UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY e Postal Penal Code ilackstone Legal Training Lecture Blackstone Institute, Chicago THE POSTAL PENAL CODE BY HENRY H. JNGERSOLL, M.A., LL.D. LATE DEAN, LAW SCHOOL, UNIVERSITY OF TENNESSEE One of a Series of Lectures Especially Prepared for the Blackstone Institute BLACKSTONE INSTITUTE CHICAGO Copyright, 1919, by Blackstone Institute T In 454 HENRY H. INGERSOLL , HENRY H. INGERSOLL The recent death of Mr. Ingersoll deprived the American Bar of one of its most brilliant members and the state of Tennessee of one of her fore- most citizens. His long career as a lawyer, states- man and educator has made his name familiar throughout the United States. He was born in Oberlin, Ohio, January 20, 1844. He attended Oberlin College and graduated from Yale University in 1863. He studied law in Cin- cinnati and was admitted to the Tennessee bar in 1865. For a number of years Mr. Ingersoll was Assist- ant Attorney General of the State of Tennessee and in 1879 was appointed a judge of the Supreme Court of the state, serving in that capacity until 1880. In 1884 he was appointed a special judge of the Supreme Court. He acted as Dean of the Law Faculty of the University of Tennessee from 1891 up to the time of his death and his faithful service and scholarly mind made the school one of the fore- most educational institutions in the South. Mr. Ingersoll has occupied many positions of honor and trust. In 1887 and 1888 he was Presi- dent of the Tennessee State Bar Association, and from 1907 to 1912 was Vice-President of the American Bar Association. Besides acting as Dean of the University of Tennessee Law School, he was appointed a Trustee of Emory and Henry College and the University of the South. Probably Mr. Ingersoll will be best remembered as an author. He edited "Barton's Suits in Equity"; was the author of "Ingersoll on Public Corporations"; "Municipal Corporations" and "Towns" in Cyc and "Municipal Corporations" in Modern American Law. An experience of fifty years in the legal profes- sion makes Mr. Ingersoll 's writings of intense inter- est to the student of law. His untarnished reputa- tion on the bench, his scholarly accomplishments, and his devotion to the profession which he made his life 's work furnish an illustrious example to the student who aspires to the highest standards of citizenship. THE POSTAL PENAL CODE By HENBY H. INGEESOLL, M.A., LL.D. INTRODUCTION. The sovereign power of the United States ,is no- where more manifest, more pervasive, and more com- plete than in the control of the postal service of our country, supreme as it is not only in the great post offices of the important business centers, and in the big postal railway cars that handle every day millions of letters, cards, and parcels, but also in the smaller post offices of the lesser cities and country towns, in the rural free deliveries to villages and remote settlements, and even. in the horseback mail routes over the mountains and plains. Here we see the importance, the efficiency, and the ubiquity of this omnipresent Federal power! The postal service of the United States reaches to the farthest boundaries thereof, and is intended to serve, and does serve, potentially, every one of the inhabitants. It operates in every state and county and district and town, on the great railway lines, three hundred and sixty-five days in the year, days and nights together, without ceasing, and also in the lesser cities and towns, and through the rural districts every day, Sunday only excepted. Not only does it carry your letters and cards, your little 5 6 BLACKSTONE LEGAL TRAINING LECTURE parcels and books, your newspapers, pamphlets and magazines, but, recently, in addition to things writ- ten, printed and pictured, the Parcel Post has extended the service into a new field, and so effect- ually is it fulfilling its promises, that old express companies which have been serving us for fifty years or more have closed their offices and published to the world that they cannot compete with Uncle Sam. Undoubtedly the outcome of this new business ven- ture by the Federal Government is to be the absorp- tion by the postal service of the express business of the United States. For even now post offices and post roads handle not only the letters, cards, news- papers, magazines, and other written and printed matter, as for a full century they have been doing, but also innumerable small parcels weighing not over fifty pounds and of convenient bulk which people wish to ship short distances to one another; and the great department stores of the cities, in com- pany with many