction of the
postmaster general of these United States to extend to and from the
state of New Hampshire to the state of Georgia inclusive, and to and
from such other parts of the United States as from time to time he
shall judge necessary or Congress shall direct.”[26]
The duties of the postmaster general were “to superintend and direct
the postoffice in all its various departments and services ...
agreeably to the rules and regulations” of the ordinance. He was given
the power to appoint an assistant and deputies, for whom he should be
responsible; to station them, and to fix their commissions, with a
maximum limit of 20 per cent. on money “to arise from postage in their
respective departments.” He was given the further power of appointing
postriders, messengers and expresses.
In this ordinance, moreover, Congress attempted to lay down certain
regulations, infraction of which would be punishable, although not
criminally or in an efficient manner. All persons in the service were
forbidden knowingly or wilfully “to open, detain, delay, secrete,
embezzle, or destroy, or cause, procure, permit, or suffer to be
opened, detained, delayed, secreted, embezzled or destroyed, any
letter or letters, packet or packets, or other dispatch or dispatches,
which shall come into his power, hands, or custody, by reason of his
employment in, or relation to, the postoffice, except by the consent
of the person or persons by or to whom the same shall be delivered or
directed, or by an express warrant under the hand of the president
of the Congress of these United States or in time of war, of the
commander in chief of the armies of these United States, or of the
chief executive officer of one of the said states, for that purpose, or
except in such other cases wherein he shall be authorized to do so by
this ordinance.”
All persons in the postal service were required, antecedent to their
employment, to take an oath promising to carry out and obey these
meticulous provisions to safeguard the mails, but the method of
enforcement was ineffective. Congress provided that “if the postmaster
general shall be guilty of the said oath or affirmation or any part
thereof, and be thereof convict, he shall forfeit and pay 1,000 dollars
in an action of debt in the state where the offense shall be committed,
by the treasurer of the United States for the time being.” The penalty
for other employees was $300, but all were “rendered incapable ever
hereafter of holding any office or place of trust or profit under these
United States.”[27]
In order to make probable a higher degree of efficiency and to
insure adequate revenues, the Congress attempted to make and enforce
a monopoly. The Ordinance specified that the postmaster and his
assistants, but “no other person whatsoever shall have the receiving,
taking up, ordering, dispatching ... carrying and delivering of any
letters, packets or other dispatches, from any place within these
United States for hire, reward, or other profit or advantage ... and
any such person or persons presuming to do so, shall forfeit and
pay for every such offense, 20 dollars, to be sued for and recovered
in an action of debt with costs of the suit.” Persons on private
missions were exempted and private cross posts could be established
with the approval of the postmaster general. By the ordinance rates
were fixed and special provisions were made for newspapers which
were to be carried “at such moderate rates as the postmaster general
shall establish.” The franking privilege, finally, was extended to
the officials at Washington and single letters could be sent without
postage to officers of the line in actual service; by early amendments
to the ordinance there were further extensions, Washington was relieved
of paying postage and allowance was made for ministers at foreign
courts.[28]
The incompleteness of the national control over the postoffice and in
particular the inadequacy of the device that really criminal offenses
should be punished by civil suits, were shown in January, 1784 when
Congress considered a robbery which had taken place at Princeton. The
mail had been carried off and some days later was found in a meadow,
several letters having been lost and several more, franked by members
of Congress, having been broken open. The “supreme executive of the
state of New Jersey” was requested to undertake an investigation to
discover those guilty, but when his reply exculpated the Princeton
postmaster “from every suspicion of collusion or fraud” the inquiry was
dropped. Congress could proceed no further.[29]
Another incident showing general acceptance of the fact that the
regulation of the mails and the punishment of offenses against them
should be under plenary national control, occurred a few months later
and was considered by the Committee of the States during a recess of
Congress. An investigating committee reported that an advertisement of
French packet boats was “an open avowal of an intention to contravene
an ordinance of Congress for regulating the postoffice of these United
States; and that the measures therein mentioned ... are a flagrant
violation of the same ordinance ... will greatly injure the revenue
of the postoffice, and, if not prevented, may defeat that useful
institution.” The Committee of the States agreed to the report and
directed that if the postmaster general should determine that the
ordinance had been violated, he should cause the prosecution of the
offenders according to law, namely, make them defendants in actions of
debt for the penalties provided by the ordinance.[30]
On September 4, the postmaster general was given authority to contract
for the conveyance of the mails by stage carriages, if practicable, for
one year, but on the part of some of the states considerable opposition
developed. A motion was made to construe the words “if practicable” as
not binding the postoffice “to form the contract for the transportation
of the mail on terms inconvenient to the mercantile interest, or to
comply with the extravagant demands of the contractors,” but the
vote was in the negative and a second attempt to modify the original
instruction was also unsuccessful.[31] The later motion showed a
disposition on the part of the states to desire flexible national
regulations, which would not necessarily be uniform, but would be
adapted to local needs. The resolution recited that in respect to the
states of New Jersey, Pennsylvania, Delaware, Maryland and Virginia,
the mails might “be carried upon more reasonable and convenient terms
should the postmaster general be left at liberty to contract for the
same either by stage carriages or postriders, as shall appear to him
most conducive to the public interest.
“And whereas the intention of Congress in having the mail transported
by stage carriages was not only to render their conveyance more
certain and secure, but by encouraging the establishment of stages to
make intercourse between different parts of the union less difficult
and expensive than formerly; and as a discretionary power in the
postmaster general either to employ postriders or contract with the
owners of stage carriages for conveying the mail in the states of North
Carolina, South Carolina, and Georgia might interfere with the object
of promoting and establishing the running of stages in said states,
Resolved, that so far as respects these states it is improper to alter
the postmaster general’s present instructions.”[32] Thus very early
attempts were made to secure special local facilities.
During this period, however, subsequent to the ordinance of 1782,
Congress took no important action in regard to the postoffice. It
annually gave the postmaster general authority to contract for the
succeeding year, and to encourage the useful institution of the
postoffice when it could be done without material injury to the
public.[33] In the enforcement of federal regulations, as has been
said, the government was limited by having to sue in actions of debt,
and so it was a foregone conclusion that the postal power, inadequately
vested in Congress under the Articles of Confederation, would be one
of the grants contained in the Constitution. The Pinckney plan as it
was submitted to the Committee of Detail, mentioned “establishing
Post-Offices” as one of the exclusive powers of “the Senate and House
of Delegates in Congress assembled.”[34] Pinckney’s original draft
outlined the power as that “of establishing Post-Offices and raising a
revenue from them.”[35]
In the Convention Mr. Paterson on June 15, 1787 suggested “that in
addition to the power vested in the United States by the existing
articles of Confederation, they be authorized to pass acts for raising
a revenue, ... by a postage on all letters and packages passing through
the general postoffice, to be applied to such federal purposes as they
shall deem proper and expedient.”[36] The report of the Committee of
Detail was made to the Convention on August 6 and provided (Art. VII)
that “The Legislature of the United States shall have the power ... to
establish postoffices.”[37]
Ten days later, the Committee’s report being under consideration it was
proposed that the words “and postroads” be added. This was carried by a
close vote, though it is difficult to attribute the opposition to any
source other than a general fear of giving the federal government too
much power and thus endangering the chances for adoption.[38] To this
feeling also, may be ascribed the result that, when, later, some urged
the insertion of an additional grant “to regulate stages on the post
roads,” the proposal was not reported from the Committee of Detail.[39]
Such a power has, however, been fully exercised.
The report of the Committee of Style, made on September 12, fixed the
grant as that “to establish postoffices and postroads,” this being the
form in which it became a part of the Constitution.[40] Dr. Franklin,
however, advocated that there be added “a power to provide for
cutting canals where deemed necessary.”[41] The motion was seconded,
but Mr. Sherman started the opposition by objecting on the ground
that the “expense in such cases will fall on the United States and
the benefits accrue to the places where the canals may be cut.” Mr.
Wilson, on the contrary, argued that instead of being an expense to
the United States, the canals might be made a source of revenue, and
Madison wanted “an enlargement of the motion into a power to grant
charters of incorporation where the interest of the United States might
require, and the legislative provisions of the individual states might
be incompetent. His primary object, however, was to secure an easy
communication between the states which the free intercourse, now to be
opened, seemed to call for. The political obstacles being removed, a
removal of the natural ones as far as possible ought to follow.”[42]
The question, however, was limited to the single case of canals, and
when put to a vote was defeated, because there was an antipathy to
monopolies,[43] and because, as Gouverneur Morris admitted, “It was
extremely doubtful whether the Constitution they were framing could
ever be passed at all by the people of America; that to give it its
best chance, however, they should make it as palatable as possible,
and put nothing into it, not very essential, which might raise up
enemies.”[44]
This history of the postal clause in the Federal Convention offers
little of interpretative importance. The intent of the framers is
sufficiently clear, although, as pointed out by one commentator, the
delegation is clothed in words which “poorly express its object” and
“feebly indicate the particular measures which may be adopted to carry
out its design. To establish post offices and post roads is the form
of the grant; to create and regulate the entire postal system of the
Government is the evident intent.”[45]
It is possible partially to explain the specific negativing of the
power to cut canals on the ground that there was no limitation to those
cases in which the construction would have been an aid to interstate
commerce or the transportation of the mails. Under the amendment as
proposed Congress would have had the authority to cut a waterway wholly
within a state for purely intrastate purposes.[46] As a matter of fact,
however, this power, which later was to give rise to considerable
controversy, has been exercised by the federal government under its
authority to regulate interstate commerce and establish postroads, just
as the postal grant itself has been extended to cover fields, neither
existing nor within the range of possibility when the Constitution was
adopted.
In the state conventions there was practically no discussion of the
postal power. Its innocuousness was granted. Mr. Jones of New York
was alone in finding a latent aggression, and it was resolved, as
the opinion of the state committee, “that the power of Congress to
establish post-offices and postroads is not to be construed to extend
to the laying out, making, altering, or repairing highways, in any
state, without the consent of the legislature of such state.”[47]
Such a stipulation was destined very soon to become a mere _brutum
fulmen_.[48]
CHAPTER II
THE POWER OF CONGRESS TO ESTABLISH POSTOFFICES
_Expansion of Facilities._--“Our whole economic, social and political
system,” says President Hadley, “has become so dependent upon free and
secure postal communication, that the attempt to measure its specific
effects can be little less than a waste of words.”[49] This is hardly
an overstatement of the case, yet, as we have seen, the importance of
the postal function was recognized before the Constitution was adopted
and when it comprehended only the transmission of intelligence. The
increased importance, however, has been absolute as well as relative,
since through the postoffice the government now does much more than
merely facilitate communication between its citizens.
An act for the temporary establishment of the postoffice was passed by
Congress on September 22, 1789.[50] It provided for the appointment of
a postmaster general, all the details and regulations to be as they
“were under the resolutions and ordinances of the late Congress. The
postmaster general to be subject to the direction of the president
of the United States, in performing the duties of his office, and in
forming contracts for the transportation of the mail.”[51]
For a considerable period congressional and administrative efforts
were devoted almost exclusively to the extension of facilities;
postoffices were established as rapidly as possible; every effort
was made to secure speedy transportation of the mail, to insure
its security, to prevent private competition, and by means of an
increasingly efficient system to weld together distant parts of the
country. The communications of the postmasters general are devoted to
recommendations for the improvement of the service;[52] presidential
messages take pride in reporting the growth of the establishment, which
was rapid. In 1790 there were about 100 postoffices in the country; the
receipts from October, 1790 to October, 1791 were $31,706.27 and the
disbursements left a balance of $5,498.51.[53]
But in 1823 Monroe was able to report to Congress that 88,600 miles of
postroads had been established by law and that the mail was transported
over 85,700 miles of this total.[54] During the two years from July 1,
1823 the increase of the transportation of the mail exceeded 1,500,000
miles annually and 1,040 new postoffices were established.[55] In 1828
the total mileage was 114,536 as compared with 5,642 in 1792 and in
1837 was 142,877 miles.[56] The receipts from postage for the year
ending March 31, 1828 were $1,058,204.34. These figures serve, in
some measure at least, to indicate the rapid expansion of the postal
system.[57]
At the same time there was a commensurate recognition of the importance
of the establishment in the attitude of Congress and the executive in
dealing with it as an administrative arm of the federal government. The
act of 1810 referred to the “postoffice establishment”; an incidental
use of the word “department” is to be found in the laws of 1799 and
1810,[58] but the system became an executive department in 1872 when
Congress, codifying the postal laws, passed an act under which the
department is now organized.[59] In 1827 the postmaster general’s
salary was increased to $6,000 per annum, and he was thus placed on
an equality with cabinet officers; two years later Jackson made him a
member of his official family.[60]
Later in this essay will be found a consideration of the use made by
Congress of the postroads clause,[61] in the assumption of authority
to aid in works of internal improvement, but here some mention should
be made of the connection which has existed between the desire for a
speedy transportation of the mail and aid granted to railroads. This
aid took the form of donations, with mail service free or at reasonable
rates, loans to companies, and general contracts for service, with the
purpose of giving aid as well as paying compensation.[62] In debating
the desirability of governmental stock subscriptions in transportation
undertakings Congress often adverted to the carriage of the mails;
and in 1834 it was proposed to give the Baltimore and Ohio Railroad
Company $320,000 in return for which the mail was to be carried free
forever.[63] Similar suggestions were made from time to time, but there
was little definite action, and in 1845 the postmaster general was
authorized to contract for the transportation of the mail by railroads,
without inviting bids.[64]
Since 1850 the postoffice has not been used, at least avowedly, to aid
railways; the period has rather been one of regulation. Disputes have
arisen over the proper compensation for service rendered, and companies
have refused to give facilities for transportation.[65] It was
proposed, therefore, that the roads be forced to carry the mails, and
in 1870 an act to this effect was applied in the District of Columbia,
compensation to be determined by three commissioners. But in 1872,[66]
the codification of the postal laws provided rates for service, with
compulsory service by the roads which had received land grants; if
the companies were not satisfied with the amounts fixed by Congress,
letters were to be forwarded by horse, and the articles for which
expedition was not required, were to be sent by stage.[67] At present
compensation is determined by an elaborate system, under maximum rates
fixed by Congress. The postmaster general may make reductions for
refusal to transport, when required, upon the fastest trains,[68] and
may impose fines for inefficient service and delays.[69] The necessity
has not arisen, but if the railways should refuse to carry the mails,
on the ground of inadequate compensation, Congress would have the right
to compel transportation, upon reasonable compensation for the taking
of private property for public use.[70]
This, however, is only one phase of the financial problem of the
postoffice; another, very important phase involves the cost to patrons.
Rates for the transmission of letters remained practically unaltered
until 1845, while the charges for newspapers were slightly changed in
the direction of allowing the publishers special privileges. The act
of 1845[71] exercised a broad authority of classification, separating
the mail in order to expedite it, and introducing the free privilege
for newspapers not more than 1,900 square inches in size, distributed
within 30 miles of the place of printing. The act of 1847[72] allowed
free exchanges only between publishers, and following this statute many
changes were made, both in the conditions of exemption from postage
and the rates which were charged. The classification now obtaining was
adopted in 1879,[73] and the cent a pound rate for periodical matter
admitted to “second class” privileges was fixed in 1885.[74]
But while concessions were made to encourage the circulation of
newspapers, Congress maintained rigid restrictions in respect to the
size of the packages that could be carried in the mails. The limit was
three, and later four pounds. This was originally due to the fact that
large packages could not be handled with convenience by the system and
were likely to injure or deface other mail matter. But when federal
facilities became sufficient to take off, or at least raise, the weight
limit, the express companies, which at this time were beginning to
derive a large revenue from carrying parcels, were able to postpone
congressional action until August 24, 1912[75] when the Parcels Post
Act was passed after it had been repeatedly recommended by postmasters
general and long desired by public opinion.[76] Such delay has, of
course, not been without bitter criticism,[77] and in the forties
the rise of the express companies, and their transportation of large
packets and in some cases of matter which the postoffice undertook
to carry, reduced federal revenues and seriously interfered with the
efficiency and effectiveness of the government monopoly.[78] But at any
time the situation could have been remedied by congressional action. On
the other hand, objection has been made to the assumption by Congress
under the postoffice clause, of the functions of a common carrier, on
the ground that they were not comprehended by the original grant.[79]
Now, Congress clearly has the power to insure, upon the payment
of extra fees, the safe transmission of letters or packets to the
addressees, but the postal money order system cannot be justified upon
any such theory. The act of May 17, 1864[80] authorized the postmaster
general to establish, “under such rules and regulations as he may
find expedient and necessary, a uniform money order system at all
post-offices which he may deem suitable therefor.” The law fixed thirty
dollars as the maximum amount for which an order could be issued, the
purpose of the system being to afford “a cheap, immediate and safe
agency for the transfer through the mails of small sums of money.”[81]
In practice the payee or party for whom the money was intended, was not
named in the order, which was given to the applicant upon the payment
of the sum specified and the proper fee, and his filling out a printed
form of application. This was forwarded to the postmaster at the office
upon which the order was drawn, and the latter, therefore, had the
information necessary to detect fraud if any was attempted. The issue
of these postal notes was discontinued in 1894,[82] although their
use has since been urged;[83] under the money order system as it now
obtains, the payee is named in the instrument.[84]
In the Senate there was no debate other than on the administrative
features of the law of 1864;[85] the constitutional question was not
discussed. Some doubt, however, has since been expressed as to the
power of Congress to establish a system of postal savings banks. These
were, according to the title of the act, to hold “savings at interest
with the security of the government for repayment thereof, and for
other purposes.” It was provided that available funds should be used in
the redemption of United States bonds, and the act recited, “that the
faith of the United States is solemnly pledged to the payment of the
deposits made in the postal savings depository offices, with accrued
interest thereof, as herein provided.” This section would seem to imply
that the receiving of deposits could be considered as borrowing money
on the credit of the United States.
