FOOTNOTES
1 The Federalist, No. 42.
2 Story, Commentaries on the Constitution, vol. iii, p. 22.
3 Story, Commentaries on the Constitution, vol. iii, p. 26.
4 In Re Debs, 158 U. S. 564 (1895).
5 Hemmeon, The History of the British Post Office, p. 3 ff.
6 Mass. Historical Collections, 3d Series, vol. vii, p. 48; quoted by Mary E. Wooley in her monograph on “Early History of the Colonial Post Office,” Publications of the Rhode Island Historical Society, New Series, vol. i, p. 270 ff.
7 Hemmeon, p. 32; Joyce, The History of the Post Office from its Establishment down to 1836, p. 196.
8 Wooley, Early History of the Colonial Post Office, p. 275; Hemmeon, p. 33. See also Pliny Miles, “History of the Post Office,” American Bankers’ Magazine, n. s., vol. vii, p. 358 (November, 1857).
9 Miles, p. 361.
10 American Archives, Fourth Series, vol. i, pp. 500–504.
11 Ibid., vol. ii, p. 536 ff.
12 See Jameson (Ed.), Essays in Constitutional History, p. 168 ff.
13 Journals of the Continental Congress (edited by Ford), ii, p. 71. (References up to 1781 are to this edition, Washington, 1904.... Since the sixteenth volume, the editor has been Gaillard Hunt.)
14 Ibid., vol. ii, p. 208.
15 Ibid., vol. iii, p. 342; vol. iv, p. 43.
16 Ibid., vol. iii, p. 488. In the discussion referred to Paine remarked that the “ministerial post will die a natural death; it has been under a languishment a great while; it would be cowardice to issue a decree to kill that which is dying; it brought but one letter last time and was obliged to retail newspapers to pay its expenses.” Lee was more facetious, saying: “Is there not a Doctor, Lord North, who can keep this creature alive?” On December 25, 1775, it was announced that incoming mail would not be sent to the various colonies but would be held in New York and advertised.
17 Journals of the Continental Congress, vol. v, pp. 719, 720; vi, p. 926.
18 Ibid., vol. vi, p. 931.
19 Ibid., vol. vii, p. 29.
20 Ibid., p. 153.
21 Journals of the Continental Congress, vol. vii, pp. 258, 347; ix, 816, 817, 898; xi, 550.
22 Ibid., vol. v, p. 551.
23 Ibid., pp. 681, 682; ix, 907. In the second draft the postal clause comes under Article 14 and in the final draft under Article 9.
24 Journals of the Continental Congress, vol. xi, p. 652. The vote stood, Ayes, 2; Noes, 9.
25 Ibid., vol. xv, p. 1411.
26 7 Journals of Congress (Ed. of 1800), 383.
27 7 Journals, 383 ff. Special messengers and expresses were exempted from this provision at the discretion of the postmaster general.
28 8 Journals, 40, 131, 193; 9 Journals, 130.
29 9 Journals, 15, 147.
30 9 Journals (App.), 10.
31 11 Journals, 154, 191.
32 Congress approved the action of the postmaster general in directing his deputies not to receive the paper money of any state for postage, and to accept only specie. He was also authorized to demand payment in advance. 11 Journals, 84, 164.
33 12 Journals, 137.
34 Farrand, Records of the Federal Convention, vol. ii, p. 135.
35 This is the draft as reconstructed by Professor Farrand (vol. iii, pp. 604, 607), but the document sent by Pinckney in 1819 to John Quincy Adams for publication in the journal, omitted the last clause. This draft, however, was written not very long before 1819, and was not presented to the Convention in 1787. See Records, vol. iii, p. 595 ff; “Sketch of Pinckney’s Plan for a Constitution, 1787,” in American Historical Review, vol. ix, p. 735, and Bancroft, History of the Constitution, vol. i, p. 258.
36 Farrand, vol. i, p. 243.
37 Ibid., vol. ii, p. 177
38 Ibid., p. 303. New Hampshire, Connecticut, New Jersey, Pennsylvania and North Carolina were opposed. Rhode Island and New York did not vote. The other states were in favor.
39 Ibid., p. 324.
40 Constitution, Art. I, Sec. 8, Clause 7; Farrand, vol. ii, p. 590.
41 Farrand, vol. ii, p. 615.
42 Farrand, vol. ii, p. 615.
43 The vote on the motion was 8 to 3 (New Hampshire, Connecticut, Massachusetts, New Jersey, Delaware, Maryland, North Carolina, and South Carolina opposed; Pennsylvania, Virginia, Georgia in favor). This incident in the Federal Convention was to figure in the congressional debates over the incorporation of banks and the construction of postroads. Opinions have differed as to whether the action of the Convention may be said to show that the Constitution did not contemplate the exercise by Congress of a power to incorporate. Madison’s record says: “Mr. King thought the power unnecessary.... Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks, he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.” Farrand, vol. iii, p. 615. Madison’s later opinion (1824) was that a general power to incorporate had been negatived. Ibid., p. 463.
