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

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

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

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

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

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

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

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

153 See below, p. 158 ff.

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

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

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

157 R. S. sec. 3894.

158 19 Stat. L. 90.

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

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

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

162 8 Howard, 164 (1850).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

180 1 Stat. L. 233.

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

182 1 Stat. L. 251.

183 Richardson, vol. i, p. 66.

184 Ibid., pp. 83, 107.

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

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

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

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

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

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

191 Young, The Cumberland Road, 21.

192 Laws of Maryland, 1802–1804, ch. 115.

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

194 2 Stat. L. 397, 516.

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

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

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

198 2 Stat. L. 357, 397.

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

200 The Federalist, No. 14.

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

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

203 Richardson, vol. i, p. 567.

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

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

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

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

208 See below, p. 75.

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

210 Ibid., pp. 177, 191.

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

212 Richardson, vol. i, p. 585.

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

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

215 Richardson, vol. ii, p. 18.

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

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

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

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

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

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

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

223 See above, p. 67.

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

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

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

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

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

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

230 Richardson, vol. ii, p. 281.

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

232 Richardson, vol. ii, p. 452.

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

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

235 12 Stat. L. 334.

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

237 37 Stat. L. 552.

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

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

240 Richardson, vol. ii, p. 555.

241 4 Wheat. 316 (1819).

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

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

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

245 Ibid., p. 205.

246 Ibid., p. 272.

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

248 Young, The Cumberland Road, p. 79.

249 Laws of Pennsylvania, 1827–28, p. 500.

250 Richardson, vol. ii, p. 217.

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

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

253 Laws of Maryland, 1831–1832, ch. 55.

254 13 Congressional Debates, 1132.

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

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

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

258 Young, The Cumberland Road, p. 87.

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

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

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

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

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

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

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

266 13 Stat. L. 365.

267 15 Stat. L. 124.

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

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

270 5 Stat. L. 283.

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

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

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

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

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

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

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

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

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

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

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

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