Objection, upon constitutional grounds, was, however, made by Mr. Moon
of Tennessee, in a minority report which he presented to the House of
Representatives.[86] He argued that no express authority could be found
in the Constitution, and that “the depository is not a bank within the
legal meaning of that word; nor do the trustees created by this act
collect money (deposits) from the people for governmental purposes,
but simply become federal trustees of private funds for loan or
reinvestment at interest.”
It would seem, however, that the provision for redeeming United States
bonds and the general tenor of the law, could, without violence,
enable the system to be looked upon as established for the purpose of
borrowing money on the credit of the United States, or of obviating
in some degree the issuance of emergency currency in financial crises
through the deposit with the government, and subsequent circulation,
of large sums of money which has hitherto been hoarded. But apart
from this, while extensions of the postal function to include
banking facilities for the receipt of deposits and the issuance of
money orders, were certainly not contemplated by the framers of
the Constitution, and are not connected with the transmission of
intelligence, they are, from foreign precedent, logical parts of
the modern postal power. It is extremely difficult, moreover, for a
citizen to show an amount of interest sufficient to bring before the
courts the constitutionality of such non-essential functions of the
government.[87] And especially is this the case when their exercise
does not entail taxation, but actually results in increased revenues,
and interferes slightly if at all, with the exercise of the same
functions by private undertakings. Finally, it should be remembered
that the powers granted in the postal clause “are not confined to
the instrumentalities of commerce, or the postal service known or in
use when the Constitution was adopted, but they keep pace with the
progress of the country, and adapt themselves to the new developments
of time and circumstances.”[88] According to this view there is no
constitutional doubt as to the right of the postoffice to engage in the
banking activities thus far attempted.
_Collectivist Activities._--The primary purpose of the postal power is,
of course, the transmission of intelligence, but with vast equipment
and organization once in existence, it is a comparatively simple matter
for the government to increase in number and in kind, the services
which the postoffice may perform for its patrons. In New Zealand
postoffices, for example, a person can buy stamps, mail a letter or
parcel, send a telegram, deposit money, collect a pension, report
births and deaths, and insure his life.[89]
It is due, in part, at least, to the federal system of government in
the United States that Congress has been reluctant to increase the
functions of the postoffice. But the money order system and postal
savings banks have now been established, and it seems inevitable that
the telegraph and telephone systems of the country will shortly be
nationalized.[90] So also rural free delivery has caused congressional
aid to be given to the good roads movement and several schemes
have been proposed for extensive road construction under federal
auspices.[91]
The inauguration of the parcel post, which in fact has made the
postoffice a common carrier, has led to serious efforts on the part of
the government towards an adequate appreciation, by possible users,
of the advantages of the new facilities, and a campaign of education
is carried on, not so much with a view of increasing revenues, as
of fostering the “producer to consumer” movement, particularly in
farm products. Congress authorized the Secretary of Agriculture “to
acquire and diffuse among the people of the United States useful
information on subjects connected with the marketing and distributing
of farm products” and under this authority the Office of Markets was
established on May 16, 1913.[92] It employs specialists in marketing
various commodities, and issues bulletins on the facilities for, and
advantages of, shipping different products by parcel post. Agents are
sent to appropriate sections of the country to do personal work and
local offices are active in collecting lists of the names of farmers
and others who have produce to sell, and printing and distributing
these lists to postal patrons who may become purchasers.[93]
It is proposed, furthermore, to use postoffices as employment bureaus,
and a bill, the adoption of which was strongly urged on the Sixty-third
Congress by Senator Clapp, provided that the postmaster general
establish, “under such rules and regulations as he may prescribe,
mutual employment exchanges at all presidential postoffices, where
registers may be kept of any and all persons who make application to be
registered, as either seeking employment, or seeking employees, which
information may also be exchanged between such offices, all in the
interest of the proper and timely distribution of labor throughout the
country.”[94] This service would be made self-sustaining through the
sale of registration stamps. The bill failed of passage.
But pending action of this character, or the adoption by Congress
of legislation designed to lessen unemployment without using the
postoffice, the Secretary of Labor and the Postmaster General,
cooperated in formulating an arrangement by which “information relating
to the distribution of labor could be widely scattered and posted under
the auspices of the United States Government.
“The plan,” Secretary Wilson goes on to explain, “consists of
dated bulletins sent out by the Department of Labor to postmasters
throughout the country, by whom they are posted on the bulletin
boards so that every postoffice patron,--and this means every man,
woman and child,--can easily refer to the information. These are
known as ‘Bulletins of Opportunities.’ They are replaced with others
from time to time as necessary, and suitable notice is given when
they become inoperative. This plan has received the indorsement of
the various state authorities, who have been, and are, cooperating
with the Department of Labor in scattering information about labor
opportunities and conditions in their respective states.”[95]
In collectivist facilities, either at present in existence or very
seriously urged, the American postoffice is, then, not far behind that
of New Zealand. It affords a significant illustration of the tendency
of the federal government gradually to engage in many activities,
properly national, which are too big for the states, and too expensive
or paternalistic for private undertakings. The aim is that the maximum
benefit may inure to the citizen.
_Postal Crimes._--The postal power, as Marshall pointed out in
McCulloch v. Maryland,[96] “is executed by the single act of making
the establishment. But from this has been inferred the power and
duty of carrying the mail along the postroad, from one postoffice
to another. And from this implied power has again been inferred the
right to punish those who steal letters from the postoffice, or rob
the mail. It may be said with some plausibility that the right to
carry the mail and to punish those who rob it is not indispensably
necessary to the establishment of a postoffice and postroad. The right
is indeed essential to the beneficial exercise of the power, but not
indispensably necessary to its existence.”
Such a power was asserted even before the adoption of the Constitution;
the Ordinance of 1782 meticulously forbade the employees to delay or
rob the mails, under penalty of fines “to be used for and recovered
in an action of debt” by the treasurer of the United States; a
supplementary ordinance attempted to establish a monopoly, and it
was made lawful for the postmaster general “to allow and pay to any
informer, one moiety of the penalties which may be recovered upon his
information, for offences, against the fourth and fifth clauses of the
above mentioned ordinance.”[97]
The Act of February 20, 1792[98] greatly extended these criminal
provisions, infraction of which was to be punished in the federal
courts. Some of the penalties provided for the more serious offences
now seem severe, but they are evidence of how important Congress deemed
the inviolability of the mails. By this act it was provided, “that if
any person shall obstruct or retard the passage of the mail, or of any
horse or carriage carrying the same, he shall, upon conviction, for
every offence pay a fine not exceeding one hundred dollars. And if any
ferryman shall, by wilful negligence, or refusal to transport the mail
across any ferry, delay the same, he shall forfeit and pay, for each
half hour that the same shall be so delayed, a sum not exceeding ten
dollars.” A fine and disqualification for holding any office under the
United States were the penalties inflicted “if any deputy postmaster
or other person authorized by the postmaster general to receive the
postage of letters, shall fraudulently demand or receive any rate of
postage, or any gratuity or reward, other than is provided by this act
for the postage of letters or packets.” Vessels were forbidden to enter
any port of the United States and break bulk until their letters had
been delivered to the postmaster, and the officer of the port could
require an oath of delivery. Exception, however, was made in the case
of letters to the owner or consignee, and when the vessel had letters
directed to another port.
In an effort to make the postal system efficient by insuring it
against private competition and the consequent diminution of revenues,
there was a provision (still in force, although modified), declaring
the federal establishment a monopoly and making any infringement
punishable by a fine. The act recited “that if any person, other than
the postmaster general or his deputies, or persons by them employed,
shall take up, receive, order, dispatch, carry, convey, or deliver, any
letter or letters, packet or packets, other than newspapers, for hire
or reward, or shall be concerned in setting up any foot or horse post,
wagon or other carriage, by or in which any letter or packet shall be
carried for hire, on any established postroad, or any packet or other
vessel or boat, or any conveyance whatever, whereby the revenue of the
general postoffice may be injured, every person so offending shall
forfeit for every such offence, the sum of two hundred dollars.[99]
_Provided_, that it shall and may be lawful for every person to send
letters or packets by special messenger.”
Fine and imprisonment were the punishments for unlawfully delaying,
embezzling, secreting, or destroying any letter or package not
containing money; but if the letter or packet contained any kind of
money, negotiable paper, bonds, or warrants, the punishment upon
conviction was death. The carrier was forbidden to desert the mail
before he reached his destination; robbing any carrier,[100] the
mail, or the postoffice was punishable by death. Ten dollars was the
penalty for an unlawful use of the franking privilege. One half of
all the fines recovered went to the persons informing and prosecuting
for the offences, and in 1797 it was provided that accomplices in the
commission of postal crimes should be subject to the same punishment
as the principals.[101] In 1810 whipping was abolished,[102] but the
death penalty for a second robbery, or for putting the carrier’s life
in jeopardy, was continued. This is strong evidence of congressional
insistence upon the sanctity of the mails, since in 1825 only fine and
imprisonment were the punishment for assaults on the high seas, or
within admiralty jurisdiction with intent to commit a felony.[103]
Upon the basis of these early regulations, Congress has passed many
laws calculated to prevent interference with the mails or their misuse;
most of the original crimes are still forbidden and the changes
made have been in detail rather than character, with one important
exception: there has gradually been built up an _Index Expurgatorius_
of articles which it is unlawful to deposit in, or to take from, the
mails for purposes of circulation. But with this exception, the penal
laws do not differ radically from those of a century ago.
Nearly all “Offenses against the Postal Service” have been brought
together as Chapter 8 of the Criminal Code of the United States.[104]
It is now unlawful to conduct, or profess to conduct, a postoffice
without authority; to carry the mail otherwise than according to law;
to set up private expresses; to transport persons unlawfully conveying
the mail; to send letters by private express or for carriers to convey
them over regular post routes otherwise than in the mail; to wear the
uniform of a carrier without authority or to pose as a carrier of the
United States mail when such is not in fact the case. Injuring mail
bags, stealing postoffice property, stealing or forcing mail locks
or keys, breaking into or entering a postoffice, unlawfully entering
a postal car, stealing, secreting and embezzling mail matter or its
contents,[105] assaulting a carrier with intent to rob and robbing the
mail; injuring letter boxes or mail matter; “knowingly and wilfully”
obstructing or retarding the passage of the mail, all are crimes
punishable in the federal courts.
It is an offence for any employee of the service to detain, destroy or
embezzle a letter or newspaper; for a ferryman to “delay the passage of
the mail by willful neglect or refusal to transport”; for the master of
a vessel to fail to deposit with the postoffice all mail from abroad
or to break bulk before making such delivery. No one may sell or use
a cancelled stamp or remove the cancellation marks; postal employees,
moreover, are prohibited from making false returns to increase their
compensation, from unlawfully collecting postage, from failing to
account for postage or to cancel stamps, and from issuing a money order
without payment.
There are also, as I have indicated, a number of laws denying the use
of the mails for the transmission of obscene or libellous writings,
lottery tickets and advertisements, fraudulent matter, poisons,
intoxicating liquors, explosives and similar articles which come under
the ban of the police power. Furthermore, the complexity of political
life and more numerous administrative problems in the service, have
given rise to a separate class of offences; thus it is criminal for a
member of Congress to be interested in a public contract, or a postal
employee in a mail contract; or for an employee to make or receive a
political contribution. There is, finally, the so-called “newspaper
publicity law,” the concluding paragraph of which compels, under
penalty of a fine, the marking as an advertisement of all reading
matter for the publication of which a valuable consideration is
received.[106]
Marshall’s _dictum_ in McCulloch v. Maryland has remained unquestioned;
it has never been doubted that Congress has the power to punish
offences against the mails themselves, or neglect of duty by postal
employees. The constitutionality of such legislation has never been
attacked; the courts have only been called upon to decide technical
points. For example, the word “rob” is used in its common law sense;
jeopardy “means a well-grounded apprehension of danger to life,
in case of refusal or resistance”; pistols are dangerous weapons
within the meaning of the law; and “all persons present at the
commission of a crime, consenting thereto, aiding, assisting, or
abetting therein, or in doing any act which is a constituent of the
offence, are principals.”[107] The detention of mail by one employed
in the postoffice, refers to a letter or packet before it reaches
its destination; the taking must be clandestine and the intent
criminal.[108] An indictment for advising a carrier to rob the mail
must aver that the offence has been committed;[109] a sword in the
hand, although not drawn, is a dangerous weapon; a pistol is presumed
to be charged.[110] These are some of the questions that the courts
have been called upon to determine.
Nor has there been any dispute as to the power of Congress to establish
a monopoly by forbidding private postal enterprises.[111] As was
pointed out in an early case, “No government has ever organized a
system of posts without securing to itself, to some extent, a monopoly
of the carriage of letters and mailable packets. The policy of such an
exclusive system is a subject of legislative, not of judicial inquiry.
But the monopoly of the government is an optional, not an essential
part of its postal system. The mere existence of a postal department
of the government is not an establishment of the monopoly.”[112] Thus
questions have arisen as to the extent and scope of the original
provision and the amendments that have been made to it.
In 1834, for example, New Orleans citizens complained of slow mails,
and proposed a plan of forming a private association for a daily
express line to New York. But the project being referred to Chancellor
Kent for his opinion, he advised that “the objects of the association
cannot be carried into effect, in the way proposed, without violating
the postoffice law.”[113] In 1844 the Attorney General gave an
opinion that letters carried over mail routes by private carriers
could not be charged with postage, nor could the letters be detained;
the only available course was “to enforce the penalties to which
all unauthorized carriers of letters on the mail routes are by law
subjected.”[114]
As for the general interpretation of the statute, a federal circuit
court, in holding that it was not unlawful to carry an unstamped
letter of advice concerning money shipped by express, said: “These
provisions of the postoffice law, being in derogation of common right,
must be construed strictly, and in the absence of clear and explicit
language, forbidding the carriage of a letter, under the circumstances
indicated, we must hold that the right to do so is not interfered
with.”[115] The Supreme Court of the United States, however, had
previously declared that the act was undoubtedly a revenue law,[116]
although “not drawn with all the precision and explicitness desirable
in penal legislation.” And the rule of interpretation as laid down by
the Department of Justice was that the acts “are not subjected to the
narrow rules formerly applied in the construction of penal statutes....