others, already send goods, wares, and merchandise in parcels of twenty pounds to any state of the Union. WHAT IS THE POSTAL PENAL CODE? This great postal system, a service pervasive and perpetual, operated for the public welfare, the Fed- eral Government regulates and protects by a Postal Penal Code, which is Chapter 8 of the United States Penal Code, approved March 4, 1909, and embracing said Code from sections 179 to 231, inclusive. The drawing up of this Postal Penal Code was the last of the measures of President Roosevelt's very active THE POSTAL PENAL CODE 7 administration, and served the purpose of bringing together, revising and codifying the various and complex criminal postal laws of th.e United States, compiling them for the convenient and ready refer- ence of the courts and the legal profession. To a greater extent than any other department of our diversified system of government, the Federal branch is centralized and efficient. It is therefore more generally respected and obeyed. It is the firm conviction of the Federal Government and its officers (and the same should be true of all other branches of government, municipal and state as well as Federal) that laws are enacted to be obeyed and enforced. As a result, the Federal Government commands the especial respect of the people because of its unyield- ing policy in the enforcement, by its officers, of its revenue and postal laws. Comparatively few persons come into personal relation with the revenue laws of the United States, but it is not saying too much to assert that in every year fully one-half the people in the United States, in one way or another, use the postal service. Yet it is probable that not one person in a hundred ever saw or read the Postal Penal Code of the United States, or has any other than the most general notions of what is or might be an offense against the postal service. Knowledge of the Code Important. An American citizen does not require a printed statute to know that it would be unlawful for him to rob a mail carrier, to break into and enter a post 8 BLACKSTONE LEGAL TRAINING LECTURE office, to hold up a postal car, to steal a letter or any matter intrusted to the postal service for carriage and delivery. All these things, and other similar unlawful acts, were offenses at the common law which we have been taught from our childhood to respect and obey. For in a general way it is safe to say that if, by state law, an act is a crime against a fellow citizen's person or property, the same act, if committed against a postal employee, postal prop- erty, or the postal service, is a crime under the Federal law, and anyone who commits such a crime will, inevitably, come into intimate association with a Federal marshal or his deputies. But Uncle Sam protects his postal service by many statutory provisions which are not commonly known and are not within the purview of the common law ; yet a violation of these statutory provisions will subject the offender, whether he knows them or not, to prosecution and consequent acquaintance with the aforesaid Federal marshals. Therefore, it is highly important that all citizens shall have some knowledge of these special laws and of the grounds upon which they rest, lest unintentionally they violate some of these statutory rules which are made for the protec- tion of the great postal service of their country. PROVISIONS AS TO OBSCENE MATTER. Section 211 of the Postal Penal Code is intended to prohibit obscenity in whatever form or method it may be introduced into the mails. Therefore, it for- bids the mailing or conveyance by post or delivery THE POSTAL PENAL CODE S by any carrier or from any post office of all printed matter and publications which are obscene or cal- culated to encourage, stimulate or excite sexual im- propriety or excess. Such prohibited matter is, by said section of the Code, classified as follows: 1. Any obscene, lewd or lascivious writing, print or other publication, and every vile book, pamphlet, picture, paper or letter of an indecent character, and every article or thing designed to prevent con- ception or produce abortion or for any indecent or immoral use; 2. Every article, instrument, substance, drug, or medicine advertised in a manner calculated to invite its use for preventing conception, or producing abor- tion, or for any indecent or Immoral purpose; 3. Every written or printed card, letter, circular, pamphlet or book, telling where or how or from whom or by what means any of these forbidden things or articles may be obtained, or where or by whom an abortion will be performed or attempted, or conception prevented, whether the same is sealed or unsealed; 4. Any letter, packet or package containing any filthy, vile or indecent thing, device or substance; 5. Every paper, writing, advertisement or repre- sentation that any particular instrument or drug may be used or applied to prevent conception or pro- duce abortion; 6. Every description, written or printed, which is calculated to induce or incite a person to use such instrument, drug or medicine so as to effect either of these purposes. 