283 The Federalist, No. 84. In a footnote Hamilton scouts the idea that the liberty of the press may be affected by duties on publications which might be “so high as to amount to a prohibition.... We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country.” The extent of duties, if levied, “must depend on legislative discretion, regulated by public opinion.... It would be quite as significant to declare that the government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.” Newspapers were in fact taxed during the Civil War, and revenue to the amount of $980,089 was raised by this means. Lalor, Encyclopaedia of Political Science, (Art., “Press”), vol. iii, 321.
Commenting upon Hamilton’s position, Story remarked: “The want of a bill of rights then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, ought not to receive this solemn sanction.” Story, Commentaries, vol. iii, p. 721.
284 Annals of 1st Congress, vol. i, p. 434.
285 Elliot’s Debates, vol. ii, p. 552; vol. iii, 659; Thorpe, Constitutional History, vol. ii, 204.
286 Cooley’s Blackstone, Book iv, pp. 151, 152. Lord Kenyon’s view was practically the same. He said: “A man may publish anything which twelve of his countrymen think is not blamable, but he ought to be punished if he publishes what is blamable.” Rex v. Cuthill, 27 St. Trials, 675. Cf. Professor Dicey’s classic statement: “Freedom of discussion is, then, in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.” Law of the Constitution (8th ed.), p. 242.
287 3 Johns. Cas. (N. Y.) 337 (1798); Hamilton’s Works (Lodge’s Ed.), vol. vii, p. 339. See the able analysis of Hamilton’s definition by Professor Schofield, “Freedom of the Press in the United States,” in Proceedings of the American Sociological Society, vol. ix, p. 67, at p. 88 ff. (1915).
288 Story, Commentaries, vol. iii, p. 732. To the same effect is Kent, Commentaries, vol. ii, lec. 24. A different contention, however, seems to have been made by Tucker, Blackstone’s Commentaries, vol. ii, App., Note G, pp. 11–30.
289 These cases will be considered later in this chapter.
290 Patterson v. Colorado, 205 U. S. 458 (1907). But see Mr. Justice Harlan’s dissent, Professor Schofield’s criticism of the majority opinion (Freedom of the Press in the United States, pp. 110–112), and Respublica v. Oswald, 1 Dall. 319 (1788). In U. S. v. Cruikshank, 92 U. S. 542 (1876), the court held: “The First Amendment to the Constitution ... like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the state governments in respect to their own citizens, but to operate upon the national government alone. ‘The scope and application of these amendments are no longer subjects of discussion here,’ They left the authority of the states just where they found it, and added nothing to the already existing powers of the United States.”
Professor Schofield is of the opinion that the Slaughter House Cases, 16 Wall. 36 (1872), are authority for the principle that “the right to publish truth on matters of national public concern is one of the privileges and immunities of citizens of the United States protected from abridgment by any state by the first prohibition in the Fourteenth Amendment.” Freedom of the Press in the United States, p. 113. It was held in U. S. v. Hall, 26 Fed. Cas. 79 (1871), that “the right of freedom of speech, and other rights enumerated in the first eight articles of amendment to the Constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the Constitution, that Congress has the power to protect them by appropriate legislation.” See Lien, Privileges and Immunities of Citizens of the United States, p. 69. The Supreme Court in Patterson v. Colorado, above, refused to decide whether the liberty of the press declared in the First Amendment, is included by the word “liberty” in the Fourteenth Amendment. These questions, however, are outside the purview of the present discussion.
291 Patterson, Liberty of the Press, Speech and Public Worship, p. 61 ff.; 2 Willoughby on the Constitution, 844; and Townshend, Slander and Libel, 2d ed., sec. 252.
292 Schofield, Freedom of the Press in the United States, pp. 78, 79 and 110.
293 The freedom of the press had, of course, figured in the discussion of the so-called Sedition Act passed by Congress on July 14, 1798. It was a factor also in the consideration by the Senate (December, 1901) of legislation “to prevent the teaching and promulgation of anarchical doctrines in the United States.” See my paper, “Federal Interference with the Freedom of the Press,” 23 Yale Law Journal, 559 and authorities there cited.