In our courts, such acts receive the same construction that would be
put upon any other remedial legislation; that is, a fair, sensible,
practical interpretation, without reference to any merely technical
rule in favor of the accused.”[117]
The question arose in 1858 as to the legality of carrying letters
to and from the postoffice in a town where a public carrier had not
been appointed. The attorney general was of the opinion that the act
forbade this. “A person,” he said, “who intends to make the carrying
of letters his regular business, or part of his business, and to do
it periodically for hire, in opposition to the public carrier, is
legally incapable of receiving authority to take letters out of the
postoffice for that purpose.”[118] But when the question went to the
courts, a contrary position was taken. The Act of March 3, 1851[119]
authorized the postmaster general “to establish postroutes within the
cities or towns.” The court held that the word “postroutes” was not
synonymous with “postroads” used in that portion of the act of 1827
which made criminal attempts to compete with the federal government in
carrying the mail. Hence private letter carriers violated no law. This
decision,[120] however, was overruled when Congress extended[121] the
provisions of the Act of 1827 to all postroutes already, or thereafter
established, and in 1872[122] declared letter carrier routes within
cities “postroads.”[123]
Thus when an express company had a number of messengers to collect
letters daily from certain customers who paid with private stamps,
previously sold, the letters being taken to an office, sorted, and
dispatched to the addressees, the court held that these deliveries
could not be deemed “by messenger employed for the particular occasion
only,” but were deliveries “by regular trips and at stated periods,”
and the defendant was therefore liable.[124]
There has always been the exception that the carrier is permitted to
transport, otherwise than in the mail, letters or packets relating
“to some part of the cargo of such steamboat or other vessel, _to the
current business of the carrier_, or to some article” carried at the
same time.[125] Under this inhibition it is not lawful for a railroad
company to carry letters from one connecting line to another line, when
the letters relate to through business. The letters must be sent by, or
addressed to, the carrying company.[126] But in 1912 Attorney General
Wickersham decided that a railroad might carry over its lines, not in
the mail, letters written by the secretary of a relief association
(which was composed of the employees of the railroad) to the railroad
company, but not letters from the officers of the association to its
members.[127]
In 1915 the Supreme Court was called upon to construe the statute and
held within the “current business” exception “letters of a telegraph
superintendent, jointly appointed and paid by a railway company, and a
telegraph company, which were written to a railway station agent and
telegraph operator with the purpose of promoting the efficient and
successful operation of the telegraph business in the success of which
the railway company, under the contract with the telegraph company, has
a financial interest.” The Court refused, however, to consider whether
the statute is “penal or remedial, or whether it is to have a strict
or a liberal interpretation.”[128]
Another class of offences has arisen out of the section providing
punishment for “whoever shall knowingly and wilfully obstruct or retard
the passage of the mail,” or any conveyance by which it is being
carried. Wide extension of federal authority and effective federal
supremacy have been enforced under this provision, it having been held
that a defendant toll gate keeper cannot plead the justification of a
state law for stopping a carrier of the mail.[129] It has been decided,
also, that mail matter in the postoffice, ready for delivery, is
“obstructed” within the meaning of the statute by an unprovoked assault
on the postmaster. “The law presumes that the defendant intended by his
act the result which followed and the offense is complete.” An act, if
unlawful, resulting in an obstruction, is _per se_ done knowingly and
wilfully.[130]
Preventing a mail train from running as made up, even though one is
willing that the mail car shall go on, is an obstruction within the
meaning of the statute,[131] and where the regular passenger trains of
a railroad company have been selected as the ones to carry the mail,
the failure of the railroad to run other trains for that purpose is
not necessarily unlawful.[132] It is no defense, however, that the
obstruction was effected merely by leaving the employment, “where the
motive of quitting was to retard the mails, and had nothing to do with
the terms of employment.”[133]
These doctrines were given their widest scope in the Debs cases. It
was held that an indictment for obstructing the mails need not set out
that the act was done feloniously, since the crime was not a felony at
the common law; nor, furthermore, is it necessary to show knowledge
that the mails would be interfered with. “The laws make all railways
postroutes of the United States,” said the court, “and it is within the
range of everyone’s knowledge that a large proportion of the passenger
trains on these roads carry the mails.” Finally where the indictment
is for conspiracy to obstruct the mails, and overt acts in pursuance
thereof, “it is not restricted to a single overt act, since the gist of
the offense is conspiracy, which is a single offense.”[134]
The authority of Congress may, moreover, be enforced otherwise than by
prosecution for violations of this provision. “The entire strength of
the nation,” said the Supreme Court, “may be used to enforce in any
part of the land the full and free exercise of all national powers
and the security of all rights entrusted by the Constitution to its
care. The strong arm of the national government may be put forth to
brush away all obstructions to the freedom of interstate commerce or
the transportation of the mails. If the emergency arises the army of
the Nation, and all its militia, are at the service of the Nation to
compel obedience to its laws.” And the Supreme Court went on to declare
that “it is equally within its [the federal government’s] competency
to appeal to the civil courts for an inquiry and determination as
to the existence and character of any alleged obstructions, and if
such are found to exist, or threaten to occur, to invoke the powers
of those courts to remove or restrain such obstructions; that the
jurisdiction of the courts to interfere in such matters by injunction
is one recognized from ancient times and by indubitable authority; ...
that the proceeding by injunction is of a civil character and may be
enforced by proceedings in contempt; that such proceedings are not in
execution of the criminal laws of the land; that the penalty for a
violation of the injunction is no substitute for and no defence to a
prosecution for any criminal offences committed in the course of such
violation.”[135]
When we turn, however, to the power of Congress to exclude from the
mails, a different problem is presented. As has been pointed out,
early in the history of the postoffice, mail matter was classified
according to its character and different rates of postage were charged.
In 1799 the Postmaster General sent a letter to Congress complaining
of “large and inconvenient packages” and the Act of 1810 provided that
“no postmaster shall be obliged to receive, to be conveyed by mail,
any packet which shall weigh more than three pounds.”[136] Congress,
therefore, very early exercised the right of determining what articles
should be mailable and the conditions upon which they should be carried.
These exclusions were made to protect the mails. Objection was made
to the “inconvenient packages” on the ground that the transit was
retarded and smaller articles were injured. Such restrictions have
been maintained, the postoffice regulations now prescribing the
limits, both of weight and size. Congress has, moreover, on the same
ground, conditionally excluded a variety of articles, such as poisons,
explosives, inflammable materials, infernal machines, disease germs,
and all compositions liable to hurt anyone or injure the mails. It
is provided, however, that the postmaster general “may permit the
transmission in the mails under such rules and regulations as he shall
prescribe as to preparation and packing” of any of these articles,
“not outwardly or of their own force dangerous or injurious to life,
health and property.” Intoxicating liquors are absolutely excluded.
Any violations of the statutory provisions or of regulations made by
the postmaster general in pursuance of the authority given him, are
punishable by fine and imprisonment.[137]
The absolute exclusion of intoxicants, however, cannot be justified
upon the same principles as the conditional exclusions, since the
danger to the mails can only arise from the fact that they are liquids.
This distinction leads naturally to another class of articles which
are denied postal facilities on account of the effect they will have
on recipients. In this class is all printed or written matter which
is obscene, libellous and indecent, or which relates to lotteries and
fraudulent schemes.[138]
The first inhibition was made by Congress in the Act of March 3, 1865,
and by the Act of June 8, 1872, codifying previous laws and organizing
the postoffice on its present basis, the use of the mails was denied
to obscene matter, cards “upon which scurrilous epithets may have
been written or printed, or disloyal devices printed or engraved” and
“letters or circulars concerning illegal lotteries.”[139] It has since
been made criminal to take obscene or scurrilous matter from the mails
for purposes of circulation.[140]
Before the Supreme Court of the United States, the power of Congress
to exclude obscene and indecent matter from the mails[141] has never
been seriously questioned, and the points presented for determination,
largely to the lower federal courts, have not been as to the
constitutional authority of Congress.[142] In 1890, the Supreme Court
held that under the Act of July 12, 1876 it was not an offence to
deposit in the mails an obscene letter, enclosed in an envelope, and
refused to consider the amendment made in 1888 which had extended the
inhibition to sealed matter, closed to inspection.[143] But in 1895,
the Court determined that while the possession of obscene pictures is
not forbidden, it is an offence to deposit in the mails a letter, not
in itself objectionable, but conveying information as to where, and of
whom, such pictures could be obtained.[144] And the next year the Court
refused to accept the defence that the obscene matter was mailed in
reply to decoy letters by a government detective.[145]
It was held, moreover, that “the words ‘obscene,’ ‘lewd’ and
‘lascivious,’ as used in the statute, signify that form of immorality
which has relation to sexual impurity, and have the same meaning
as is given them at common law in prosecutions for obscene libel.
As the statute is highly penal, it should not be held to embrace
language unless it is fairly within its letter and spirit.”[146] The
penal code of 1909 extended the language to exclude “every filthy”
book, pamphlet, picture or letter, and this in effect overruled the
Swearingen case.[147]
There have been questions, also, as to the requirements for a valid
indictment, which, it has been held, need not set out the objectionable
matter, but must inform the accused of the nature of the charge
against him.[148] The courts have varied as to whether the test of
obscenity is that laid down by Lord Cockburn: Is the tendency of the
matter “to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort
would fall”?[149] or the dictionary meaning as “offensive to chastity,
decency or delicacy.” The question as to what is obscene, however, is
for the jury to determine.[150]
Congress has also denied postal facilities to “all matter otherwise
mailable by law, upon the envelope or outside cover or wrapper of
which, or any postal card upon which any delineations, epithets, terms,
or language of an indecent, lewd ... libelous, scurrilous, defamatory,
or threatening character, or calculated by the terms or manner or style
of display and obviously intended to reflect injuriously upon the
character or conduct of another, may be written or printed or otherwise
impressed or apparent.” This prohibition has been extended to include
a postal card demanding the payment of a debt and stating that “if
it is not paid at once we shall place the same with our lawyer for
collection.”[151]
It has been held, however, that “outside cover or wrapper” does
not include the outside sheet of a newspaper and thus the postal
authorities are unable to exclude periodical publications on the ground
that they contain scurrilous or defamatory matter.[152] From time to
time bills have been introduced in Congress to authorize the postmaster
general to exclude from the second-class privilege publications, as
such, single issues of which are found to contain such non-mailable
matter; but no favorable action has ever been taken by Congress on
any of these bills. An effort has also been made to deny all postal
facilities in such cases.[153]
Vigorous objection has been made to the validity of laws excluding
obscene matter, but the arguments have in no case any authoritative
sponsorship. One writer, for example, urges that “under the pretext of
regulating the mails,” Congress controls “the psycho-sexual condition
of the postal patrons.” “The statute,” he goes on to say, “furnishes
no standard or test by which to differentiate what book is obscene
from that which is not.”[154] Such a contention, so far as it is one
of _constitutional weakness_ in Congress is plainly invalid. Immoral
libels are an offence at the common law, “not because it is either the
duty or province of the law to promote religion or morality by any
direct means or punishments, but because the line which must be drawn
is between what is and is not the average tone of morality which each
person is entitled to expect at the hands of his neighbor as the basis
of their mutual dealings.”[155] The standard to determine what is
obscene is the same as that which has prevailed at the common law.
The right of individuals to use the mails is not an absolute one;
the legislative department of the government may impose reasonable
restrictions on its exercise. It may say that a public convenience is
not to be used to injure the morals of the citizens and may exclude
such injurious matter, not with the view of making immorality criminal,
but simply in order that the circulation may not be encouraged by the
government. And to make this denial of facilities effective, Congress
may punish violations. The grant of the postal power (to borrow the
language used by the Supreme Court in a commerce case) “is complete in
itself,” and “Congress, as an incident to it, may adopt not only means
necessary but convenient to its exercise, and the means may have the
quality of police regulations.” The right to use the mails is “given
for beneficial exercise,” and may be denied when it “is attempted to be
perverted to and justify baneful existence.”[156]
With regard to lotteries, however, the case is not so clear. The law
declared that “no letter or circular concerning [illegal] lotteries,
so-called gift concerts, or other similar enterprises, offering prizes,
or concerning schemes devised and intended to deceive and defraud the
public, for the purpose of obtaining money under false pretenses,
shall be carried in the mail,” and made violation criminal.[157] In
1876 the word “illegal” was stricken out, so that letters or circulars
concerning all lotteries were prohibited,[158] and in 1890 the law was
further amended so as to include lottery advertisements in newspapers
and to permit postmasters to withhold suspected mail.[159] Trial of
offenders may take place either in the district where the letter was
mailed, or that to which it was addressed.[160]
The Senate Committee in charge of the amendments proposed in 1890,
reported the bill to be based “on the conceded power of the government
to determine what character of matter may be sent through the mails;
and its purpose is to protect the general welfare and morality of the
people against the pernicious effects of lotteries.”[161] For authority
the committee relied upon the case of Phalen v. Virginia, in which the
Supreme Court said:
“The suppression of nuisances injurious to public health or morality
is among the most important duties of government. Experience has shown
that the common forms of gambling are comparatively innocuous when
placed in contrast with the widespread pestilence of lotteries. The
former are confined to a few persons and places, but the latter infests
the whole community: it enters every dwelling; it reaches every class;
it preys upon the hard earnings of the poor; it plunders the ignorant
and simple.” At common law, the committee argued, the king could not
sanction a nuisance; by parity of reasoning a nuisance may be denied
governmental encouragement.[162]
All of the anti-lottery legislation, enacted by Congress, has been
sustained by the Supreme Court of the United States, although, I think,
the reasoning might well have been more cogent. In the first case
arising under the earlier legislation, the Court declared:
“The validity of legislation prescribing what should be carried, and
its weight and form and the charges to which it should be subjected,
has never been questioned.... The power possessed by Congress embraces
the regulation of the entire postal system of the country. The right
to designate what shall be carried necessarily involves the right to
determine what shall be excluded.”[163] And in a later case, under the
act of 1890, the freedom of the press also being at issue, the Court
said:
“The states before the Union was formed could establish postoffices and
postroads and in doing so could bring into play the police power in the
protection of their citizens from the use of the means so provided for
purposes supposed to exert a demoralizing influence upon the people.
When the power to establish postoffices and postroads was surrendered
to the Congress it was as a complete power, and the grant carried
with it the right to exercise all the powers which made that power
effective. It is not necessary that Congress should have the power to
deal with crime and immorality within the states in order to maintain
that it possesses the power to forbid the use of the mails in aid of
the perpetration of crime and immorality.”[164]
Counsel for the petitioners in this case urged with considerable force
that there was a valid distinction between obscene or indecent matter
and lottery tickets and advertisements, but to this the Court replied:
“The argument that there is a distinction between _mala prohibita_ and
_mala in se_, and that Congress might forbid the use of the mails in
promotion of such acts as are universally regarded as _mala in se_,
including all such crimes as murder, arson, burglary, etc., and the
offence of circulating obscene books and papers, but cannot do so in
respect of other matters which it might regard as criminal or immoral,
but which it has no power itself to prohibit, involves a concession
which is fatal to the contention of the petitioners, since it would
be for Congress to determine what are within and what are without the
rule; but we think there is no room for such a distinction here, and
that it must be left to Congress in the exercise of a sound discretion
to determine in what manner it will exercise the power which it
undoubtedly possesses.”
Special exception is taken by Mr. Hannis Taylor to the doctrines of
the Rapier case. He says: “The act against the circulation of immoral
literature, which was not drawn in a paroxysm of excitement, exhausts
the entire constitutional authority over the intellectual contents of
documents passing through the mails that Congress can exercise.” And
referring to the exclusion of lottery tickets and advertisements: “This
new born heresy--created to meet a special emergency--will be utterly
repudiated by the American people the moment when the despotic and
irresponsible power over opinion with which the fiat of the Supreme
Court has armed Congress, is applied, as it surely will be, to some
subject which will arouse and quicken the public conscience.”[165]
As yet, however, there has been manifested no disposition to repeal
any of the lottery legislation. Congress has, in fact, made further
exclusions, with slight popular protest. The act of July 31, 1912,
excludes from interstate commerce, from the mails, and from importation
into the United States, “any film or other pictorial representation
or encounter of pugilists, under whatever name, which is designed to
be used or may be used for purposes of public exhibition.”[166] This,
probably, is the most advanced action yet taken by Congress.
It should be noticed, however, in concluding this review, that all
articles which Congress has thus far excluded from the mails have been
inherently different from the articles which may be transmitted, in
that they may have a harmful effect on other mail or on recipients.
Explosives, liquids, infernal machines, intoxicating liquors,--all are
in their nature dangerous to the mail or to the addressees. Obscene
literature and lottery tickets are proper subjects for denunciation
by the government and Congress may attempt to minimize their evil by
denying them postal facilities. It may be said, therefore, that all
prohibitory legislation has had the character of police regulations;
each exclusion, when assailed, has been justified on the facts of the
particular case, and the Supreme Court has never gone so far as has
a lower federal tribunal in declaring that, “Congress has exclusive
jurisdiction over the mails and may prohibit the use of the mails for
the transmission of any article. Any article, of any description,
whether harmless or not, may, therefore, be declared contraband in the
mail by act of Congress and its deposit there made a crime.”[167]
_Fraud Orders._--The denial of postal privileges when they are used
to defraud may be justified upon the same grounds as the exclusion of
obscene matter and lottery tickets; Congress has authority to make the
use of the mails subject to police regulations. But it is provided
that “the postmaster general may, upon evidence satisfactory to him
that any person or company is engaged in conducting any lottery”[168]
or fraudulent scheme, “instruct postmasters at any postoffice at which
registered letters arrive directed to any such person or company ... to
return all such registered letters to the postmaster at the office at
which they were originally mailed, with the word ‘Fraudulent’ plainly
written or stamped upon the outside thereof” and they may be returned
to the writers under such regulations as the postmaster general may
prescribe. But under this section there is no authority to open any
sealed letter.[169]
The constitutionality of these provisions has been fully established
by the Supreme Court of the United States, which has held that the
postal system is not “a necessary part of the civil government in the
same sense in which the protection of life, liberty and property, the
defense of the government against insurrection, and foreign invasion
and the administration of public justice are; but it is a public
function, assumed and established by Congress for the general welfare.”
Thus it was constitutional to exclude such fraudulent matter.