10 BLACKSTONE LEGAL TRAINING LECTURE Purpose of the Provisions. The obvious purpose of all these provisions is to prevent the use of the United States mails in dis- seminating matter designed to corrupt the public morals, or to encourage sexual immorality. Matter has been declared by the courts to be obscene if it even tends toward sexual immorality or licentious conduct. The Federal courts have pronounced a publication obscene although there was but a single sentence of that character in the whole book; also, although there was not even a single sentence or passage of that character, if the general effect and tendency was to excite the sexual desire. Presence of Seal No Defense. It is to be noted that it is unlawful to mail or convey any obscene matter, whether printed or writ- ten, and whether sealed or unsealed. No amount of sealing wax or of postage prepaid can make it lawful to carry obscene matter in the mails. It is also to be observed that it is equally unlawful know- ingly to mail such an article, or knowingly to carry it or convey it in the mails, or knowingly to deli ver or receive it. The person guilty of doing any of these acts is subject to a fine of five thousand dollars, or imprisonment for five years, or both, in the dis- cretion of the court. Grimm's Case, which was tried in St. Louis over twenty years ago and may be found in 156 U. S. 64, well illustrates the danger to any citizen of trifling with these postal statutes intended to prevent the abuse of the mails. Grimm was a photographer THE POSTAL PENAL CODE 11 who advertised fancy pictures for sale at two dollars a dozen, or twelve dollars a hundred. He was in- dicted for placing letters in the post office written to a person at Richmond, Indiana, who had addressed him under an assumed name asking for information about these fancy photographs. This person was a Government detective. When Grimm was indicted he made strenuous defense that his letter did not contain in itself any obscene, lewd or lascivious mat- ter. This was conceded by the court; but, said Justice Brewer, it was intended to convey, and did convey, information as to where fancy pictures could be found and obtained, and for that Grimm was indicted, although the special name or obscene char- acter of the fancy picture was not specified in the letter. As a final defense it was objected that Grimm was induced by the Government, through its detective agent, to write this letter, that he addressed it to a fictitious person, and that a fictitious person could give no information to anyone. The answer of Jus- tice Brewer is in these words: "The law was act- ually violated by the defendant. He placed letters in the post office which conveyed information where obscene matter could be obtained; and he placed them there with a view to give said information to the person who should actually receive those letters, no matter what his name, and the fact that the person who wrote under these assumed names and received his letters was a Government detective in no manner detracts from his guilt." This Grimm Case may well be called a test case 12 BLACKSTONE LEGAL TRAINING LECTURE on this subject of obscenity in the mails, for it has been followed in nearly all the District Courts of the United States during the past twenty years. It shows very plainly the resolution of the Federal courts to enforce this Federal statute according to its plain terms and thus prevent the abuse of the mails by sending through them anything obscene, lewd or lascivious, or, as well defined in one case, " anything having a tendency to excite lustful thoughts and desires." In a Virginia case, one Martin was held guilty, under this statute, for writing a letter to an unmar- ried woman, proposing a clandestine trip to a neigh- boring town to return the following morning, he to pay her expenses and five dollars besides this being an obscene letter within the meaning of the statute because of its obvious purpose to purchase sexual intercourse. There are decisions of the United States courts, rendered more than twenty-five years ago, declaring that no person can be indicted for sending obscene written matter in a sealed envelope. But in