44 Jefferson’s Anas in T. J. Randolph, Memoir, Correspondence ... of Thomas Jefferson, vol. iv, p. 506.
45 Pomeroy, Constitutional Law, p. 264.
46 See Brown, The Commercial Power of Congress, p. 132.
47 Elliot’s Debates, vol. ii, p. 406.
48 See Moore, American Eloquence, vol. i, p. 349.
49 Art., “Postoffice,” Lalor, Cyclopaedia of Political Science, vol. iii, p. 310.
50 1 Stat. L. 70.
51 This act was limited to August 12, 1790. On August 4, 1790, it was continued until March 4, 1791; on March 3 until February 20, 1792, when Congress passed “An Act to establish the postoffice and postroads in the United States.” 1 Stat L. 178, 218, 232.
52 For example, Gideon Granger, postmaster general, wrote in 1810: “From the nature of our government it becomes a matter of the highest importance to furnish the citizens with full and correct information, and, independent of political considerations, the interests of society will be best promoted, particularly in the interior, by extending to it the facilities of this office. Nor can the seaboard complain as it puts a profit on all that the interior produces for exportation, and on all it consumes from foreign countries.” American State Papers (Postoffice), vol. xv, p. 42.
53 Williams, The American Postoffice, p. 20 (61st Congress, 2d Sess., Sen. Doc. No. 542).
54 Richardson, Messages and Papers of the Presidents, vol. ii, p. 215.
55 Ibid., p. 311.
56 Ibid., p. 419.
57 Williams, p. 25.
58 2 Stat. L. 592, and 1 Stat. L. 733.
59 Learned, The President’s Cabinet, p. 231. See also U. S. v. Kendall, 5 Cranch (U. S. C. C., 1837), 275.
60 Bassett, Life of Andrew Jackson, vol. ii, p. 413. “... in introducing the postmaster general into the cabinet, Jackson began a practice that probably tended, in the long run, to invigorate the workings of the postal establishment, notwithstanding the fact that Barry, successor to McLean in the office, made a conspicuously dismal record.” Learned, p. 250.
61 Below, Chapter III.
62 See Haney, Congressional History of Railways, p. 319 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. iii).
63 10 Congressional Debates, 1752.
64 Haney, p. 323.
65 48th Cong., 2d Sess., Sen. Exec. Doc. No. 40.
66 16 Stat. L. 115; 17 Stat. L. 309.
67 Haney, p. 206 (Bulletin of the University of Wisconsin: Economic and Political Science Series, vol. vi).
68 23 Stat. L. 156.
69 See Postal Laws and Regulations of 1913, Title X, “Transportation of the Mails,” p. 607 ff.
70 See 43d Cong., 1st Sess., Sen. Rep. No. 478. This point is developed below, p. 151 ff.
71 5 Stat. L. 733.
72 9 Stat. L. 202.
73 10 Stat. L. 38.
74 23 Stat. L. 387. For further details of the special privileges granted periodicals, see Report of the Commission on Second Class Mail Matter (1912), p. 57 ff.
75 37 Stat. L. 557. “That hereafter fourth class mail matter shall embrace all other matter, not now embraced by law, in either the first, second, or third class, not exceeding eleven pounds in weight, or greater in size than seventy-two inches in girth and length combined, nor in form or kind likely to injure the person of any postal employee or damage the mail equipment or other mail matter, and not of a character perishable within a period reasonably required for transportation and delivery” (Sec. 8). These limits have been, and will be, raised from time to time.
76 But see Bodley, “The Post Office Department as a Common Carrier and Bank,” 18 American Law Review, 218 (1884).
77 See Williams, passim.
78 Reports of the Postmaster General, 1841–1845.
79 “It might be easily shown, for instance, that the power over the mails is limited to the transmission of intelligence, and that Congress cannot, consistently with the nature and object of the power, extend it to the ordinary objects of transportation, without a manifest violation of the Constitution, and the assumption of a principle which would give the government control over the general transportation of the country, both by land and water.” Speech of John C. Calhoun. 12 Debates of Congress, 1142. See also 18 American Law Review, 218.
80 13 Stat. L. 76.
81 Report of the Postmaster General, 1864, p. 24.
82 28 Stat. L. 30.
83 See Reports of the Postmaster General, 1908–1911.
84 Postal Laws and Regulations of 1913, Title VIII, “Money Order System,” p. 529 ff.
85 Congressional Globe, 38th Cong., 1st Sess., pp. 1694, 1771, 1861.
86 Act of June 25, 1910; 36 Stat. L. 814. A system had been recommended by postmasters general in 1871–1873, 1880–1882, 1887–1890, 1907–1909. See 61st Cong., 2d Sess., House Rept. No. 1445, and for Mr. Moon’s argument, ibid., Part 2.