As to other objections, the Court declared that due process of law was
not denied when an executive official was given authority to control
the disposition of property; “nor do we think the law unconstitutional
because the postmaster general may seize and detain all letters, which
may include letters of a purely personal or domestic character, and
having no connection whatever with the prohibited enterprise.” The
fact that the postmaster general may not open letters not addressed
to himself makes such a provision necessary in order that the law
may be effective. Finally, said the Court, “the objection that the
postmaster general is authorized by statute to confiscate the money,
or the representative of the money, of the addressee, is based upon
the hypothesis that the money or other article of value contained in a
registered letter becomes the property of the addressee as soon as the
letter is deposited in the postoffice.” But the postmaster general, in
seizing the letter, does not confiscate it, or change title thereto;
he merely denies the use of the facilities of the postoffice. It would
be proper for Congress to empower the postmaster general, in the first
instance, to refuse to receive the letter at all, if its objectionable
character is known to him.[170]
The sole remaining question is therefore as to the conclusiveness of
administrative determinations and it appears that in the postoffice
cases the courts have exercised their powers of review further than
in any others coming up from different executive departments.[171]
The Supreme Court has summarized the rule as follows: “That where the
decision of questions of fact is committed by Congress to the judgment
and discretion of the head of a department, his decision thereon is
conclusive; and that even upon mixed questions of law and fact, or of
law alone, his action will carry with it a strong presumption of its
correctness and the courts will not ordinarily review it, although
they may have the power and will occasionally exercise the right of so
doing.”[172]
But it is necessary that the facts upon which the administrative
decision is based be not such that the application of the statute
will be a clear mistake of law. Thus, in American Magnetic School of
Healing v. McAnnulty, the postmaster general in effect made a fraud
order depend on his opinion as to the efficacy of the complainant’s
method of healing by encouraging the proper use of the mind to correct
physical ailments. The court ruled that under no construction was there
evidence sufficient to show fraud. “To authorize the interference of
the postmaster general,” said the decision, “the facts stated must,
in some aspect, be sufficient to permit him, under the statutes, to
make the order.”[173] Or, expressed differently, if it is “legally
impossible” under any interpretation of the facts, “to hold that the
complaining party was engaged in obtaining money through the mails by
false or fraudulent representations,” the courts will intervene.[174]
The general rule may, therefore, be stated as follows: Judicial review
will be granted only in those cases where it appears that the order is
without legal authority; exercise of discretion will not be reviewed
unless, upon any construction of the facts, the order is clearly
wrong, and even upon questions of law alone, it will carry a strong
presumption of correctness.
A number of proposals have been made and bills introduced in Congress
to provide for a judicial review of the postmaster general’s decisions.
Congressman Crumpacker, for instance, argued “that in all departments
of government there is no instance where substantial rights are taken
from a citizen upon confidential reports without a legal right to be
heard and to see and examine the evidence that is submitted against
him, aside from the fraud order and practice in the postoffice
department.”[175] He urged that the law should be changed and a copy
of the order served on the concern suspected of fraudulent practices.
This order should not become operative for fifteen days, except to the
extent of holding the mail undelivered in the postoffice. The aggrieved
party could file a bill in the circuit court with a bond of $500 and
a summary trial at law would be held upon the issue, which the court
should formulate upon the facts involved. Appeal would lie and pending
final action the mail would be held in the postoffice or disposed of by
order of the court. Another bill authorized a review after the orders
had been issued.
Vigorous objection to such changes in the law was made by the
postoffice authorities. A memorandum filed by the assistant attorney
general for the department[176] declared that the prime object of
the regulations was to secure summary action. “The value of the law
depends upon the promptness with which schemes to defraud may be
denied the use of the mails to further the swindle. If action is
delayed any considerable time,--as would necessarily be the case in a
judicial proceeding,--the scheme will consummate its fraud before the
interference occurs.” If Mr. Crumpacker’s bill became law, the only
effectual action would be criminal prosecution, and this is always
difficult since the victimized parties live at a distance, and it is
hard to get evidence to offer at the trial.
In practice, the memorandum explained, investigations are made by
inspectors of cases where fraudulent practices are alleged, and
reports sent to the department. If a _prima facie_ case of fraud is
established, the person or concern involved is notified and given
an opportunity to appear before the assistant attorney general for
the postoffice department; after the hearing a report is made to the
postmaster general who takes final action. But such a hearing is not
required by the statute.[177]
The codification of postal laws presented to Congress in 1908, provided
for the creation of a Commission of Postal Appeals, to consist of three
members, one of whom must be a lawyer, appointed by the President.
One of its duties would be to “pass upon the issuance of fraud orders
against persons alleged to be conducting lotteries, gift enterprises,
or schemes to defraud.” Cases would be submitted by the assistant
attorney general upon his being satisfied that the evidence was legally
sufficient to justify the order which the Commission would issue or
refuse after a hearing; provisional action, however, could be taken,
and pending final determination, the mail matter could be held in the
postoffice.[178]
CHAPTER III
THE POWER OF CONGRESS TO ESTABLISH POSTROADS
_Legislative Action._--Apart from the postoffice, problems of road
construction and internal improvements, by the necessities of
development, almost immediately confronted the new nation, which
scanned the delegated powers in the Federal Constitution, and not
finding any specific authorization of congressional action, asserted
the right upon several clauses, among them being the one to establish
postroads. By 1793 there were only one hundred and ninety-five
postoffices throughout the country[179] and communication was in a
deplorable condition, what roads there were being little more than
paths and quite impassable for wheeled vehicles. Yet communication was
of the utmost importance, and especially was this true in respect to
the West, it being thought that commercial and political development,
if not actual retention, was impossible without easier means of access.
Some road construction had been accomplished by private initiative
with state aid, but the problem was not really attacked, and when
in 1792 Congress established a postroute between Richmond, Va., and
Danville, Ky., and later one between Philadelphia, Pittsburgh, and
Louisville,[180] the West became jealous of the facilities accorded
the East. This feeling was encouraged by the Atlantic States being
permitted by Congress to levy tonnage duties in order to effect the
improvement of rivers and harbors.[181] Appropriations had also been
made by Congress for lighthouses, etc., and soon the demands of the
Western States were too strong to be resisted. In 1806 Congress was
forced to take definite action.[182]
The constitutional problem, however, had for some time engaged the
attention of the leading statesmen; all admitted the necessity for
federal aid, but the power of Congress was seriously questioned. In his
first annual address Washington urged the encouragement of “intercourse
between the distant parts of our country by a due attention to the
postoffice and postroads,”[183] and repeated this recommendation in
later addresses.[184] Chief Justice Jay had in 1790 given Washington
his opinion, certainly entitled to great weight, that “the Congress
have power to establish postroads. This would be nugatory unless it
implied a power to repair these roads themselves, or compel others to
do it. The former seems to be the more natural construction. Possibly
the turnpike plan might gradually and usefully be introduced.”[185]
But there were also many who held to a stricter construction of the
Constitution. Jefferson was doubtful. Writing to Madison in 1796
he asked: “Does the power to _establish_ postroads given you by
Congress, mean that you shall _make_ the roads, or only _select_
from those already made those on which there shall be a post?” The
one construction would give Congress enormous powers; the other, if
inadequate, could be referred to the states for action.[186]
The question of federal power was first definitely raised in 1806 when
the demands of the Western States became irresistible and Congress
began the construction of the Cumberland Road, the famous highway which
was to figure in the economic and political history of the United
States for the next half century, and to arouse acute discussion as to
the meaning of the postal clause.[187] Ohio was admitted as a state
in 1802 and the opportunity was seized to make a mutually advantageous
arrangement by which the United States would retain the same rights as
to the public domain which it possessed while Ohio was yet a territory
(control of lands as yet unpaid-for and suspension of state taxes), and
on the other hand, as a _quid pro quo_, a percentage of the proceeds
derived from the sale of certain of the lands, should be applied to
defray the cost of road construction under the auspices of the general
government. Such an arrangement was first proposed by Gallatin[188] who
urged “that one tenth part of the net proceeds of the lands hereafter
sold by Congress shall, after deducting all expenses incident to the
same, be applied towards laying out and making turnpike roads ... under
the authority of Congress, with the consent of the several states
through which the same shall pass.”[189]
The next action came three years later when Congress authorized the
President to appoint a commission to lay out the road;[190] consent
to the construction had already been given by the legislatures of
Maryland and Virginia, but not by that of Pennsylvania.[191] Maryland’s
authorization for the improvement of postroads within the state was
given in 1803 and contained a limitation to the effect that Congress
was not thereby given the power “to cut down or use the timber or
other material of any person or persons against his, her, or their
consent,”[192]--an explicit denial of the right of eminent domain in
connection with the postal power.
In January, 1807, Jefferson received the report of the commission
appointed to locate the road, but the President withheld either
acceptance or disapproval until he should receive “_full consent_
to a free choice of route through the whole distance.”[193] When
Pennsylvania acted, its legislature detailed the powers which the
United States might exercise, and stipulated that persons whose
property should be taken must be given compensation; but this was
sufficient for the “full consent” which Jefferson demanded before the
undertaking could be begun.
Even with these limitations congressional action as to postroads had
not been taken without some doubts as to its constitutionality; yet
the demands for federal aid were so great and the responses so meagre
that serious objection was not made. In spite of the fact that he had
sanctioned appropriations for the improvement of a canal in Louisiana
and a road from the Georgia frontier to New Orleans,[194] Jefferson
thought that the postal clause did not grant adequate power for the
construction of roads by Congress.[195] In his sixth annual message
(after the passage of the Cumberland Road bill) he urged that the
treasury’s surplus should be applied “to the great purposes of the
public education, roads, canals, and such other objects of public
improvement as it may be thought proper to add to the constitutional
enumeration of federal powers,” but supposed that a constitutional
amendment would be necessary.[196] Two years later the growing surplus
led him to return to the same theme. “Shall the revenue be reduced?” he
asked. “Or shall it rather be appropriated to the improvement of roads,
canals, rivers, education, and other great foundations of prosperity
and union, under the powers which Congress may already possess, or
such amendment of the Constitution as may be approved by the states.
While uncertain of the course of things the time may be advantageously
employed in obtaining the powers necessary for a system of improvement
should that be thought best.”[197]
It was not, however, until during Madison’s administration that the
question was to become an acute one. Under Washington and Adams there
had been no appropriations for roads; under Jefferson Congress had
given money for the Cumberland Road, for a route from the frontier of
Georgia to New Orleans and a canal in Louisiana.[198] But under Madison
eleven acts were passed by Congress[199] and these caused an exhaustive
and sometimes acrimonious discussion of the constitutional principles
involved, with the intervention of the President through admonitory
messages and one veto, on the day before he was to give up his office.
Madison’s opinion as to whether the Constitution had given Congress the
power to undertake the construction of roads seems not to have been
absolutely consistent. Writing in _The Federalist_, he had urged as one
of the advantages that the adoption of the Constitution would insure
the fact that “intercourse throughout the union will be facilitated
by new improvements. Roads will everywhere be shortened, and kept in
better order; accommodations for travellers will be multiplied and
meliorated;... The communication between the western and Atlantic
districts, and between different parts of each, will be rendered more
and more easy by those numerous canals with which the beneficence of
nature has intersected our country, and which art finds it so little
difficult to connect and complete.”[200]
On February 5, 1796, in the House, Madison offered a resolution
authorizing the President to have made a survey of the postroad from
Maine to Georgia, the expense being borne by the United States.[201]
Two good effects, said Madison, would accrue; “the shortest route from
one place to another would be determined upon, and persons, having a
certainty of the stability of the roads, would not hesitate to make
improvements on them.” It was to be the “commencement of an extensive
work”; and during his administration Madison approved acts which
appropriated over $500,000, most of it for the Cumberland Road.[202]
There had been, it is true, an intimation of a changed attitude when,
in his seventh annual message (December 5, 1815), although strongly
recommending the construction of roads and canals under national
authority, he called it “a happy reflection that any defect of
constitutional authority which may be encountered can be supplied in a
mode which the Constitution itself has providently pointed out.”[203]
A year later he asked Congress to exercise its existing powers, and,
if necessary, to resort “to the prescribed mode of enlarging them, in
order to effectuate a comprehensive system of roads and canals, such as
will have the effect of drawing more closely together every part of our
country.”[204]
Madison’s decisive stand, however, was to be taken on the so-called
“bonus bill,” the purpose of which was to provide a permanent fund for
road construction. In the famous report which Gallatin had prepared
for the Senate (April 6, 1808), he had denied any right of eminent
domain inhering in the United States and had declared that no road or
canal could be opened without the consent of the states concerned. This
fact, Gallatin argued, necessarily controlled the manner of expenditure
(in the absence of constitutional amendment). He suggested two
expedients: congressional undertakings with the consent of the states,
or subscriptions by Congress to the shares of companies incorporated
for the purpose of building highways.[205] Concerning Gallatin’s second
alternative, no action was taken for two years. In 1810, however, a
Senate committee reported favorably a blanket bill which would make the
government owner of one half the stock in any corporation formed to
carry out the projects recommended by Gallatin in his report.[206] But
the theory of the “bonus bill” was radically different.
It was reported in the House by a special committee of which Calhoun
was chairman, and set aside the $1,500,000 bonus which was to be paid
by the United States Bank for its charter, together with the dividend
arising from the stock held by the government; there would thus be
provided a permanent fund for the construction of roads and canals.
The chief argument in support of the bill was made by Calhoun.[207] He
expressed no opinion as to the validity of the objection that Congress
had not the power to cut a road through a state without its consent.
The proposed bill did not raise that question. But, said Calhoun, “the
Constitution gives to Congress the power to establish postoffices
and postroads. I know that the interpretation usually given to these
words confines our powers to that of designating only the postroads;
but it seems to me that the word ‘establish’ comprehends something
more,” it would seem to give Congress the right to construct. Calhoun’s
argument is not a closely reasoned one and does not carry conviction
in all respects; nevertheless, his main point upon which he lays chief
weight,--that the appropriation of money by Congress is not confined to
the furtherance of those powers enumerated in the Constitution,--was
well taken.[208]
The bill was passed by Congress,[209] not, however, without many doubts
being expressed as to its constitutionality,[210] and went to President
Madison at the very close of his administration. Madison did not resort
to a pocket veto and on March 3, 1817, sent a message to Congress
giving the grounds for his objections to the measure. He held that
the act could not be justified under the commerce or general welfare
clauses, but made no use of the postal power as a possible, if not
adequate source of authority. He said:
“If a general power to construct roads and canals, and to improve the
navigation of water courses, with the train of powers incident thereto,
be not possessed by Congress, the assent of the states in the mode
provided in the bill cannot confer the power. The only cases in which
the consent and cession of particular states can extend the power of
Congress are those specified and provided for in the Constitution.”[211]
In this message Madison did not clearly suggest a distinction between
the simple power to appropriate, to appropriate and construct, with
the consent of the states, and to construct against the will of local
jurisdictions. Before reaching the conclusion quoted above, he had
used this ambiguous language: “A restriction of the power ‘to provide
for the common defense and general welfare’ to cases which are to be
provided for by the expenditure of money would still leave within the
legislative power of Congress all the great and important measures of
government, money being the ordinary and necessary means of carrying
them into execution.”[212] Madison declared later that his veto
contemplated the appropriation as well as construction; yet during his
tenure he sanctioned measures providing funds for various roads.[213]
This distinction which Calhoun pointed out, and concerning which, in
his message at least, Madison was vague, was to be stressed by Monroe
and by Congress in the exhaustive debates upon the nature and extent of
the power that the federal government possessed.[214] Monroe did not
delay in making known his attitude and went directly to the point in
his first annual message when he said:
“Disregarding early impressions, I have bestowed on the subject all the
deliberation which its great importance and a just sense of my duty
required, and the result is, a settled conviction, in my mind, that
Congress do not possess the right.... In communicating this result, I
cannot resist the obligation which I feel, to suggest to Congress the
propriety of recommending to the states the adoption of an amendment to
the Constitution, which shall give Congress the right in question.”[215]
This portion of President Monroe’s message was referred to a special
committee in the House of Representatives which reported on December
15, 1817, in an able document.[216] The problem, said the committee,
involved “a great constitutional question on the one hand,” and
was “intimately connected on the other, with the improvement, the
prosperity, the union, and the happiness of the United States.” It was
argued, in brief, that Congress had the power: “1. To lay out, improve,
and construct postroads through the several states, with the assent of
the respective states. 2. To open, construct, and improve military
roads through the several states, with the assent of the respective
states. 3. To cut canals through the several states, with their
assent....”