the Grimm Case, above referred to, and in the Andrews Case, 162 U. S. 420, the meaning of the Act of Con- gress of 1888 is declared unequivocally by the courts to be that "the mailing of a private, sealed letter" containing obscene matter, in an envelope on which nothing appears but the name and address, is an offense within this statute. In other words, carrying any vile, filthy or obscene matter, whether printed or written, sealed or unsealed, whether plainly ex- pressed or obviously implied, is a criminal act under THE POSTAL PENAL CODE 13 the laws of the United States as now construed and applied, and will subject the guilty person to severe punishment. What Is Considered Obscene? Illustrations of the application of this statute are found in many cases in the Federal Reporter, which show the undoubted tendency of Federal courts to exclude from the mails all filthy and obscene matter, whether sealed or unsealed. Thus in the James Case from the Southern District of California, James was indicted for mailing a newspaper in which was printed an article entitled "Ripe and Unripe Women. " This article described the physical ap- pearance of the "ripe woman " and set forth the writer's expression of the thoughts and passions excited by beholding her; it contained also a descrip- tion in coarse, rude terms of the "unripe woman," referring to unnatural practices and crimes which had caused her immaturity and repulsiveness. The same newspaper also published a drug store's adver- tisements, one of which extolled the merits of a cer- tain remedy for venereal diseases, while another, praising a certain line of goods, was addressed "To the Ladies of the Tenderloin District." This paper was held by the court to contain obscene matter such as was excluded from the mails by the Postal Penal Code, and such as rendered the publisher liable to the penalty of the statute. Another illustrative case of obscenity is presented by the indictment of one Chesman for depositing in the mail a pamphlet entitled "Prof. Harris' New Dis- 14 BLACKSTONE LEGAL TRAINING LECTURE covery for the Radical Cure of Spermatorrhea and Impotency, with the Anatomy and Physiology of the Generative Organs Illustrated and the Science of a Radical Cure." This publication was declared in the indictment to be so indecent that it would be offensive to the court and improper to be placed on the records thereof. Construing a motion to quash this indictment, Judge McCrary said, in responding to the insistence of counsel that the publication was of a medical character and consisted chiefly of ex- tracts from standard medical works: "There are many things contained in standard works which, printed in pamphlet form and spread broadcast in the community by being sent through mails to per- sons of all classes, including boys and girls, would be highly indecent and obscene. " A recent case on what is considered obscene is U. S. v. Kennerly, 209 Fed. Rep. 119. What Is Considered Indecent? In the Davis Case, found in the Federal Reporter, volume 38, page 326, Judge Hammond sustained the verdict of a jury finding a defendant guilty because of his using vulgar language " which shocks the ear and common sense of men as an indecency." At the same time the judge says that the defendant is not guilty under this statute for using the words, "You can order car back, and be damned," for this is only profanity. But still he was inclined to the opinion that the two sentences, "You are sharp, all of you are on the beat," and "Tell that Radical to send my book back as he agreed," were, in this con- nection, opprobrious, scurrilous and defamatory. THE POSTAL PENAL CODE 15 In a similar case there were written upon a postal card the following words: "Mr. Editor: I thought that you was publishing a paper for the Wheel, but I see nothing but rotten democracy. I am a repub- lican and a Wheeler, and you can take your paper and your democracy and go to Hell with it." Judge Hammond declined to instruct the jury peremptorily that this writing was scurrilous, but he left that ques- tion to the jury to decide. The jury found the de- fendant guilty and the verdict was not disturbed by the court. However, it had been previously held by this court that in political campaigns it was not indictable under this Act to use, in regard to per- sons, either in writing or print, the words, "Aboli- tionist," "Black Republican," "Copperhead," " Car- pet-Bagger, " "Scalawag," "Rebel Democracy," "Bourbon," "Mugwump," and "Tariff Robber." In Kentucky, Judge Barr quashed an information under this statute for mailing a postal card contain- ing the following words: "Dear Sir: Your