87 Wilson v. Shaw, 204 U. S. 24 (1907).
88 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 (1877).
89 Davies, The Collectivist State in the Making, p. 39.
90 Below, Chapter VI.
91 Below, p. 80 ff. See also “The States and their Roads,” N. Y. Nation, August 20, 1914, and Bourne, “Practical Plan to Spend $3,000,000 for Public Roads,” N. Y. Times, May 11, 1913.
92 Annual Reports of the Department of Agriculture, 1914 (Report of the Chief of the Office of Markets).
93 Report of the Postmaster General, 1914, p. 8 ff. See also U. S. Department of Agriculture, Farmers’ Bulletins, inter alia, Nos. 594 and 611, and The National Parcel Post News (Washington), October 7, 1914, and weekly thereafter.
94 S. 5180, 63d Cong., 2d Sess. (April 8, 1914).
95 Wilson, “Uncle Sam; Employment Agent,” The Outlook, February 17, 1915, p. 395.
96 4 Wheat. 316 (1819).
97 See above, p. 19.
98 1 Stat. L. 232.
99 Changed to $50 by the act of May 8, 1794; 1 Stat. L. 354.
100 Changed by the act of March 2, 1799 (1 Stat. L. 733) to forty lashes and ten years imprisonment for the first offense, but death for the second offense, or if the carrier was wounded or his life put in jeopardy. In 1794 (1 Stat. L. 354) the penalty for stealing mail or letters from the postoffice was changed to fine and imprisonment and in 1799 to thirty lashes and two years imprisonment.
101 Act of March 3, 1797; 1 Stat. L. 509.
102 2 Stat. L. 592.
103 Act of March 3, 1825; 4 Stat. L. 122.
104 35 Stat. L. 1088, 1123.
105 “Where a letter carrier left a letter in the hall of the residence of the person to whom it was addressed, and the defendant opened it with intent to pry into the business and secrets of the owner” it was held to be a violation of the provision against taking mail before it reached the addressee, and the principle was laid down that the protection extends until the letters reach their destination by actual delivery to the persons entitled to receive them. U. S. v. McCready, 11 Fed. Rep. 225 (1882), citing U. S. v. Hall, 98 U. S. 343 (1878).
106 Act of August 24, 1912; 37 Stat. L. 554. See below, pp. 121, 164.
107 U. S. v. Wilson, 1 Baldwin (U. S. C. C.), 78 (1830).
108 U. S. v. Pearce, 2 McLean’s C. C. R. 14 (1839).
109 U. S. v. Mills, 7 Peters, 138 (1833).
110 U. S. v. Wood, 3 Wash. C. C. R. 440 (1818). See also U. S. v. Hardyman, 13 Peters, 176 (1839).
111 U. S. v. Thompson, 28 Fed. Cas. 97 (1846). But see “The Postoffice Monopoly,” 11 Law Reporter, 384 (January, 1849). In this paper the writer argues that the idea of a monopoly is not incidental to the postal grant and that the framers did not intend to make the postoffice a source of general revenue. The Constitution enumerates methods of raising funds and Expressio unius, exclusio alterius. Mr. Paterson’s plan as proposed to the Convention named the postoffice as a source of revenue, but his language was rejected. May the same, asks this writer, be said of his theory? (p. 396). And if the federal government has no such power it has no right of espionage and it may not say of what “mailable matter” consists (p. 397).
112 U. S. v. Kochersperger, 26 Fed. Cas. 803 (1860). “In a royal grant of the office of postmaster to foreign parts (July 19, 1632, XIX Rymer’s Foedera, 385) the monopoly is justified by the consideration ‘how much it imports to the state of the King and this realm that the secrets thereof be not disclosed to foreign nations, which cannot be prevented if a promiscuous use of transmitting or taking up of foreign letters and packets should be suffered,’” Freund, Police Power, p. 688, n.
113 Act of March 2, 1827; 4 Stat. L. 238; Niles’ Register, vol. xlvii, p. 120. Until 1827 newspapers could be carried privately, but by the act of this year an express exception hitherto existing was omitted. At the present time, of course, they may be carried outside of the mail. See Postal Laws and Regulations of 1913, p. 605.
114 4 Opinions of the Attorneys General, 349 (1844). If a passenger takes the letters without the knowledge of the carrier, the latter is not liable and no penalty is incurred by the person sending the letters; but if the practice is known by public advertisement the carrier will be liable and also the person employing agents to carry his mail. U. S. v. Hall, 26 Fed. Cas. 75 (1844).