Such powers were not based, it was contended, on a liberal construction
of the Constitution, nor were they dangerous in tendency and capable
of working an injury to the states, for there was no recognition of a
right of eminent domain or of congressional supremacy in respect to
jurisdiction. Considering specifically the extent of the postal power
the committee said:
“That Congress, with the assent of the states respectively, may
construct and improve their postroads, under the power ‘to establish
postoffices and postroads’ seems to be manifest both from the nature
of things and from analogous constructions of the Constitution. It has
been contended, indeed, that the word _establish_, in this clause of
the instrument, comprehends nothing more than a mere designation of
postroads. But if this be true, the important powers conferred on the
general government in relation to the postoffice, might be rendered
in a great measure inefficient and impracticable.... If the power to
establish confers only the authority to designate, Congress can have
no right either to keep a ferry over a deep and rapid river for the
transportation of the mails, or to compel the owners of a ferry to
perform that service; and yet our laws contain an act, acquiesced
in for more than twenty years, imposing penalties on ferrymen for
detaining the mail and on other persons for retarding or obstructing
its passage. It would be difficult to discover how this power of
imposing penalties can be supported, either as an original or accessory
power except upon principles of more liberal construction than those
now advanced....
“The authority which is conferred by the Constitution to make all laws
which shall be ‘necessary and proper’ for carrying into execution
the enumerated powers, is believed to vest in the general government
all the means which are essential to the complete enjoyment of the
privilege of ‘establishing postoffices and postroads!’ Even without
this clause of the Constitution the same principle would have to be
applied to its construction, since according to common understanding
the grant of a power implies a grant of whatever is necessary to its
enjoyment....
“It is indeed from the operation of these words ‘necessary and proper’
in the clause of the Constitution which grants accessory powers, that
the ‘assent of the respective states’ is conceived a prerequisite
to the improvement even of postroads. For, however ‘necessary’ such
improvements might be, it might be questioned how far an interference
with the state jurisdiction over its soil, against its will, might be
‘proper,’ Nor is this instance of an imperfect right in the general
government without an analogy in the Constitution; the power of
exercising jurisdiction over forts, magazines, arsenals, and dockyards,
depending upon previous purchase by the United States with the consent
of the states.
“Admitting then, that the Constitution confers only a right of way, and
that the rights of soil and jurisdiction remain exclusively with the
states respectively, yet there seems to be no sound objection to the
improvement of roads with their assent.”
In the long debate which followed this report upon the President’s
message, the opinions expressed veered between ultra-conservative
and ultra-liberal positions. A middle ground was taken by Clay,
whose speeches are perhaps the best on the subject.[217] He was a
stanch supporter of the committee’s report, contending “that the
power to construct postroads is expressly granted in the power to
establish postroads.” “If it be,” he said, “there is an end to the
controversy.... To show that the power is expressly granted, I might
safely appeal to the arguments already used to prove that the word
_establish_, in this case, can mean only one thing,--the right of
making.” According to Clay, “to establish justice” as used in the
preamble of the Constitution, did not compel Congress to adopt the
systems then existing. “Establishment means in the preamble, as in
other cases, construction, formation, creation.”
When it is considered that “under the old Articles of Confederation,
Congress had over the subject of postroads as much power as gentlemen
allow to the existing government, that it was the general scope
and spirit of the new Constitution to enlarge the powers of the
general government, and that, in fact, in this very clause, the
power to establish postroads is superadded to the power to establish
postoffices, which was alone possessed by the former government,” the
argument on this point is successfully maintained.
Clay contended that “it was certainly no objection to the power that
these roads might also be used for other purposes. It was rather a
recommendation that other objects, beneficial to the people, might be
thus obtained, though not within the words of the Constitution.” For
an illustration he pointed to the encouragement of manufactures under
the power to levy taxes. Postroads could be devoted to “other purposes
connected with the good of society.”[218] Construction completed, Clay
argued, Congress had a jurisdiction “concurrent with the states, over
the road, for the purpose of preserving it, but for no other purpose.
In regard to all matters occurring on the road, whether of crime,
or contract, etc., or any object of jurisdiction unconnected with
the preservation of the road, there remained to the states exclusive
jurisdiction.”[219]
At the conclusion of the debate several resolutions were offered and
voted upon, only one receiving a majority. It recited “that Congress
have power, under the Constitution, to appropriate money for the
construction of postroads, military and other roads, and of canals
and for the improvement of water courses.” In this matter Congress
sanctioned the distinction between appropriation and construction.
Three other resolutions were to the effect that Congress could build,
generally, post and military roads; roads and canals necessary “for
commerce between the states,” and canals for “military purposes.” These
avowals of power, although they stated slightly different propositions,
all intimated that the consent of the states would not be required,
since each contained a proviso that private property should not be
taken for public use without compensation,--a liberal attitude for this
period of constitutional interpretation.[220] All of the resolutions,
save the first, failed of passage by small majorities.
The consideration of Monroe’s message in the Senate was very favorable
to the President; there was little disposition to criticize him for
having announced his views prematurely,--possibly with the intention of
warning Congress,--and no attempt was made to ascertain directly the
Senate’s opinion on the constitutional powers of Congress. Indirectly,
however, the Senate asserted its opinion through passing on a proposed
amendment to the Constitution which was urged in response to Monroe’s
intimation that this was the proper method of dealing with the matter.
From time to time several proposed amendments to the Constitution had
been introduced, and these, unlike others advocated during “the same
period of conflict between the broad and strict constructionists,”[221]
aimed to increase the powers of Congress, and to take away the taint
of usurpation which, at least in the minds of many, was considered
as attaching to the road projects either under way or seriously
contemplated. Amendments empowering Congress to construct roads and
canals with the consent of the states were suggested in 1813 and 1814,
and on December 9, 1817, following the advice of Monroe’s message,
Senator Barbour introduced in the Senate such a resolution which made
state consent necessary and provided that the appropriations should
be distributed “in the ratio of representation which each state shall
have in the most numerous branch of the national legislature. But the
portion of any state may be applied to the purpose aforesaid in any
other state.” When the resolution was reported, it was indefinitely
postponed by a vote of 22 to 9.[222] This result showed that there was
slight chance of passing any general road construction bill over the
president’s veto, although some of the votes against the resolution
were cast on the ground that Congress already had the power.
But the advocates of road construction were not to be denied. In
compliance with a resolution, Calhoun, as secretary of war, submitted
to the House of Representatives on January 14, 1819, a comprehensive
report on roads and canals, the necessity for them, and a scheme
for construction. Calhoun, however, “thought it improper under the
resolution of the House to discuss the constitutional question.”[223]
The report was laid on the table[224] and although in January, 1822,
the House Committee favored surveys for canals from Boston south
along the Atlantic coast, and in the middle west, and a road from
Washington to New Orleans, nothing became law with the exception of
small appropriations for the Cumberland Road.[225] It was, however, an
act for the preservation and repair of this road, passed by the House
on April 29, 1822, and returned by the President on May 4, which caused
him to follow his veto message with a comprehensive statement of the
“Views of the President of the United States on the subject of internal
improvements,”[226] the most elaborate constitutional discussion ever
sent to the Capitol from the White House.
Monroe was of the opinion that Congress had the right to make
appropriations for roads, with the consent of the states through
which they were to pass, but that it did not have sovereign and
jurisdictional rights to construct roads or to repair and keep them
free from obstructions. This doctrine Von Holst calls a “quibble
on words,” but “it has become an established one that Congress may
appropriate money in aid of matters which the federal government is not
constitutionally able to administer and regulate,” and in this respect,
therefore, Monroe was correct.[227]
The advocates of construction and of efficient jurisdiction after the
roads had been made, derived the authority of Congress from several
clauses in the Constitution, among them the grant “to establish
postoffices and postroads.” To this clause, Monroe gave an exhaustive
treatment.
“What is the just import of these words, and the extent of the grant?”
he asked. “The word ‘establish’ is the ruling term; ‘postoffices and
postroads’ are the subjects, on which it acts. The question, therefore,
is, what power is granted by that word? The sense, in which our words
are commonly used, is that, in which they are to be understood in all
transactions between public bodies and individuals. The intention of
the parties is to prevail, and there is no better way of ascertaining
it, than by giving to the terms used their ordinary import.”
Among enlightened citizens, Monroe went on, there would be no
difference of opinion; “all of them would answer, that a power was
thereby given to Congress to fix on the towns, court-houses, and other
places, throughout our Union, at which there should be postoffices;
the routes by which the mails should be carried from one postoffice
to another, so as to diffuse intelligence as extensively, and to make
the institution as useful, as possible; to fix the postage to be paid
on every letter and packet thus carried to support the establishment;
and to protect the postoffices and mails from robbery, by punishing
those, who should commit the offence. The idea of a right to lay off
the roads of the United States, on a general scale of improvement; to
take the soil from the proprietor by force; to establish turnpikes and
tolls, and to punish offenders in the manner stated above, would never
occur to any such person. The use of the existing road, by the stage,
mail carrier, or postboy, in passing over it, as others do, is all that
would be thought of; the jurisdiction and soil remaining to the state,
with a right in the state, or those authorized by its legislature, to
change the road at pleasure.”
This interpretation, the message went on to declare, was supported by
the modification of the postal grant in the Articles of Confederation,
as it appeared in the Constitution. “Had it been intended to convey
a more enlarged power in the Constitution,” said Monroe, “than had
been granted in the Confederation, surely the same controlling term
[establish] would not have been used; or other words would have been
added, to show such intention, and to mark the extent, to which
the power should be carried.... It would be absurd to say, that,
by omitting from the Constitution any portion of the phraseology,
which was deemed important in the Confederation, the import of that
term was enlarged, and with it the powers of the Constitution, in a
proportional degree, beyond what they were in the Confederation.
The right to exact postage and to protect the postoffices and mails
from robbery, by punishing the offenders, may fairly be considered,
as incidents to the grant, since, without it, the object of the
grant might be defeated. Whatever is absolutely necessary to the
accomplishment of the object of the grant, though not specified, may
fairly be considered as included in it. Beyond this the doctrine
of incidental power cannot be carried.” Monroe then enters upon a
consideration of what the colonists and framers of the Constitution
understood to be comprehended in the postal power, and concludes:
“If the United States possessed the power contended for under this
grant, might they not, in adopting the roads of the individual states
for the carriage of the mail, as has been done, assume jurisdiction
over them, and preclude a right to interfere with or alter them?
Might they not establish turnpikes, and exercise all the other acts
of sovereignty, above stated, over such roads, necessary to protect
them from injury, and defray the expense of repairing them? Surely, if
the right exists, these consequences necessarily followed, as soon as
the road was established. The absurdity of such a pretension must be
apparent to all, who examine it. In this way, a large portion of the
territory of every state might be taken from it; for there is scarcely
a road in any state, which will not be used for the transportation of
the mail. A new field for legislation and internal government would
thus be opened.”[228]
While the President’s attitude stopped Congress from actually
constructing roads, frequent appropriations were granted to be applied
under the direction of the states. Perhaps the most important of these
was in the act passed in 1824 to have surveys made of such roads and
canals as in the opinion of the President were of value for military,
commercial and postal purposes.[229]
Conflict over the constitutional problem, and the distinction between
appropriation and construction, were, however, abandoned by John
Quincy Adams who was a stanch advocate of federal aid,[230] but the
discussion was revived by Jackson, who vetoed six bills,[231] the most
important of which provided for a government subscription of $150,000
to purchase stock in the Maysville, Washington, Paris and Lexington
Turnpike Company, a Kentucky corporation. The action of the President
did not come as a surprise for in his first annual message he had told
Congress that the mode of internal improvements, “hitherto adopted,
has by many of our fellow citizens been deprecated as an infraction of
the constitution, while by others it has been viewed as inexpedient.
All feel that it has been employed at the expense of harmony in the
legislative councils.”[232]
Furthermore, Jackson thoroughly disapproved of the government’s
becoming a minority stockholder in a semi-private enterprise which
would receive profits through the payment of tolls. He held it to
be not only “highly expedient, but indispensably necessary, that a
previous amendment of the Constitution, delegating the necessary
power and defining and restricting its exercise with reference to the
sovereignty of the states, should be made.”[233] Otherwise there would
be a continuance of congressional uncertainty as to the existence of
the power. He considered the general question in two aspects: (1)
as “to the power of making internal improvements within the limits
of a state, with the right of territorial jurisdiction, sufficient
at least for their preservation and use” and (2) as to the power of
“appropriating money in aid of such works when carried on by a state or
by a company in virtue of state authority, surrendering the claim of
jurisdiction.”[234] He believed Congress could appropriate directly for
_national_, not _local_, purposes; the other power he firmly denied.
After Jackson there were other vetoes of internal improvement bills,
but they were based largely upon the distinction between national and
local objects. Road construction, moreover, gave way to river and
harbor development, and there was little, if any, discussion of the
meaning of the postal clause. Congress asserted a broad power over
postroads designated by it, and there was little objection; on the
few occasions that the matter came before the courts, the power was
sustained. In 1862 Congress gave the President authority when in his
judgment the public safety required its exercise, to take possession
of all railroads and telegraphs and to place their employees under
military control, so that the lines would be “considered as a postroad
and a part of the military establishment of the United States, subject
to all the rules and restrictions imposed by the rules and articles of
war.”[235] Any interference with the exercise of this authority was
made a crime. Compensation to the railroad and telegraph companies was
to be fixed by three commissioners, subject to approval by Congress.
This authorization, however, was based upon the war, as well as on the
postal power, and when Congress came to charter railroads and bridge
companies, it based its right largely on the commerce clause, with the
postal and war grants as ancillary sources.[236]
Recent evidences of congressional action, based upon the postroads
clause, are to be seen in the good roads movement, and in 1912 Congress
appropriated five hundred thousand dollars for “improving the condition
of roads to be selected by them [the secretary of agriculture and the
postmaster general] over which rural delivery is or may hereafter be
established, such improvement to be for the purpose of ascertaining
the increase in the territory which could be served by each carrier as
a result of such improvement, the possible increase of the number of
delivery days in each year,” etc. But it is provided that the state in
which the improvements are to be made “shall furnish double the amount
of money for the improvement of the road or roads so selected.”[237]
The results of the scheme have not been very satisfactory,[238] but
proposals are made for other, and more extensive federal undertakings.
Finally it is possible, in some measure at least, to base upon the
postal power the Act of March 12, 1914, which authorizes “the president
of the United States to locate, construct and operate railroads in the
Territory of Alaska.”[239]
_Judicial Determinations._--The power of Congress to construct roads
and canals did not, in the early days of its assertion and denial,
come before the Supreme Court of the United States; in fact, the
question has never been directly passed upon by the Court, and
long before it was incidentally considered, largely in the cases
upholding the right of eminent domain and its delegation to railroad
corporations with federal charters, the constitutional problem, as
Madison said in rejecting the bank bill of 1814, was “precluded by
repeated recognitions, under varied circumstances, of the validity of
the exercise of a power to establish a bank by Congress, in acts of
the legislative, executive, and judicial branches of the government,
accompanied by indications in different modes of a concurrence of the
general will of the nation.”[240] Such a test, however, is by no means
adequate.
For a time the question of congressional power was acute, and its
existence was not acknowledged, even by some who cannot be called
strict constructionists. The opinions held by Congress and the
executive have already been reviewed; but Monroe’s elaborate veto
message on the “gate bill” gave the Supreme Court justices an
opportunity to express their views informally, for he sent a copy of
his paper to each member of the Court. In his reply Justice Johnson
intimated that the doctrine of McCulloch v. Maryland[241] committed the
Court to upholding a power in Congress to construct roads for military
and postal purposes; Marshall considered the question one “on which
many divide in opinion, but all will admit that your views are profound
and that you have thought much on the subject.” Story was noncommittal,
and thus one of the few attempts to get an informal expression of
opinion from the Supreme Court was a failure.[242]
It is difficult to see how, logically, there can be any doubt as to
a very wide authority in Congress. A fair interpretation of the word
“establish” comprehends “construction” or at least something more than
“designation”; otherwise it would have been futile for the Articles
of Confederation and the Constitution to give Congress powers under
which it has undertaken to “establish” navy hospitals, trading houses
with the Indians, inferior courts, rules of capture, and regulations
of trade. The second portion of the postal clause did not appear in
the Articles of Confederation, and the grant in the Constitution
was absolute, with no limitations as to state action. A restricted
interpretation, applied to the first part of the clause, as demanded
by consistency, would give Congress authority to provide postoffices,
but without mails, carriers, routes, secure transmission, or revenue.
That Congress in fact had the power to construct roads has been made
evident, I think, by the debates on the various measures that were
proposed.