postal card has fully developed you to me as a damned scoundrel and rascal, and I beg that all transactions in a business manner cease between us and no further business relations ever exist." The substance of Judge Barr's decision was that while this postal card might be held as possibly profane, it was cer- tainly not indecent or obscene. PROVISION AS TO DEFAMATORY MATTER. By the same section of the Postal Penal Code which forbids the mailing of obscene matter is also 16 BLACKSTONE LEGAL TRAINING LECTURE forbidden the mailing of matter "defamatory or threatening in its 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. " This offense seems to have given the courts more trouble than the offenses of obscenity and indecency. Purpose of This Provision The postal service is not to be used for the purpose of defaming or slandering or libeling a citizen. It is not to be a vehicle of the hatred, malice or ill-will of any citizen ; and whoever violates this prohibitory clause of the postal laws is punished, just as in the case of mailing obscene matter, by imprisonment for five years, or a fine of five thousand dollars, or both, in the discretion of the court. What Is Not Considered Defamatory? Two cases are illustrative of what the courts con- sider not to be within the provisions of this law. They are the Doran Case, in Minnesota, and the Jar- vis Case, in Washington, reported respectively in 32 and 59 Federal Reporter. Now, the plain purpose of the statute is to forbid only the use of postal cards or envelopes for any defamatory purpose. There is no reference in it to enclosed matter, which has been sealed up. In the Doran Case, the defendant was charged with having deposited in the mail en- velopes and a postal card upon which were the fol- lowing endorsements : THE POSTAL PENAL CODE 17 (Envelope.) Carry me back in due time to The Regu- lator, for publication, 32 South Washington, Minneapolis, Minn. Exhibit A. Persons who want us to collect from Dead Beats should send their accounts to 32 Wash- ington avenue, South, Minneapolis, Minn. Send five cents to in- sure postage for a large letter to the critter. Mr. D. L. Comly, 8th & Jackson Sts., City. (Envelope.) Exhibit B. Return in 10 days to The Collector of Bad Debts, 32 Wash- ington Av., S., Minne- apolis, Minn. I am looking for an Old Bill. The Dead-Beat Col- lector hires me to look them up. (Postal Card.) ( Stamp. ) ( St. Paul, Minn. ) ( July 18, '87. ) ( 3 P. M. ) D. L. Comly, Cor. 8th & Jackson, 9 Corlies, Chapman & Drake. City. Exhibit C. July 18, 1887. Sir: Considering how near you can come to fill the bill, I have decided to post you on all the Dead- Beat lists I know of in the city, and have accordingly given the different agencies a chance at you. F. B. Doran. 18 BLACKSTONE LEGAL TRAINING LECTURE It is not easy for a lawyer, or even an unprofes- sional person, to see how this matter was not calcu- lated, or obviously intended, to reflect injuriously upon the character of the addressee. But Judge Nelson of the Minnesota District heard a petition for habeas corpus which admitted the writing and sending of this card and these envelopes, and dis- charged the petitioner upon the ground that the mailing of these things afforded no ground for crim- inal prosecution ! Must Be Intended to Reflect Injuriously. In the Jarvis Case, the charge was that an envelope was addressed to a certain person and put into the mails upon which, following the name of the person, were the following words: "Room 32, Pease House, Front St., City, The Notorious." A demurrer to the indictment was sustained by Judge Hanford, upon the ground that these words were not obviously intended to reflect injuriously upon the character or conduct of another; for, while " notorious" might possibly have been applied to the addressee, it might also refer to the Pease House or to the city; but even if intended to apply to the addressee, it was still not defamatory, but, on the contrary, might be complimentary, as a "notorious" wit or a "notori- ous" orator or actor. Therefore, the indictment was quashed. In the Elliott Case, 51 Fed. Rep. 807, it was held that a postal card containing a notice that rent was due and unpaid, and, if it was not paid by a certain date the matter would be placed in the hands of an officer, is not defamatory or threatening. THE POSTAL PENAL CODE 19 What Is Considered Defamatory? Yet, in the Vermont District, it was held that it was unlawful to mail a letter enclosed in an envelope on which the words "Excelsior Collection Agency" were printed in very large, full-faced, capital let- ters, occupying more than half the envelope. Also, in