294 Niles’ Register, vol. xlviii, p. 402.
295 Ibid., p. 403.
296 See Hurd, Law of Freedom and Bondage, vol. ii, 9, 10, 86, 97, 99, 147, 161, 170, 173. The Virginia law specifically included postmasters within its provisions. One indictment under the Alabama law was based upon the following objectionable language: “God commands, and all nature cries out, that man should not be held as property. The system of making men property has plunged 2,250,000 of our fellow countrymen into the deepest physical and moral degradation, and they are every moment sinking deeper.” Niles’ Register, vol. xlix, p. 358.
297 Niles’ Register, vol. xlviii, p. 447.
298 Niles’ Register, vol. xlviii, p. 448.
299 The legal aspects of this solution of the problem will be treated in the chapter following.
300 Statesman’s Manual, vol. ii, p. 911.
301 12 Debates of Congress, 26, 33.
302 Calhoun had for some time been interested in the problem, his attitude being indicated in September, when he wrote to the editor of the Washington Telegraph: “The indications are that the south will be unanimous in their resistance and that their resistance will be of the most determined character, even to the extent of disunion; if that should be necessary to arrest the evil. I trust, however, it may be arrested far short of such extremity.” Niles’ Register, vol. xlix, 49.
303 12 Debates of Congress, 383; Calhoun’s Works, vol. v, p. 191.
304 1 Stat. L. 596.
305 Italics are mine.
306 The subject has been given very adequate treatment by Mr. Henry Wolfe Bilké in his paper on “The Jurisdiction of the United States over Seditious Libel,” 50 American Law Register, 1. Mr. Bilké says: “The power to punish, for seditious libel, it is submitted, results to the United States, first from its inherent right to adopt such measures as are necessary for its self-preservation, and second, from its right to adopt such measures as are necessary to secure its officers in the due administration of their duties.” While it is the better view that Congress has no powers inherent in sovereignty (see 1 Willoughby on the Constitution, 66), the Supreme Court apparently rested its decisions in the Chinese Exclusion Cases [sub. nom. Chae Chan Ping v. U. S., 130 U. S. 581 (1888), and especially Fong Yue Ting v. U. S., 149 U. S. 698 (1892)] on a contrary theory. These cases furnish the authority for the first conclusion just quoted, while the case of In Re Neagle, 135 U. S. 1 (1889), is made the basis for the second reason why it is within the power of the United States to punish sedition. At the time of the passage of the act, it had not yet been decided that the federal courts possessed no common law criminal jurisdiction. U. S. v. Hudson & Goodwin, 7 Cranch 32 (1812). The Federalists maintained that such jurisdiction did exist, and that since sedition was a common law offence, Congress could make it statutory and thus aid the courts in its punishment.
307 Patterson, Liberty of the Press, etc., p. 61. Professor Schofield is of the opinion (Freedom of the Press in the United States, p. 87) that “Liberty of the Press as declared in the First Amendment and the English common-law crime of sedition cannot co-exist”; but certain it is, that without impairing the freedom of the press, Congress may punish seditious utterances counseling the use of force or unlawful means, and falsely defaming public officials.
308 The weight of authority upholds this view. See Bilké, op. cit.; 2 Willoughby on the Constitution, 845; Von Holst (Constitutional History, vol. i, 142) considers the law “unquestionably unconstitutional” and this opinion is supported by 2 Tucker on the Constitution, 669. Story (Commentaries, vol. iii, 744) declines to commit himself, but intimates that the law was valid. The chief objection, as I have said, was to the very broad terms of the act.
309 12 Debates of Congress, 383. Postmasters were further enjoined “to coöperate, as far as may be, to prevent the circulation of any pamphlet” where it was forbidden by local laws.
310 Ex parte Jackson and Lewis Publishing Co. v. Morgan.
311 12 Debates of Congress, 1721.
312 Ibid., 1728.
313 12 Debates of Congress, 1724.
314 Ibid., 1149. As a matter of fact practically all of the state constitutions contained provisions guaranteeing the freedom of the press. There was, however, liability for abuse in Maine, Connecticut, New York, Pennsylvania, Delaware, Kentucky, Tennessee, Indiana, Illinois, Ohio, Mississippi, Alabama and Missouri. The other constitutions gave unrestricted freedom, subject, of course, to the common law exceptions. See Niles’ Register, vol. xlix, 236.
315 12 Debates of Congress, 1103.
316 Ibid., 1124. The House Committee on Postoffices and Postroads had the President’s message under consideration and “came to the conclusion by a vote of 6 to 3, in favor of the constitutionality and expediency of legislation, to restrain the mail circulation of these publications.” The majority, however, was unable to agree upon a bill. Ibid., 2944.