But as has been seen in the legislation concerning the Cumberland Road,
the consent of the states was required before construction could be
started, and limitations were imposed on the federal power. So also, it
was at first maintained that Congress did not have the right to keep
the roads open, in repair, and to impose tolls for their use, whether
they had been constructed under national authority or had simply been
designated as mail routes. For example, the Act of March 26, 1804,
provided “that whenever it shall be made to appear to the satisfaction
of the postmaster general that any road established by this or any
former act, as a postroad, is obstructed by fences, gates or bars,
other than those lawfully used on turnpike roads, to collect their
toll, and not kept in good repair with proper bridges and ferries,
where the same may be necessary it shall be the duty of the postmaster
general to report the same to Congress, with such information as can be
obtained, to enable Congress to establish some other road, instead of
it, in the same main direction.”[243]
In 1812 Gallatin made a report to the President on the Cumberland Road
and referred to the necessity of levying tolls sufficient to keep
certain portions in repair; but this, he said, could be done “only
under the authority of the state of Maryland.”[244] The next year
the superintendent of the road reported to Gallatin that he expected
the Maryland legislature to pass a law, “authorizing the President
to receive toll, for the purpose of repairing the road, and likewise
against abuses which are common on all roads of the kind to prevent
which laws have been found necessary.”[245] Secretary Dallas was of the
same opinion, and in 1815 told the House Committee on the Cumberland
Road that Congress had no authority to make provision for tolls and
the prevention of abuses. “They can only proceed,” he said, “from the
legislatures of the states through which the road passes, and consist
of an authority for the erection of toll gates, and the collection of a
toll sufficient to defray the expenses of repair, and the infliction of
penalties upon persons who shall cut, break up, or otherwise destroy or
injure the road.”[246]
The House Committee, however, held that since a compact had been
entered into between the federal government and the states, Congress
had the right to legislate in order to carry out its undertaking to
open and maintain the road. “If the right to punish these offences
belongs to the national government,” said the committee, “it may
be effected without the passage of any law, by an indictment or
information in the courts of the United States, or by enacting
statutory provisions fixing the penalties, it being a fundamental right
of the judiciary inherent in every government to punish all offences
against the laws passed in pursuance of a delegated power independently
of express legislative sanctions.”[247]
After President Monroe’s veto, the Cumberland Road became sadly
in need of repairs, and again Congress considered the question of
jurisdiction,--whether the right to _preserve_ was incidental to
the right to _establish_. The states passed laws to protect the road
against injuries and appropriated money for improvements, but the
sums provided were inadequate[248] and soon a disposition was shown
to consent to the assumption by Congress of complete control over
the Road. The Pennsylvania legislature passed a resolution (1828)
giving the federal government permission to collect tolls within the
commonwealth, with the reservation that the whole amount collected
should be devoted to repairs.[249]
Monroe had desired cooperation between the national and local
authorities. In his message of December 2, 1823, he urged “an
arrangement with the several states through which the Road passes, to
establish tolls, each within its limits, for the purpose of defraying
the expense of future repairs and providing also by suitable penalties
for its protection against future injuries.”[250] This portion of the
message was considered by the House Committee on Roads and Canals,
whose opinion it was that Congress had itself the right to charge tolls
and punish offences; the committee could not approve of an arrangement
by which the states might charge tolls: uniformity and one jurisdiction
were eminently desirable.[251] Yet in 1828-1829 when the whole question
of control was again threshed out in Congress, any federal right,
either absolutely or by virtue of state permission, to charge tolls,
was still denied. Congress simply appropriated $100,000 for the repair
of the road; Monroe’s distinction between _appropriation_ and _control_
was adhered to.[252]
The states, moreover, still asserted plenary authority. In 1833 the
Maryland legislature gave the President authority to make a change
in the Cumberland Road[253] and in 1834 Illinois consented to the
extension of the national road “through the territory of said state so
as to cross the Mississippi River at the town of Alton and no other
point.”[254] For various reasons the road was not constructed, but
Congress was several times memorialized to take the desired action[255]
and in 1844 the Senate Committee on Roads and Canals, having under
consideration a bill to extend the highway to Alton, made a favorable
recommendation and pointed out the fact that the consent of the states
affected was a necessary preliminary before actual construction could
begin.
“The right of the state of Illinois to give or withhold her assent to
the construction of the road within her limits,” said the committee’s
report, “cannot be questioned in view of the course pursued by the
general government to obtain the consent of other states.”[256] Reports
to identical effect were made during the second session of the 28th
Congress (January 15, 1845) and the second session of the 29th Congress
(January 16, 1847),[257] the second report being accompanied by a
strong letter from Senator Semple of Illinois, who pointed out that his
state would never consent to any route other than the one which had
been recommended in 1834.
Meanwhile definitive action had been taken during Jackson’s
administration, as a result of his determined opposition to internal
improvements and denial of federal authority to construct roads.
“Annual appropriations for the repair of the road were being made,
but this method could not continue indefinitely, inasmuch as tolls
could not be levied by the United States for repairs. Because of the
lack of jurisdiction, a resort to state control, with the consent of
Congress became an absolute necessity.”[258] Acts of the Pennsylvania,
Maryland, Ohio and Virginia legislatures were, therefore, passed,
and congressional assent was given to the erection of toll gates and
repairs by the states, with the provision in the compact that no
charge should be made for the passage of United States mails, troops
or property. In 1879 the control of the states was made complete and
unreserved. Yet the original acts of surrender recognized “either a
proprietary or jurisdictional interest, or both, in the United States,
as follows: (1) something was surrendered; (2) surrender was made by
‘compacts’ which regulated the number of toll gates and the rates
of toll; (3) provision was made for the United States to resume its
proprietary or jurisdictional interest at pleasure.”[259]
But before the legal questions arising out of this surrender were
passed upon by the Supreme Court of the United States, the whole
problem of congressional power and the rights of the states was
carefully considered by the Kentucky Court of Appeals, whose
opinion,[260] treating points _primae impressionis_, is remarkably
well considered. The particular question to be decided was whether a
contractor for carrying the mail between points within the state on a
turnpike road had any right of exemption from the tolls, exacted under
the company’s charter from other persons for the transit of their
horses and stages. The court held that the tolls should be paid.
It recognized that the postal power “being necessarily exclusive,
plenary and supreme, no state can constitutionally do, or authorize
to be done, any act which may frustrate, counteract, or impair the
proper and effectual exercise of it by national authority. From these
axiomatic truths it follows as a plain corollary that the general
government has the right to transport the national mail _whenever_ and
_wherever_ the national Congress, in the _constitutional_ exercise
of its delegated power over _postoffices_ and _postroads_ shall have
prescribed.” But, said the court, this power was not unlimited, and
could not appropriate private property for public use without just
compensation. If the turnpike was considered as private property in
view of the company’s franchise, tolls should be paid by the mail
contractor; considering the turnpike as a public state road, the court
reached the same conclusion, which, it pointed out, would not have been
modified had Congress seen fit to designate this particular road as a
mail route. Anyone doubting the logic of this, the court said, “should
also doubt whether his own house might not be taken and used as a
postoffice without his consent and without any compensation.”
The court then proceeded, _obiter_, to explain its understanding of
the postroads power. According to reason and philology, the import of
“establish” was declared to be, not merely “designate” but “found,
prepare, make, institute and confirm.” “So too,” the court held, “as
roads and good roads are indispensable to the effectual establishment
of postroads, the supreme power to ‘establish postroads’ necessarily
includes the power to make, repair and preserve such roads as may be
suitable....” Congress therefore was considered to have the power to
open roads and build bridges when necessary; there was no question of
constitutional right, simply of expediency.[261]
“Unless Congress shall elect to exercise its right of eminent domain,
and buy a state road, or make one, or help to make or repair it, the
constitution gives no authority to use it as a postroad without the
consent of the state or the owner, without making just compensation for
the use.” Here was acknowledgment of an authority more far reaching
than even the more liberal contemporary opinion gave to Congress; the
court recognized a right of eminent domain to take over a road, but
until this was exercised, the mails were subject to tolls.
When, seven years later, the Supreme Court of the United States passed
upon the toll question which arose under the compact ceding the
Cumberland Road to the states,[262] there was the same opportunity to
make a definite pronouncement as to the authority of Congress to engage
in road construction; in its opinion, however, the Court made no use of
this opportunity, although a dissentient justice voiced his views that
the power of Congress was not so great as that asserted in the Dickey
case.
The act of the Ohio legislature in taking over the Cumberland Road
specifically provided that tolls should not be collected for the
passage of the mails; but the Pennsylvania law was more general,
declaring that “no toll shall be received or collected for the passage
of any wagon or carriage laden with the property of the United
States....” The Maryland act was precisely the same as this, while the
Virginia statute followed the Ohio law. In 1836, however, Pennsylvania
declared that the exemption should be only in proportion to the amount
of property belonging to the United States, and “that in all cases
of wagons, carriages, stages or other modes of conveyance, carrying
the United States mail, with passengers or goods, such wagon, stage,
or other mode of conveyance shall pay half-toll upon such modes of
conveyance.”
The validity of this legislation was the question presented to the
Supreme Court, and in its decision the Court could well have entered
upon a discussion of the power of Congress in the premises. But Chief
Justice Taney, who delivered the opinion, was at pains to point out,
“that the constitutional power of the general government to construct
this road is not involved in the case before us; nor is the court
called upon to express any opinion on that subject; nor to inquire
what were the rights of the United States in the road previous to the
compacts hereinbefore mentioned.”
Taney simply held, therefore, that “the United States have
unquestionably a property in the mails”; that this property was
exempted from the payment of tolls by the terms of the compact, but
this exemption should not apply to other property in the same vehicle,
nor to any person unless in the service of the United States. Finally,
in answer to the objection that small parcels might be sent by a number
of conveyances to relieve them from the payment of tolls, Taney held
that “the United States cannot claim an exemption for more carriages
than are necessary for the safe, speedy, and convenient conveyance of
the mail.”
From Taney’s judgment, Justice McLean dissented, primarily on the
ground that “the mail of the United States is not the property of
the United States,” and that charging tolls for its passage was not
in violation of the compact. Justice Daniels, however, objected upon
different grounds, and declared that it was necessary to consider “the
operation and effect of the compact insisted upon as controlled and
limited by the powers of both contracting parties.”
“I hold then,” he declared, “that neither Congress nor the federal
government in the exercise of all or any of its powers or attributes
possesses the power to construct roads, nor any other description of
what have been called internal improvements within the limits of the
states. That the territory and soil of the several states appertain
to them by title paramount to the Constitution, and cannot be taken,
save with the exception of those portions which might be ceded for
the seat of the federal government and for sites permitted to be
purchased for forts, arsenals, dockyards, etc. That the power of the
federal government to acquire, and that of the states to cede, to that
government portions of their territory, are by the Constitution limited
to the instances above adverted to, and that these powers can neither
be enlarged, nor modified, but in virtue of some new faculty to be
imparted by amendments of the Constitution.
“I believe that the authority vested in Congress by the Constitution to
establish postroads, confers no right to open new roads, but implies
nothing beyond a discretion in the government in the regulations it
may make for the postoffice department for the selection amongst the
various routes, whilst they continue in existence, of those along
which it may be deemed most judicious to have the mails transported. I
do not believe that this power given to Congress expresses or implies
anything peculiar in relation to the means or modes of transporting the
public mail, or refers to any supposed means or modes of transportation
beyond the usual manner existing and practised in the country, and
certainly it cannot be understood to destroy or in anywise to affect
the proprietary rights belonging to individuals or companies vested
in those roads. It guarantees to the government the right to avail
itself of the facilities offered by those roads for the purposes of
transportation, but imparts to it no exclusive rights--it puts the
government upon the footing of others who would avail themselves of the
same facilities.”
For these reasons, “the government could legally claim no power to
collect tolls, no exemption from tolls, nor any diminution of tolls
in their favor, purely in consequence of their having expended
money on the road, and without the recognition by Pennsylvania of
that expenditure as a condition in any contract they might make
with that state.” Nevertheless the United States could contract
with Pennsylvania, and so Justice Daniels examined the terms of the
agreement, coming to the conclusion that by its terms, United States
mail was not exempt from toll charges.[263]
While the authority of the majority opinion in this case is somewhat
lessened by the fact that the argument was as to the meaning of the
compact, it was held, impliedly at least, that in order to carry out
one of its delegated powers,--the establishment of postoffices and
postroads,--the United States might, by compact, enter upon a scheme
of internal improvements. Furthermore, the court, by holding that
the general government had the right to enter into the compact of
surrender, recognized an original federal interest in the Cumberland
Road. The clear import of the majority opinion is, I think, that if
Taney had considered it necessary to pass upon the point, Congress
would have been accorded the right to construct postroads, and this
would have included authority to charge tolls for the use of the
highways by others than the postoffice department.[264]
These adjudications were carried a long step further when the Supreme
Court asserted the federal right of eminent domain which had been
foreshadowed in the Dickey case, but not exercised by Congress.[265]
In 1864 the Northern Pacific Railroad was incorporated, and lands
were granted to aid in the construction, but the act provided that
the company “shall obtain the consent of the legislature of any state
through which any portion of said railroad line may pass, previous to
commencing the construction thereof.” Congress reserved the right to
appeal or amend the act, “to secure to the government at all times
(but particularly in time of war) the use and benefits of the same for
postal, military and other purposes.”[266] In 1868, however, Congress
undertook improvements in the Mississippi River, and authorized its
agents to take possession of the necessary materials “after having
first paid or secured to be paid, the value thereof which may have
been ascertained in the mode provided by the laws of the state.”[267]
When the question came before the courts there was little hesitancy in
holding that Congress had a right of eminent domain. The Circuit Court
for the Southern District of Ohio declared that “the constitutional
provisions giving to Congress authority to establish postoffices and
postroads, and to make all laws for carrying into effect the enumerated
powers, taken together with the declaration that all laws made in
pursuance of the Constitution shall be the supreme law of the land,
invest Congress with authority to condemn lands situated within a state
for use as a postoffice site.”[268] A holding to the same effect was
made by the Supreme Court of the United States which declared:
“It is true, this power of the federal government has not heretofore
been exercised adversely; but the non-user of a power does not disprove
its existence.... If the United States have the power, it must be
complete in itself. It can neither be enlarged nor diminished by a
state. Nor can any state prescribe the manner in which it must be
exercised. The consent of a state can never be a condition precedent to
its enjoyment.”[269]
But before this right of eminent domain was recognized, a broad
legislative control had been assumed over the highways of the country.
In 1838 Congress declared “that each and every railroad within the
limits of the United States which now is, or hereafter may be made and
completed, shall be a postroute,”[270] and in 1856, the Supreme Court
(under the commerce clause, however) sanctioned a further extension.
Bridges across the Ohio River at Wheeling were alleged by the State of
Pennsylvania to be an obstruction of navigation and their removal was
ordered by the Supreme Court. The decree had not been executed when,
by act of Congress (1852), the bridges were “declared to be lawful
structures in their present positions and elevations, and shall be so
held and taken to be, anything in the law or laws of the United States
to the contrary notwithstanding,” and further, “that the said bridges
be declared to be and are established postroads for the passage of the
mails of the United States.”
Later, the main bridge being blown down, the Supreme Court granted an
injunction restraining the reconstruction. The company disregarded
the order and upon motions by the plaintiff to attach the defendant’s
property for contempt, and by the company to dissolve the injunction,
the Supreme Court held that the act of Congress vacated the decree and
superseded its effect and operation. The Court said:
“We do not enter upon the question, whether or not Congress possess
the power, under the authority of the Constitution, ‘to establish
postoffices and postroads’ to legalize this bridge; for, concluding
that no such powers can be derived from this clause, it must be
admitted that it is, at least, necessarily included in the powers
conferred to regulate commerce among the several states.”[271]
By the act of March 2, 1861,[272] moreover, the monopoly provisions
of earlier statutes were extended to all postroutes, already or
thereafter established, but letter carrier routes within cities did
not become postroads until so declared by Congress in 1872, and
at the present time, in addition to railroads and routes for the
collection and delivery of the mail, the following are established as
postroads: all waters of the United States, canals, and plank roads
during the time the mail is carried thereon; “the road on which the
mail is carried to supply any courthouse which may be without a mail,
and the road on which the mail is carried under contract made by the
postmaster general for extending the line of posts to supply mails to
postoffices not on any established route, during the time such mail is
carried thereon”; and “all public roads and highways while kept up and
maintained as such.”[273] In order to insure the safe passage of the
mails, the federal government may take all necessary measures to remove
obstructions and prevent depredations, even on the public streets of a
town.