115 U. S. v. U. S. Express Co., 5 Biss. 91 (1869).
116 U. S. v. Bromley, 12 How. 88 (1851). See also 4 Ops. 159 (1843).
117 4 Ops. 162. “By the now settled doctrine of this court” revenue statutes are “not to be construed like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.” U. S. v. Stowell, 133 U. S. 1 (1890).
118 9 Ops. 161 (1858); but see U. S. v. Kochersperger, above.
119 9 Stat. L. 591.
120 U. S. v. Kochersperger, above. While resting its decision on a literal interpretation of the statute, the court intimated that the public streets of a municipality were different from highways, and expressed doubt as to whether they could “be established by Congress as postroads for any other purpose than the carriage of the mail.” See below, p. 151.
121 Act of March 2, 1861; 12 Stat. L. 205.
122 Act of June 8, 1872; 17 Stat. L. 309.
123 Blackham v. Gresham, 16 Fed. Rep. 609 (1883). In 1872, citizens of Davenport, Iowa, were permitted to employ a private dispatch company to deliver within the city limits mail upon which no U. S. postage had been paid; this was allowed because the streets of the city had not been made postroutes. 14 Ops. 152.
124 U. S. v. Easson, 18 Fed. Rep. 590 (1883).
125 Rev. Stat. Sec. 3985; the italicised words were added by the Act of March 4, 1909; 35 Stat. L. 1124. See 21 Ops. 394 (1896); 28 Ops. 537 (1910), and 42 Cong. Rec., 973 ff.
126 21 Ops. 394.
127 29 Ops. 418 (1912).
128 U. S. v. Erie R. Co., 235 U. S. 513 (1915). It was held that the setting up of a post by a railroad car or steamboat was not within the act of 1827. “Since the passing of the postoffice laws new modes of conveyance have been established and a condition of things arisen not then known or contemplated. And the question is, whether new acts in contravention of the general spirit and policy of the laws, can be brought within any of its prohibitions, and subjected to a specific penalty. However willing the court might be to attain that end, it cannot strain or force the language used beyond its fair and usual meaning.” U. S. v. Kimball, 26 Fed. Cas. 782 (1844).
129 U. S. v. Sears, 55 Fed. Rep. 268 (1893).
130 U. S. v. Claypool, 14 Fed. Rep. 127 (1882).
131 U. S. v. Clark, 25 Fed. Cas. 443 (1877); see also In Re Grand Jury, 62 Fed. Rep. 840 (1894).
132 In Re Grand Jury, 62 Fed. Rep. 834 (1894).
133 Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. Rep. 803 (1894); but see U. S. v. Stevens, 27 Fed. Cas. 1312 (1877).
134 U. S. v. Debs, 65 Fed. Rep. 210 (1895).
135 In Re Debs, 158 U. S. 564 (1895). See also Fairlie, National Administration, p. 38; Cleveland, The Government in the Chicago Strike, passim, and 23 McClure’s Magazine, p. 227.
136 2 Stat. L. 592.
137 35 Stat. L. 1131. See Postal Laws and Regulations of 1913, p. 255.
138 Publications which violate copyrights granted by the United States cannot be mailed. In this case the postal power is used to make more effectual legislation which it was competent for Congress to enact. See Postal Laws and Regulations of 1913, p. 264.
139 13 Stat. L. 507; 17 Stat. L. 283, 302.
140 Postal Laws and Regulations of 1913, p. 264.
141 As to when one, who does not personally mail non-mailable matter, may be regarded as causing it to be deposited in the mails, see Demolli v. U. S., 144 Fed. Rep. 363 (1906); 6 L. R. A. n. s. 424, and note. Importation into the United States of obscene matter or articles of an immoral nature was forbidden by the act of March 2, 1857, 11 Stat. L. 168.
142 “For more than thirty years, not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law, we believe, has never been attacked.” Public Clearing House v. Coyne, 194 U. S. 497 (1904), but see Dunlop v. U. S., 165 U. S. 486 (1897), and U. S. v. Popper, 98 Fed. Rep. 423 (1899).
143 U. S. v. Chase, 135 U. S. 255 (1890). The statute applied to any “book, pamphlet, picture, writing, print, or other publication” of an obscene character. R. S. sec. 3893. The prosecution in the Chase case arose before the act of September 26, 1888, which the Court refused to consider, and which extended the inhibition to sealed letters. 25 Stat. L. 496.
144 Grimm v. U. S., 156 U. S. 604 (1895). The Chase case was followed by U. S. v. Wilson, 58 Fed. Rep. 768 (1893), which held that even under the act of 1888 “or other publication” were qualifying words which excluded letters, and by U. S. v. Warner, 59 Fed. Rep. 355 (1894); contra, U. S. v. Nathan, 61 Fed. Rep. 936 (1894), and U. S. v. Ling, 61 Fed. Rep. 1001 (1894). All doubt was removed by Grimm v. U. S.