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tinue: "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, stand,' he said, 'more fully the extent of the control which the right of prohibiting circulation through the mail would give to the government over the press, it must be borne in mind that the power of Congress over the postoffice and the mail is an exclusive power. It must also be remembered that Congress, in the exercise of this power, may declare any road or navigable water to be a post-road; and that by the act of 1825, 4 Stat. at L. 102, it is provided "That no stage, or other vehicle which regularly performs trips on a post-road, or on a road parallel to it shall carry letters." The same provision extends to packets, boats, or other vessels on navigable waters. Like provision may be extended to newspapers and pamphlets, which, if it be admitted that Congress has the right to discriminate in reference to their character, what papers shall or what shall not be transmitted by the mail, would subject the freedom of the press, on all subjects, political, moral and religious, completely to its will and pleasure. It would, in fact, in some respects, more effectively control the freedom of the press than any sedition law, however severe its penalties.' Mr. Calhoun, at the same time, contended that when a State had pronounced certain publications to be dangerous to its peace, and prohibited their circulation, it was the duty of Congress to respect its laws and co-operate in their enforcement; and whilst, therefore, Congress could not prohibit the transmission of the incendiary documents through the mails, it could prevent their delivery by the postmasters in the States where their circulation was forbidden. In the discussion upon the bill reported by him, similar views against the power of Congress were expressed by other Senators, who did not concur in the opinion that the delivery of papers could be prevented when their transmission was permitted."

when not sent as merchandise; but further than this its power of prohibition cannot extend. Whilst regulations exeluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from the parties receiving the letters and packages, or from agents depositing them in the post-office, or others cognizant of the facts. And as to the objectionable printed matter which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts, and, in some cases, by the direct action of the officers of the postal service. In many instances ose officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises and no principle is violated in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by everyone, and is in its nature conclusive. 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."

§ 393 Ex parte Rapier.

In Ex parte Rapier it was again argued that Congress was without the constitutional power to forbid the use of the mails to lottery tickets, circulars, etc., but this time upon the ground that Congress was without the power to declare the lottery itself a criminal enterprise. "Where Congress cannot by direct legislation pronounce a business to be a crime and punish it as such,” 31 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93.

counsel argued, “it is not competent to Congress to determine it to be a crime, and to deprive it of the benefit of the mails for the sole purpose of endeavoring to suppress it." To this the court replied: "The States before the Union was formed could estab lish post-offices and post-roads, 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 post-offices and post-roads 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 or 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. 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 offense 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 petitioners, since it would be for Congress to determine what are within and what 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 it undoubtedly possesses. We cannot regard the right to operate a lottery as a fundamental right infringed by the legis lation 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 abso

lutely 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 matters 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."

§ 394. Power of the States to Exclude from Their Borders Objectionable Mail Matter.

It will be observed that the cases Ex parte Jackson and In re Rapier go no further than to sustain the power of the United States to exclude from the mails matter which it deems objectionable. They do not decide that Congress may permit the sending into a State and the delivery therein of matter considered seditious, immoral, or otherwise objectionable by that State. This point has never been passed upon by the Supreme Court. It has, however, been debated in Congress and there is an opinion of the United States Attorney-General Cushing that Congress has not this power. This opinion declares that while the Federal Government has full control, free from state interference, to regulate the transmission of the mails up to the time of their receipt by the postmaster of the office to which they are directed, the States may, in the exercise of their acknowledged police power, prevent their citizens from receiving incendiary or other matter which they deem objectionable.33

§ 395. States May Not Maintain Postal Agencies.

From the opinion rendered in the Ex parte Jackson and other cases, it would appear that the States are without the power to conduct postal operations over post-roads in competition or conflict with the United States, but that they may permit or themselves provide for, the carrying of letters or merchandise in other ways, as, for instance, by express companies, and this too, with reference to material excluded by Congress from the mails as

32 8 Cushing, Opinions of Atty.-Gen., 489.

33 Cf. Cong. Record, 53d Cong. 2d Sess., Appendix, Pt. I, p. 3 et seq.

immoral, fraudulent, or otherwise objectionable, except, of course, the distribution of matter treasonable to the United States or inciting resistance to its laws may not be authorized, nor may interstate commerce be regulated.

§ 396. Fraud Orders.

In a later chapter dealing with administrative powers will be discussed the extent of the discretionary power that may be granted the Postmaster-General and his agents in excluding matter from the mails under so-called "fraud orders."

§ 397. Protection of the Mails: In Re Debs.

34

In Re Debs was presented the question whether, for the protection of the mails, as well as of interstate commerce, the Federal Government may, by the use of judicial restraining orders or the employment of its armed forces, prevent interference, or whether it is obliged to wait until there has been such interference, and then punish the guilty ones in its courts. The court held that the former as well as the latter means was open to it.35

34 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092.

85"Doubtless, it is within the competency of Congress to prescribe by legislation that any interferences with these matters shall be offenses against the United States, and prosecuted and punished by indictments in the proper courts. But is that the only remedy? Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the question is to answer it. By article 3, section 2, clause 3, of the Federal Constitution it is provided: "The trial of all crimes except in cases of impeachment shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed.' If all the inhabitants of the State, or even a great body of them should combine to obstruct interstate commerce or the transportation of the mails, prosecutions for such offenses had in such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the National Government had no other way to enforce the freedom of interstate commerce and the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State. But there is no such impotency in the National Government. The entire strength of the nation 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 intrusted by

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