Finally, under three grants in the Constitution,--to regulate commerce,
to establish postoffices and postroads, and to raise and support
armies,--Congress has chartered transcontinental railway companies
and bridge companies. It has, moreover, granted to these corporations
the power of eminent domain to be exercised without the consent or
permission of the states. In holding that the franchises of the Union
Pacific Railroad Company were federal franchises, properly granted, and
beyond the power of the state to tax, the Supreme Court said:
“It cannot at the present day be doubted that Congress under the power
to regulate commerce among the several states, as well as to provide
for postal accommodations and military exigencies, had authority to
pass these laws. The power to construct, or to authorize individuals
or corporations to construct, national highways and bridges from state
to state, is essential to the complete control and regulation of
interstate commerce. Without authority in Congress to establish and
maintain such highways and bridges, it would be without authority to
regulate one of the most important adjuncts of commerce. This power in
former times was exerted to a very limited extent, the Cumberland or
National Road being the most notable instance. Its exertion was but
little called for, as commerce was then mostly conducted by water,
and many of our statesmen entertained doubts as to the existence of
the power to establish ways of communication by land. But since, in
consequence of the expansion of the country, the multiplication of
its products, the invention of railroads and locomotion by steam,
land transportation has so vastly increased, a sounder consideration
of the subject has prevailed, and led to the conclusion that Congress
has plenary power over the whole subject. Of course, the authority
of Congress over the territories of the United States, and its power
to grant franchises exercisable therein, are, and ever have been,
undoubted. But the wider power was very freely exercised, and much
to the general satisfaction, in the creation of the vast system of
railroads connecting the East with the Pacific, traversing states
as well as territories and employing the agency of state as well as
federal corporations.”[274]
Early attempts, then, by Congress to furnish postal facilities and open
up communication through the construction of highways for the carriage
of the mails, met with denials that the power “to establish postroads”
meant more than the power to designate the roads to be used, and that,
even if this were not so, any action could be taken without the consent
of the states whose territory was to be used. To permit national
undertakings, however, Monroe developed the distinction that Congress
might appropriate for roads to be laid out with the consent of the
states, but that the national government had no jurisdictional rights
to construct, repair or keep the highways free from obstructions. This
distinction, which Von Holst called a “quibble on words,” was abandoned
by John Quincy Adams, who was a stanch advocate of federal aid, but was
revived by Jackson, who believed that appropriations could be made for
_national_, but not for _local_ purposes. In Congress, during the whole
of this period, various views were expressed, but the better opinion,
accepted by the authority, if not by the majority, of the speakers, was
that Congress had powers (occasionally exercised) which were broader
than the executives were disposed to concede.
The continued assertion by the states of plenary authority and
the failure of Congress to adopt any successful plan by which the
Cumberland Road might be kept in repair, led to compacts of surrender
under which the national authorities gave up all control over this
highway. The meaning of these compacts was examined by the Supreme
Court of the United States, and the plain implication of the decisions
(although definite expressions were not necessary for the determination
of the particular questions presented) is that Congress had the
right to construct postroads and to charge tolls for their use by
others than postal officials. This power had already been conceded
in an illuminating opinion by the Kentucky Court of Appeals, and the
subsequent decisions recognizing a right of eminent domain in the
federal government and sanctioning the federal incorporation of railway
and bridge companies, are conclusive authority that Congress had the
power which the more liberal of its members asserted, but which the
states and occasional executives denied. That the power to _establish_
postroads comprehends the power to _construct_ (compensation being
made to the states), to levy tolls, and to repair and keep free from
obstructions, has thus been assured by judicial decisions as well as by
a fair interpretation of the words of the grant; and any fancied taint
of unconstitutionality has been removed from laws which Congress passed
under its plenary power “to establish postroads,” but which exceeded
the limitations laid down by the strict constructionists, and did not
come before the Supreme Court for a determination of their validity.
CHAPTER IV
LIMITATIONS ON THE POSTAL POWER
Like all grants to Congress, the postal power is not unrestrained,
but, as the Supreme Court has expressed it, the difficulty in setting
limits beyond which it may not go, arises, “not from want of power in
Congress to prescribe the regulations as to what shall constitute mail
matter, but from the necessity of enforcing them consistently with
the rights reserved to the people, of far greater importance than the
transportation of the mail.”[275] One, and perhaps the most important,
of these rights is involved when restrictions are applied to periodical
publications (particularly in reference to obscene matter and lottery
tickets), and the question is at once raised as to the freedom of the
press, guaranteed against abridgment by the second clause of the first
amendment to the Federal Constitution.[276] The extent to which this
limitation has been ignored is a moot question. On the one hand, we
have the confident assertion of Von Holst[277] that “the freedom of the
press has become a part of the flesh and blood of the American people
to such an extent, and is so conditioned by the democratic character of
their political and social life, that a successful attack upon it, no
matter what legal authority it might have on its side, is impossible.
Even the gigantic power of slavocracy gave up the battle as hopeless
after the first onslaught.”
On the other hand, Hannis Taylor in his recent work on the American
Constitution remarks that “little need be said as to the clause
forbidding Congress to pass any law ‘abridging the freedom of the
press,’ as that clause has been removed from the Constitution, so far
as the mails are concerned, by the judgment rendered in 1892, _In Re
Rapier_.”[278] And this extreme view may be said to have received some
support from a recent decision of the Supreme Court which upheld the
power of Congress to compel newspapers to publish certain information
concerning their internal affairs, under penalty, for refusal, of being
denied the advantages of low second class rates.[279] Which, then,
is the correct view as to the inviolability or abrogation of this
constitutional guarantee in relation to the mails?
_Freedom of the Press._--In the Convention which framed the Federal
Constitution, Mr. Pinckney, on August 20, 1787, submitted a number of
propositions among which was a guarantee that “the liberty of the Press
shall be inviolably preserved.”[280] The propositions were referred
to the Committee of Detail, and when the question again came up for
consideration on September 14, Mr. Pinckney and Mr. Gerry “moved to
insert a declaration that the liberty of the Press should be inviolably
observed.” This motion was lost, Mr. Sherman remarking that “it is
unnecessary. The power of Congress does not extend to the Press.”[281]
During the discussion of the Constitution by the States, however, the
absence of a guarantee of the freedom of the press was frequently
adverted to. Speaking in the South Carolina House of Representatives,
Mr. C. C. Pinckney said:
“With regard to the liberty of the press, the discussion of that
matter was not forgotten by the members of the Convention. It was
fully debated, and the impropriety of saying anything about it in the
Constitution clearly evinced. The general government has no powers but
what are expressly granted to it; it therefore has no power to take
away the liberty of the press. That invaluable blessing which deserves
all the encomiums the gentleman has justly bestowed upon it, is secured
by all our state constitutions; and to have it mentioned in our general
Constitution would perhaps furnish an argument, hereafter, that the
general government had a right to exercise powers not expressly
delegated to it.”[282]
A different theory was advanced by Hamilton, who, answering the
objection that the Constitution contained no bill of rights, and
treating specifically the absence of any provision safeguarding the
press, asked: “What signifies a declaration that ‘the liberty of
the press shall be inviolably preserved?’ What is the liberty of
the press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and from
this I infer that its security, whatever fine declarations may be
inserted in any Constitution respecting it, must altogether depend upon
public opinion, and on the general spirit of the people and of the
government....”[283]
A proposal to guarantee the freedom of the press was, however, a part
of the plan for a bill of rights which Madison introduced in Congress
on June 8, 1789.[284] Such a federal provision had been suggested by
the ratifying conventions of three states, and similar provisions were
contained in nine state constitutions.[285] Madison’s proposal was
amended until it provided that “the freedom of speech and of the press
... shall not be infringed” and its language was further modified until
it took the form in which it became a part of the Constitution.
Concerning the meaning of the amendment at the time of its adoption,
there has been little, if any controversy, in spite of Hamilton’s
declaration to the contrary. Blackstone had announced a generally
accepted rule when he said that the liberty of the press “consists in
laying no _previous_ restraint upon publications, and not in freedom
from censure for criminal matter when published. Every freeman has an
undoubted right to lay what sentiments he pleases before the public;
to forbid this, is to destroy the freedom of the press; but if he
publishes what is improper, mischievous, or illegal, he must take the
consequence of his own temerity.... To punish (as the law does at
present) any dangerous or offensive writings, which, when published,
shall, on a fair and impartial trial be adjudged of a pernicious
tendency, is necessary for the preservation of the peace and good
order, of government and religion, the only foundations of civil
liberty.”[286]
In the celebrated case of People v. Croswell, Alexander Hamilton
appearing as counsel for the traverser, laid down the following rule
which was unsupported by the English common law, but which has been
accepted as a proper definition by a number of the present-day state
constitutions. Hamilton said:
“The liberty of the press consists, in my idea, in publishing the
truth, from good motives, and for justifiable ends, though it reflect
on the government, on magistrates, or individuals.... It is essential
to say, not only that the measure is bad and deleterious, but to hold
up to the people who is the author, that in this our free and elective
government, he may be removed from the seat of power.”[287] And Story
was of the opinion that the guarantee “is neither more nor less, than
an expansion of the great doctrine, recently brought into operation in
the law of libel, that every man shall be at liberty to publish what is
true, with good motives, and for justifiable ends.”[288]
The amendment guaranteeing the freedom of the press has never been
before the Supreme Court of the United States in such a manner that a
comprehensive consideration of its meaning and effect has been entered
upon. This is true even of those cases in which the issue was as to
the constitutionality of laws denying newspapers the use of the mails
for various reasons.[289] In fact, the most important _dictum_ of the
Supreme Court occurs in a case where a federal law was not involved,
the Court adopting Blackstone’s definition and holding that “the main
purpose of such constitutional provisions is to ‘prevent all such
_previous restraints_ upon publications as had been practised by other
governments,’ and they do not prevent subsequent punishment of such as
may be deemed contrary to the public welfare.”[290]
The cases, as well as the text-writers, seem to settle that the first
amendment to the Federal Constitution announced no new principles;
it must be interpreted in reference to its meaning at common law.
The principal inhibition upon the legislature is in the enactment of
_previous restraints_, but even here not absolutely. By the civil
law of libel, as it was when the Constitution was adopted, the one
publishing had to answer for personal wrongs, and the criminal law
could punish for defamatory, obscene, blasphemous or seditious
libels. To this extent, there could be, and, in fact, were, previous
restraints.[291]
But a recent writer, after an able consideration of the early
declarations in the light of their history, comes to the conclusion
that “they obliterated the English common-law test of supposed bad
tendency to determine the seditious or blasphemous character of a
publication, and hence obliterated the English common-law crimes
of sedition and blasphemy; shifted the law of obscene and immoral
publications from the region of libel to the region of public
nuisance; and left standing only the law of defamatory publications,
materially modifying that.” Professor Schofield goes on to say that
“the declarations wiped out the English common-law rule in criminal
prosecutions of defamatory libel, ‘The greater the truth the greater
the libel,’” and “threw on American judges in civil and criminal
actions for defamatory libel the new work of determining what is truth
in a publication on a matter of public concern.” The correct view, in
this author’s opinion, is that “if liberty of the press in the First
Amendment means anything it legalizes published truth on all matters
of public concern.”[292] Without, however, attempting to pass judgment
on Professor Schofield’s criticism of the cases, it will be possible,
from either view, to ascertain whether the freedom of the press has
ever been abridged by the denial of the use of the mails (for freedom
of publication includes, although perhaps not absolutely, freedom of
circulation), and to set the limits of congressional action.
Not until 1836 was there any serious discussion of the meaning of the
phrase “liberty of the press” and the limitations it might impose upon
the postal regulations which Congress had the power to make.[293] But
during this year an exhaustive debate took place in the Senate as a
result of President Jackson’s message (December 2, 1835) urging the
enactment of legislation to check the incendiary publications with
which the Northern abolitionists were flooding the slave states. The
evil complained of was serious, and the states were making strenuous
objections to the continued presence in the mails of such literature.
On July 29, 1835, for example, the _Southern Patriot_ of Charleston,
S. C., complained that the mails from the North were “literally
overburthened with the newspaper called ‘The Emancipator’ and two
tracts entitled ‘The Anti-Slavery Record’ and ‘The Slaves’ Friend,’”
This was declared a “monstrous abuse of the public mail” and the
publications were denounced as moral poison, the _Patriot_ adding: “If
the general post office is not at liberty [to prevent circulation],
_it is impossible to answer for the security of the mail in this
portion of the country_, which contains such poisonous and inflammatory
matter.”[294] The Charleston postoffice was in fact entered, and this
particular consignment of papers destroyed. “Extreme cases require
extreme remedies,” said the _Patriot_, and the Charleston _Mercury_
went so far as to predict that anyone violating the South Carolina
law against circulation “would assuredly expiate his offence on the
gallows.”[295] Practically all of the Southern States had extremely
stringent statutes and several provided capital punishment for
offenders.[296]
This occurrence at Charleston led Samuel L. Gouverneur, postmaster at
New York, to suggest to Amos Kendall, the postmaster general, that the
transmission of such papers be suspended, but Arthur Tappan, president
of the American Anti-slavery Society, declined to surrender “any rights
or privileges which we possess in common with our fellow citizens in
regard to the use of the United States mail.”[297] Local postmasters
nevertheless began to take matters in their own hands. In regard to the
detention of incendiary matter by the Charleston postoffice, Kendall
wrote:
“I am satisfied that the postmaster general has no legal authority
to exclude newspapers from the mail, nor prohibit their carriage or
delivery on account of their character or tendency, real or supposed....
“The post office department was created to serve the people of _each_
and _all_ of the United States and not to be used as the instrument of
their _destruction_.... Entertaining these views, I cannot sanction
and will not condemn the step you have taken. Your justification
must be looked for in the character of the papers detained, and the
circumstances by which you are surrounded.”[298] Kendall left it to the
discretion of the local postmasters as to whether they would carry out
their official duties, or obey the laws of the local jurisdictions.[299]
It was, therefore, no surprise when Jackson adverted to the situation,
and in his annual message asked for legislation denying such
publications the facilities of the postoffice. President Jackson wrote:
“I must also invite your attention to the painful excitement produced
in the south, by the attempts to circulate, through the mails,
inflammatory appeals addressed to the passions of the slaves, in
prints, and in various sorts of publications, calculated to stimulate
them to insurrection and to produce all the horrors of a servile war....
“In leaving the care of other branches of this interesting subject to
the state authorities, to whom they properly belong, it is nevertheless
proper for Congress to take such measures as will prevent the post
office department, which was designed to foster an amicable intercourse
and correspondence between all members of the confederacy, from being
used as an instrument of the opposite character. The general government
to which the great trust is confided of preserving inviolate the
relations created among the states by the Constitution is especially
bound to avoid, in its own action, anything that may disturb them.
I would, therefore, call the special attention of Congress to the
subject, and respectfully suggest the propriety of passing such a
law as will prohibit, under severe penalties, the circulation in the
southern states, through the mail, of incendiary publications intended
to instigate the slaves to insurrection.”[300]
On December 21, 1835, Calhoun moved that “so much of the President’s
message as relates to the transmission of incendiary publications by
the United States mail be referred to a special committee.” King of
Alabama expressed the opinion of several that the regular standing
committee on postoffices would do, since he “felt a confident belief
that there was no disposition in any of its members to have the public
mails prostituted to a set of fanatics.” Preston of South Carolina
thought that a solution of the evil could be arrived at by a method
other than barring the publications from the mail. He proposed “that
the depositing of an incendiary publication in the post office should
be constituted an offence in the state where it took place, and the
letting of it out of the post office should be equally deemed an
offence where it occurred.”[301] Nevertheless, Calhoun’s view prevailed
and the message was referred to a select committee of which he was made
chairman.[302] An elaborate report written by him was presented to the
Senate on February 4, 1836,[303] but with the unqualified concurrence
of only one fellow committeeman. The others opposed, either any federal
action at all, Calhoun’s theory as to the remedy, or some of the
details of the measure which was recommended.
The committee’s report was based upon the premise that Congress had
not the power to pass legislation in accordance with the President’s
recommendation to exclude the objectionable publications from the
mails; such a law, Calhoun thought, “would be a violation of one of the
most sacred provisions of the Constitution, and subversive of reserved
powers essential to the preservation of the domestic institutions of
the slaveholding states, and with them, of their peace and security.”
This would be closely analogous to the Sedition Act which made it
a crime to print “any false, scandalous and malicious writing or
writings, against the government of the United States,” or Congress,
or the President, “with intent to defame ... or to bring them ... into
contempt or disrepute ... or to incite against them, or either of them,
the hatred of the good people of the United States.”[304]
But, said Calhoun, postulating the unconstitutionality of these
provisions, “as abridging the freedom of the press, _which no one
now doubts_, it will not be difficult to show that if, instead of
inflicting punishment for publishing, the act had inflicted punishment
for circulating through the mails for the same offence, it would have
been equally unconstitutional ... To prohibit circulation, is in
effect, to prevent publication ... each is equally an abridgment of the
freedom of the press.
“The prohibition of any publication on the ground of its being immoral,
irreligious, or intended to excite rebellion or insurrection, would
have been equally unconstitutional; and, from parity of reason, the
suppression of their circulation through the mail would be no less
so.”[305]
The fallacy of this is evident. So far as the Sedition Act is
concerned, there are two grounds upon which it could be attacked:
lack of congressional power to punish sedition, and abridgment of
the freedom of the press. The first question, for present purposes,
needs no discussion;[306] but, as for the second, it is well settled
that punishment for seditious, obscene, defamatory and blasphemous
publications, is not in violation of the freedom of the press.[307] In
the United States, then, there is no constitutional restriction which
will compel the government impotently to remain the subject of attacks
upon its stability. The Act of 1798 was very broad and objectionable
on this ground, but the prohibition of seditious utterances urging the
use of force or unlawful means to overthrow the government or falsely
defamatory of federal officers would not infringe any provision of the
bill of rights.[308]
But legislation of the character urged by Jackson was not on all fours
with the Sedition Act, for by that act the government was punishing
publications which it deemed inimical to its own safety. The incendiary
matter, however, concerned the states and only a portion of them; the
power of Congress to prohibit it, therefore, was doubtful, unless
the evil reached such proportions that the menace to the states was
a menace to the federal government. To Calhoun it seemed also that
the prohibition of circulation through the mails was tantamount to a
prohibition of publication.