317 12 Debates of Congress, 1721. The analogy is noticeable between Calhoun’s bill and the Webb-Kenyon Act. The purpose of each was substantially the same,—to make state laws more effective. The latter simply excludes from interstate commerce intoxicating liquor intended to be used in violation of the law of destination, providing no penalties, and merely taking from the offender, when the state attempts to punish, his hitherto valid defense that the local authority was interfering with interstate commerce. See my papers, 1 California Law Review, 499 and 28 Harvard Law Review, 225.
318 Hoke v. U. S., 227 U. S. 308 (1913).
319 1 Stat. L. 73.
320 Golden v. Prince, 10 Fed. Cas. 542 (1814).
321 Cooley v. Port Wardens, 12 How. 299 (1851).
322 Act of Feb. 28, 1803; 2 Stat. L. 295.
323 Brig Wilson, 1 Brockenborough, 423 (1820).
324 Act of August 19, 1911; 37 Stat. L. 25.
325 Ex parte Siebold, 100 U. S. 371 (1879).
326 Hanover Bank v. Moyses, 186 U. S. 181 (1902).
328 Ex parte Jackson, 96 U. S. 733 (1878); italics are mine.
329 In re Rapier, 143 U. S. 110 (1892); 26 Stat. L. 465.
330 Champion v. Ames, 188 U. S. 321 (1902). See Goodnow, Social Reform and the Constitution, p. 83, and 2 Willoughby on the Constitution, 741. A flatfooted declaration that the liberty of the press is subject to police regulations concerning what is to be carried in the mails, would, I think, have been justifiable. But the holding of the Jackson case is different.
331 Schofield, Freedom of the Press in the United States, p. 82.
332 60th Cong., 1st Sess., Senate Doc. No. 426. The paper in question was undoubtedly anarchistic in its tendencies and certain of its sentiments were seditious libels. One editorial, for instance, contained the following:
“Dynamite will help us to win. Two or three of us can deny a regiment of soldiers without fear.... Show no sympathy for any soldiers, even if they be sons of the people. As soon as we get hold of the police station, it is our victory. The thing is to kill the entire force.... We must get into the armory, and in case we cannot, then we will blow it down with dynamite.... We must set fire to three or four buildings in different locations ... and then start a fire in the center of the city.”
333 34 Stat. L. 908.
334 Rev. Stat. Secs. 3890, 5471. But is this illustration on all fours with the question of illegally excluding La Questione Sociale? Mr. Bonaparte mentions the fact that while the article “constitutes a seditious libel and its publication, in my opinion, is undoubtedly a crime at common law,” it is not an “offense against the United States in the absence of some federal statute making it one.” U. S. v. Hudson & Goodwin, 7 Cranch 32 (1812).
335 Act of March 4, 1911; 36 Stat. L. 1339.
336 In U. S. ex rel. Turner v. Williams, 194 U. S. 279 (1904), the Supreme Court held that the provisions of the immigration act of 1903 (32 Stat L. 1213) for the exclusion and deportation of alien anarchists did not violate any constitutional limitations and that the freedom of the press was not involved. “If the word ‘anarchists’ should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers innocent of evil intent, ... in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposed to all organized government.”
337 37 Stat. L. 553.
338 Lewis Publishing Company v. Morgan, 229 U. S. 288 (1913). Brief of Morris and Plante, p. 41.
339 Lewis Publishing Company v. Morgan, above. Another and more significant phase of this important case is treated in the last chapter of this study.
340 For an historical consideration of this amendment, see Boyd v. U. S., 116 U. S. 616 (1886). See also May, Constitutional History of England, vol. ii, p. 245 ff.; Cooley’s Blackstone, Book iv, p. 290 ff.; Annals of 1st Congress, vol. i, pp. 434, 754, and Story, Commentaries, vol. iii, p. 748. Discussions of the general scope of the provision are to be found in 2 Willoughby on the Constitution, 828; Cooley, Constitutional Limitations (7th ed.), p. 429, and Bruce, “Arbitrary Searches and Seizures as Applied to Modern Industry.” Green Bag, vol. xviii, p. 273.
341 Ex parte Jackson, 96 U. S. 727 (1878).
342 Ibid. But see Hoover v. McChesney, 81 Fed. Rep. 472 (1897).
343 25 Stat. L. 873.