The right “to determine what papers are incendiary,” the report
argued, and as such to “prohibit their circulation through the mail,
necessarily involves the right to determine what are not incendiary and
to enforce their circulation”; both were matters of state prerogative.
And, if “consequently the right to protect her internal peace and
security belongs to a state, the general government is bound to respect
the measures adopted by her for that purpose, and to cooperate in their
execution, as far as its delegated powers may admit, or the measure
may require. Thus, in the present case, the slaveholding states having
the unquestionable right to pass all such laws as may be necessary
to maintain the existing relation between master and slave in those
states, their right, of course, to prohibit the circulation of any
publication or intercourse calculated to disturb or destroy that
relation is incontrovertible.” The general government is bound, “in
conformity to the principle established, to respect the laws of the
state in their exercise, and so to modify its act as not only not to
violate those of the stated, but as far as practicable, to cooperate in
their execution.”
Simultaneously with the presentation of this report, Calhoun introduced
a bill, framed in accordance with his views, making it unlawful for any
postmaster to receive and put in the mail any publication addressed to
a jurisdiction where its circulation was forbidden. It was made a crime
to deliver such prohibited mail to any person not “duly authorized ...
to receive the same” by the local authorities, and there was a further
provision that the laws of the United States should not be allowed to
protect any postmaster accused of violating local regulations. By this
means, Calhoun thought to preserve the liberty of the press and hand
the matter over to the states for their settlement.[309]
The constitutional questions involved in the report and law proposed
gave rise to a debate of such importance that it has several times been
referred to by the Supreme Court of the United States in passing on
partially analogous matters.[310] Many different views were advanced as
to the correct interpretation of the postal grant which at this time
had received practically no consideration by the judiciary. Webster,
for example, contended that the proposed law “conflicted with that
provision of the Constitution which prohibited Congress from passing
any law to abridge the freedom of speech or of the press. What was
the liberty of the press?” he asked. “It was the liberty of printing
as well as the liberty of publishing, in all the ordinary modes of
publication; and was not the circulation of papers through the mails an
ordinary mode of publication?... Congress might, under this example,
be called upon to pass laws to suppress the circulation of political,
religious, or any other description of publications which produced
excitement in the states.” Finally, he argued, “Congress had not the
power, drawn from the character of the paper, to decide whether it
should be carried in the mail or not; for such decision would be a
direct abridgment of the freedom of the press.”[311]
Clay argued to the same effect, considering the bill uncalled for by
public sentiment, unconstitutional, and containing “a principle of a
most dangerous and alarming character.”[312] Buchanan’s views, however,
were different. “It was one thing [he said] not to restrain or punish
publications; it was another and an entirely different thing to carry
and circulate them after they have been published. The one is merely
passive, the other is active. It was one thing to leave our citizens
entirely free to print and publish and circulate as they pleased; and
it was another thing to call upon us to aid in their circulation. From
the prohibition to make any law ‘abridging the freedom of speech or of
the press,’ it could never be inferred that we must provide by law for
the circulation through the post office of everything which the press
might publish.”[313]
Senator Davis of Massachusetts charged, quite properly, it seems to me,
that the report and bill were in conflict, since “the report sets forth
that Congress has no power to make a law to restrain the circulation
of incendiary papers through the mail, because the post masters have
no right to determine what is and what is not incendiary; and because
to shut papers out of the mail, would be an invasion of the liberty of
the press.” But the bill would have the United States adopt and enforce
state laws prohibiting the circulation of incendiary papers, “having
constitutional power so to do and being bound in duty so to do.”[314]
Another difficulty, as Davis went on to say, was “that incendiary
matter is anything unfavorable to slavery. The general principle urged
by the Senator from Carolina is, that where the states have power to
legislate, the United States is bound to carry into execution their
laws. They have the power to prohibit the circulation of incendiary
matter, and therefore Congress ought to aid that power.”
But to this “there are insurmountable difficulties. How and by whom,
is this law to be executed? Who is to determine, and in what manner,
whether the Constitution of Massachusetts, which declares that all men
are born free and equal, or the Declaration of Independence ... touch
the subject of slavery or are incendiary? Whoever holds this power may
shut up the great channels of inter-communication; may obstruct the
great avenues through which intelligence is disseminated.”[315]
The use of the mail was declared by Mr. Morris of Ohio to be “a
reserved right, with which no law ought to interfere, and not a
governmental machine which Congress can withdraw at pleasure or render
nugatory by the acts of its officers.” Mr. King raised the question as
to federal enforcement of circulation in the states against their will.
It would depend, he said, on the character of the paper. “If it were
a commercial letter ... or any other paper connected with the granted
powers and social relations, as established by the Constitution, and
not inconsistent with the reserved rights of the states, in that case
its circulation might be enforced. If of a different character it could
not be enforced, and the states whose acknowledged rights might be
affected, could interfere and arrest the circulation.”[316]
This debate, although exhaustive, was inconclusive, and some of the
opinions expressed seem, in the light of present day construction of
the postal clause, almost absurd. Considerably changed, Calhoun’s
bill came up for a vote on June 8, 1836, and failed of passage. In
its amended form, the bill no longer required that postmasters know
the laws of the places to which the mail they received was directed.
Under a penalty of being removed from office, they were forbidden to
deliver publications, the circulation of which was prohibited by local
laws, and in the event that state regulations were not regarded, it was
provided that “nothing in the acts of Congress shall be construed” so
as to furnish immunity from prosecution.[317]
There is much to be said in favor of this bill as amended. To make
their postal agents amenable to local laws as regards the distribution
of certain matter is surely within the constitutional power of
Congress, and the aim should constantly be for the federal government
to legislate so that national and local statutes will be harmonized.
“It must be kept in mind,” the Supreme Court has said, “that we are one
people and that the powers reserved to the states and those conferred
on the nation, are adapted to be exercised, whether independently or
concurrently, to promote the general welfare, material and moral.”[318]
In several instances this _dictum_ of the Court has been effectuated.
The Judiciary Act of 1789[319] adopted “the laws of the several
states” as “rules of decision in trials at common law in courts of
the United States in cases where they apply.”[320] Quarantine and
pilotage regulations have been freely made by the states.[321] During
Mr. Jefferson’s administration (and this was a precedent relied upon by
Calhoun), Congress passed a law forbidding the transportation of free
negroes from one state into any other where by local laws they were
not permitted to reside.[322] The constitutionality of this act was
sustained by Chief Justice Marshall.[323] So also, the congressional
act providing for publicity of campaign expenditures forbids any
candidate for Representative in Congress or for Senator of the United
States to “use money in violation of the laws of the state in which
he resides,”[324] and Congress has adopted and enforced, as its own,
state laws governing elections to the House.[325] Finally, in spite of
the constitutional requirement that bankruptcy laws must be uniform,
Congress has permitted great variance among the several states, their
regulations being enforced by the federal courts. To this there is no
constitutional objection.[326]
There is, thus, a considerable body of analogous authority in support
of Calhoun’s bill as amended. In its first form, the law he proposed
was open to objection in that it required deputy postmasters to
know the regulations of jurisdictions other than their own, and its
effect was to exclude from the mails incendiary matter which the
receiving postmaster thought would be considered objectionable at its
destination. Under the amended act, however, there would be uniformity,
since everything would be transmitted, the restriction being only as to
circulation within the states. In administering a great governmental
establishment, it should be the aim of Congress not to interfere with
the exercise by the states of powers reserved to them.
But Calhoun’s argument that the denial of postal facilities was
tantamount to a denial of the right of publication, is not well
founded, as the Supreme Court of the United States has been at pains
to point out; nevertheless it is true that, in some measure at least,
the First Amendment insures a use of the postoffice.[327] Whether, if
Congress had passed legislation excluding the incendiary literature
from the mails, absolutely, the constitutional guarantee of a free
press would have been violated, depends upon the character of the
publications. If they were of such a seditious tendency that their
menace of established institutions in the states was a menace to
the federal government, if they fomented disorder and proposed to
abolish slavery otherwise than by law, their utterance could have
been prohibited, and the denial of postal facilities would have been
constitutional. Or, if the objectionable publications did not affect
the general government, but incited to arson, murder, etc., and were
not simply political appeals, they could have been excluded, and there
would have been no infringement of the freedom of the press. But the
power of Congress did not extend to the denunciation of anything
unfavorable to slavery; freedom of circulation could not be denied
publications unless they fell within the limits stated above.
The views expressed in this debate on Calhoun’s bill were urged before
the Supreme Court of the United States with considerable force when
it was called upon to determine the constitutionality of the act
excluding lottery tickets from the mails. The prevailing opinion in
the senatorial debate had been, as we have seen, that Congress did
not possess the power to prohibit the carriage in the mails of the
incendiary publications, and to this citation of authority the Supreme
Court replied:
“Great reliance is placed by the petitioner upon these views, coming as
they did in many instances, from men alike distinguished as jurists and
statesmen. But it is evident that they were founded upon the assumption
that it is competent for Congress to prohibit the transportation of
newspapers and pamphlets over postal routes in any other way than by
mail; and of course, it would follow, that if with such a prohibition,
the transportation in the mail could also be forbidden, the circulation
of the documents would be destroyed and a fatal blow given to the
freedom of the press. But we do not think that Congress possesses the
power to prevent the transportation in other ways, as merchandise, of
matter which it excludes from the mails. To give efficiency to its
regulations and prevent rival postal systems, it may, perhaps, prohibit
the carriage by others for hire, over postal routes, of articles which
legitimately constitute mail matter, in the sense in which those terms
were used when the Constitution was adopted,--consisting of letters,
and of newspapers and pamphlets, when not sent as merchandise,--but
further than this its power of prohibition cannot extend.”
And in making a bare denial of the charge that the law abridged the
liberty of the press, the Court went on to say:
“In excluding various articles from the mail, the object of Congress
has not been to interfere with the freedom of the press, or with any
other rights of the people, but to refuse its facilities for the
distribution of matter deemed injurious to the public morals....
“Nor can any regulations be enforced against the transportation of
printed matter in the mail, which is open to examination, so as to
interfere in any manner with the freedom of the press. _Liberty of
circulating is as essential to that freedom as liberty of publishing;
indeed, without the circulation, the publication would be of little
value. If, therefore, printed matter be excluded from the mails, its
transportation in any other way cannot be forbidden by Congress._”[328]
In 1890 Congress extended the inhibition to “any newspaper, circular,
pamphlet, or publication of any kind, containing any advertisement of
any lottery,” and again the Supreme Court held that there had been no
impairment of the freedom of the press. The Court said:
“We cannot regard the right to operate a lottery as a fundamental right
infringed by the legislation in question; nor are we able to see that
Congress can be held, in its enactment, to have abridged the freedom
of the press. The circulation of newspapers is not prohibited, but the
government declines itself to become an agent in the circulation of
printed matter which it regards as injurious to the people. The freedom
of communication is not abridged within the intent and meaning of the
constitutional provision unless Congress is absolutely destitute of
any discretion as to what shall, or shall not be carried in the mails,
and compelled arbitrarily to assist in the dissemination of matter
condemned by its judgment, through the governmental agencies which it
controls. That power may be abused furnishes no ground for a denial of
its existence, if government is to be maintained at all.”[329]
It should be remarked that in these cases the reasoning was largely
based on the assumption that prohibiting circulation through the
mails was not equivalent to prohibiting publication, and Congress
could thus deny postal facilities to matter which it deemed injurious
to the people, without interfering with the liberty of the press,
since transportation between the states, outside of the mails,
would still be possible. But it would seem that this doctrine was
repudiated, inferentially at least, when the Supreme Court upheld the
law excluding lottery tickets from interstate commerce,[330] and it
would, therefore, it seems to me, have been far better if the Court,
in the first instance, had adopted other reasoning. It could have
held that the liberty of the press suffered abridgment by a denial
of postal facilities, but that lottery advertisements, by common
opinion, had become as objectionable as immoral writings, and that
the latter class,--an exception to the common law guarantee,--could,
by reason of a developing moral sense, be made to include the former.
Or the Court could have announced as a rule what is probably true,
independent of judicial acceptance, that the freedom of the press does
not include freedom of advertisement. Or, to advert to the view of
Professor Schofield, if the First Amendment protects only publications
which have an educational value on matters of national public concern,
lottery advertisements do not come within this class; nor do obscene
writings.[331] Any one of these theories would have permitted the
Supreme Court to render a logical decision, without putting forth a
_dictum_ that Congress could not prevent the transportation in other
ways of matter excluded from the mails, for this would be a check on
circulation which would be a check on publication, and then being
forced to take a contrary position in order to declare constitutional
a statute which exercised the very power that the Court had doubted.
Calhoun’s contention, therefore, seems to be the more logical. As it
was, the _ratio decidendi_ of the Court in the Jackson and Rapier cases
would have been impossible had the restraint been against writings of
an admittedly innocuous character, against political opinions, for
example, or against matters not so universally condemned under the
police power. And, to repeat, the Court was forced to deny what, I
think, is undoubtedly the better doctrine,--that the liberty of the
press may be abridged by restrictions on the use of the mails,--a
doctrine that will probably be returned to if Congress legislates on
publications that are unobjectionable.
The question of anarchistic publications and the postoffice was raised
in March, 1908, when President Roosevelt wrote to Attorney General
Bonaparte:
“By my direction the Postmaster General is to exclude _La Questione
Sociale_, of Paterson, N. J., from the mails, and it will not be
admitted to the mails, unless by order of the court, or unless you
advise me that it must be admitted.”[332]
In reply to the President’s letter, Secretary Bonaparte wrote:
“I am obliged to report that I can find no express provision of law
directing the exclusion of such matter from the mails, or rendering
its deposit in the mails an offense against the United States”; but
“I have the honor to advise you that it is clearly and fully within
the power of Congress to exclude from the mails publications” such as
_La Questione Sociale_, “and to make the use, or attempted use, of the
mails for the transmission of such writings a crime against the United
States.”
What Congress thought of anarchy, Mr. Bonaparte said, was shown by the
Act of March 7, 1907,[333] excluding and providing for the deportation
of anarchists, and the Attorney General made this implied expression
of legislative authority (even though in 1903 Congress had expressly
refused to pass a law directed against anarchistic publications) a
sufficient basis to legalize the action of the President and exclude
newspapers which advocated the opinions quoted. The Attorney General’s
opinion concluded:
“In the absence of any express provision of law or binding adjudication
on this precise point, ... I advise you that, in my opinion, the
Postmaster General will be justified in excluding from the mails any
issue of any periodical, otherwise entitled to the privileges of second
class mail matter, which shall contain any article constituting a
seditious libel and counselling such crimes as murder, arson, riot, and
treason.”
Such action, the opinion said, would be perfectly safe, since “it is
well settled that at common law the owner of a libelous picture or
placard or document of any kind is entitled to no damages for its
destruction in so far at least as its value may depend on its unlawful
significance.” Hence the federal statutes which provide punishment for
postmasters who may “unlawfully detain” or “improperly detain” mailable
matter, would not operate.[334]
As a matter of fact, the newspaper was excluded for reasons other
than its contents, but President Roosevelt transmitted the Attorney
General’s opinion to Congress and in a special message said:
“Under this opinion I hold that the existing statutes give the
President power to prohibit the Postmaster General from being used
as an instrument in the commission of crime; that is, to prohibit
the use of the mails for the advocacy of murder, arson, and treason;
and I shall act upon such construction. Unquestionably, however,
there should be further legislation by Congress in this matter. When
compared with the suppression of anarchy, every other question sinks
into insignificance.” Congress has since acted by declaring that
the term “indecent” in the section against obscene writings, should
include “matter of a character tending to incite arson, murder or
assassination.”[335]
The Attorney General in his opinion, it may be remarked, did not
mention the freedom of the press, and this question was not involved.
From what has already been said, it follows that there is no question
as to the competency of Congress to pass legislation designed to deny
the mails to anarchistic publications if they incite to crime. But
the Attorney General’s argument as to the power of the President was
not well founded; it granted to an administrative officer arbitrary
discretion based on no explicit or implied legislative authority,
and sanctioned the exercise of this power on the ground that the one
injured could have no legal redress. It is, however, simply a question
of whether the exclusion was _ultra vires_, not whether it was an
abridgment of the freedom of the press.[336]
The latest question of the freedom of the press was considered by
the Supreme Court in 1913 when it sustained the so-called “newspaper
publicity law.” This required publications entered as second class
matter (with a few exceptions) to furnish the postoffice department
with, and publish semi-annually, a sworn statement of their editors and
owners, in addition to marking as an advertisement anything for
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