344 Postal Laws and Regulations of 1913, p. 300.
345 Ibid., p. 313.
346 35 Stat. L. 1125.
347 Postal Laws and Regulations of 1913, p. 372 ff.
348 A third limitation on the postal power, namely, due process of law, is most properly treated in the concluding chapter of this essay.
349 Act of February 28, 1803, 2 Stat. L. 295; Brig Wilson, 1 Brockenborough 423 (1820).
350 32 Stat. L. 193; U. S. v. Green, 137 Fed. Rep. 179 (1905).
351 Criminal Code, sec. 242; Rupert v. U. S., 181 Fed. Rep. 87 (1910).
352 Act of August 8, 1890, 26 Stat. L. 313 (Wilson Act); Act of March 1, 1913, 37 Stat. L. 699 (Webb-Kenyon Act).
353 See 2 Willoughby, ch. xlii, and cases there cited.
354 There is also the question of state power over postroads, but this has been treated in Chapter III, above, p. 82 ff.
355 Miscellaneous State Papers, vol. ii (American State Papers, vol. xxi), p. 194.
356 American State Papers (Postoffice), vol. xv, p. 47.
357 2 Stat. L. 592.
358 4 Stat. L. 102.
359 American State Papers (Postoffice), vol. xv, p. 211. For the lengthy memorials presented, see ibid., pp. 229–241.
360 Ibid., p. 231.
361 Freund, Police Power, p. 168 ff.
362 American State Papers (Postoffice), vol. xv, p. 230. See an interesting article on this subject in the North American Review, July, 1830.
363 American State Papers (Postoffice), vol. xv, p. 358.
364 163 U. S. 299 (1896). “... legislative enactments of the states passed under their admitted police power, and having a real relation to the domestic peace, order, health and safety of their people, but which, by their necessary operation, affect to some extent, or for a limited time, the conduct of commerce among the states, are yet not invalid by force alone of the grant of power to Congress to regulate such commerce, if not obnoxious to some other constitutional provision or destructive of some right secured by fundamental law....”
365 Nelson v. State, 25 Texas App. 599 (1888). In some states express exemptions are made for the transportation of the mail. Cf. State v. Norfolk & W. R. Co., 33 W. Va. 440 (1890). A typical Sunday observance statute is the following: “No person whatsoever shall work or do any bodily labor on the Lord’s day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord’s day (works of necessity and charity always excepted)” (Public General Laws of Maryland (ed. of 1904), art. xxvii, sec. 384). The general proposition that the state regulations do not apply to postal employees is supported by Commonwealth v. Knox, 6 Mass. 76 (1809), which held that it is not an indictable offence for a carrier of the mail to travel on Sunday. This exemption was not applied to passengers, “nor may he [the carrier] blow his horn to the disturbance of serious people.” An indictment did lie, however, against the chief justice of Massachusetts and his associates for travelling on Sunday (1793). See “Sunday Laws,” in 2 American Law Review, 226.
366 U. S. v. Hart, 1 Peters’ C. C. 390 (1817).
367 5 Opinions of the Attorneys General, 554 (1852).
368 Illinois Central R. Co. v. Illinois, 163 U. S. 142 (1896). See also 143 Ill. 434; 19 L. R. A. 119 (1892).
369 Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 (1906). See also Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328 (1907).
370 U. S. v. Barney, 3 Hughes’ Reports (U. S. C. C) 545 (1810).
371 U. S. v. Harvey, 8 Law Reporter, 77 (U. S. C. C., 1845).
372 U. S. v. Kirby, 7 Wall. 482 (1869); see also U. S. v. Clark, 23 Int. Rev. Rec. 306 (U. S. D. C., 1877).
373 Penny v. Walker, 64 Maine 430 (1874).
374 U. S. v. McCracken, 3 Hughes’ Reports (U. S. C. C.) 544 (1878).
375 Harmon v. Moore, 59 Me. 428 (1871).
376 Lathrop v. Middleton, 23 Cal. 257 (1863). In this case, however, the boat was at the time in an unfinished condition and had not been used on the ferry.
377 3 Fed. Rep. 478 (1880).
378 United States v. Sears, 55 Fed. Rep. 268 (1893). In Turnpike Co. v. Newland, 15 N. C. 463 (1834), it was held that a mail coach was a “pleasure carriage” within the meaning of the local statute imposing tolls for the use of the road. The use of state facilities by persons employed in the federal civil service, said the court, “must be deemed intended to be on the terms prescribed to all persons, unless the law under which it is performed declared the contrary. We have found no act of Congress exempting persons or carriages engaged in the business of the postoffice from the payment of tolls for passing ferries, bridges or roads.” Payment was, therefore, required.
379 The seriousness of this conflict was well expressed by Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton 264 (1821). “To interfere with the penal laws of a state,” he said, “where they are not levelled against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure which Congress cannot be disposed to adopt lightly or inconsiderately. The motives for it must be serious and weighty. It would then be taken deliberately and the intention would be clearly and unequivocally expressed.”
380 See above, Chapter IV.
381 Hurd, Law of Freedom and Bondage, vol. ii, pp. 9, 10.
382 See above, p. 105.
383 Niles’ Register, vol. xlviii, p. 446. The Richmond resolutions were less elaborate, simply requesting the postmaster general “to use all powers vested in him by law” to prevent the dissemination and delivery of the objectionable matter.
384 Niles’ Register, vol. xlix, p. 7.
385 Niles’ Register, vol. xlix, p. 9.
386 8 Opinions of the Attorneys General, 489 (1857); 5 Stat. L. 80.
387 Mr. Cushing argued (p. 494) that “it cannot be unlawful to detain that which it is unlawful to deliver.” But the word “unlawful” in the congressional statute is not to be construed according to state regulations. Whether the detention of the mail is sanctioned must be determined by state standards.
388 26 Cong. Rec., Part 9, Appendix, Part I, p. 4 ff. (53d Cong., 2d Sess.).
389 Act of March 2, 1833 (4 Stat. L. 632).
390 Ex parte Siebold, 100 U. S. 371 (1879). See also Tennessee v. Davis, 100 U. S. 257 (1879), and 1 Willoughby on the Constitution, 124.
391 Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 (1888).
392 See, inter alia, Leisy v. Hardin, 135 U. S. 100 (1890), and Rhodes v. Iowa, 170 U. S. 412 (1897).
393 This is the theory of the Webb-Kenyon Act. See my papers, “The Power of the States over Commodities Excluded by Congress from Interstate Commerce,” 24 Yale Law Journal, 567 (May, 1915), and “State Legislation under the Webb-Kenyon Act.” 28 Harvard Law Review, 225 (January, 1915).
394 See the reasoning in State v. Delaye, 68 So. 993 (Ala., 1915).
395 West Virginia v. Adams Express Co., 219 Fed. Rep. 794 (1915).
396 1 N. Y. 173 (1848).
397 Hayner v. State, 83 Ohio St. 178 (1910). See also Zinn v. State, 83 Ark. 273, 114 S. W. 227 (1908).
398 U. S. v. Thayer, 209 U. S. 39 (1908), and In re Palliser, 136 U. S. 257 (1890).
399 37 Stat. L. 699. For a further discussion of this point see my paper, “Unlawful Possession of Intoxicating Liquors and the Webb-Kenyon Act,” 16 Columbia Law Review, 1 (1916).
400 133 Ga. 353, 65 S. E. 770, 36 L. R. A. (n. s.) 443 (1909), and note, which says that the case is one primae impressionis. It should be said that the decision in the Court of Appeals was contra. See 4 Ga. App. 588, 62 S. E. 117 (1908).
401 In re Rapier, 143 U. S. no (1892).
402 To make the record complete it should be added that the federal courts have exclusive jurisdiction of all offenses embraced by statute, committed in a postoffice owned by the United States or jurisdiction over which has been ceded by the state. Battle v. U. S., 209 U. S. 36 (1908). But the fact that a train is engaged exclusively in carrying the United States mail does not preclude the jurisdiction of a state court of a prosecution for the murder of an engineer, committed by derailing the train. Crossley v. California, 168 U. S. 640 (1898).
403 The Roosevelt Policy, vol. ii, p. 486. In his Provincetown address (August 20, 1907) President Roosevelt returned to the same theme, saying: “I believe, furthermore, that the need for action is most pressing as regards those corporations which, because they are common carriers, exercise a quasi-public function; and which can be completely controlled, in all respects, by the federal government by the exercise of the power conferred under the interstate commerce clause, and, if necessary, under the post-road clause of the Constitution.” Ibid., p. 564.