the Connecticut District, it was held unlawful to mail a postal card containing the allegations: "You have promised and do not perform. I see very plainly you do not intend to pay any attention to my letters or your debts." It was likewise held unlawful for a collection agency to issue a paper containing on its first page a motto showing that its purpose was to collect debts, and containing a notice warning the public against persons alleged to have failed to pay their debts or asking for information as to such persons. Unlawful also was a postal card mailed by a creditor to his debtor which demanded payment of a note, and added: "You have been fighting time all along. I will garnishee and foreclose. But I dislike to do this if you will be only half -white." Similarity it was held unlawful to mail a postal card demanding payment of a debt, and stating that "if it is not paid at once we shall place the same with our lawyer for collection." These last two rulings were made in Missouri. In Pennsylvania the Federal District Court held that the sending by a collection agency of dunning letters enclosed in black envelopes addressed in white let- ters, the purpose of which was universally known to post office employees, was a violation of this law. 20 BLACKSTONE LEGAL TRAINING LECTURE But it was held in Wisconsin that it was not unlaw- ful to send a dunning letter in an unsealed envelope on which were printed the words, "Mercantile Pro- tection and Collection Bureau," in long primer, French Clarendon type. The gist of this offense seems to be placing upon the outside of envelopes or on postal cards matter calculated and intended to reflect injuriously upon the character of another. The reported cases show that nearly all violations of the law have been in connection with the efforts of creditors to collect from delinquents. PROVISION AS TO FRAUDULENT MATTER. Another section of the Postal Penal Code is directed specially against the use of the mails for the purpose of obtaining money by what is commonly called the "sawdust swindle" or "counterfeit money fraud" or the "green goods business," or by any similar scheme or artifice contrived to defraud per- sons by correspondence. Anyone who operates any of these swindles through the mails by the use of postal card, letter, package, writing, pamphlet, ad- vertisement, or circular, on conviction, may be fined one thousand dollars, or imprisoned for five years, or both. The cases in which persons have been con- victed for this abuse of the postal service are numer- ous, and are scattered far and wide over the United States. Naturally this kind of work is done in the great centers of population, like New York, Chicago, St. Louis, but the cases are not confined to these THE POSTAL PENAL CODE 21 places. A hundred of them at least have found their way into the courts, but a few must suffice for illus- tration. Convictions Under This Provision. Henry's Case was a conviction in South Carolina for violating the statute, and in that case it was decided that every separate letter mailed for this fraudulent business was a distinct offense, and ac- cordingly Henry was convicted and sentenced twice at a single term of court. The next case was a conviction in New York of a fellow calling himself Sigismund Hess, for devis- ing and operating a scheme to defraud, in the course of which he received, through the mail in the city of New York, the following suspicious letter : "Bonilla, D. T., 2,25, '87. "Dr Sir: If there is any money to be made at it, then count me in. Send on all the confidential terms you have, and you will never be betrayed by "Yours truly, " J. M. Davis. "Return this letter." This communication was enclosed in an envelope having the following even more suspicious address : "S. Brunk, Esq., 270 West 40th St., New York City, New York, c/o Boot-Black." Elements of the Crime. Alabama furnishes us with the case of Stokes and eight others, who were found guilty under this section of the Code. It 22 BLACKSTONE LEGAL TRAINING LECTURE was there held that the elements of the crime were (1) a scheme or artifice to defraud, (2) operating the scheme by correspondence through the postal service, and (3) either depositing in or receiving from the mails a letter or packet in furtherance of the scheme. In Durland's Case, which occurred in Pennsyl- vania, were disclosed the scheme and methods of the Provident Bond and Investment Co., whose circulars propounded "a nut for lottery cranks to crack," and showed an -elaborate scheme, to be advertised and disseminated through the mails, to catch " suckers'* who were on the lookout for profit by such methods as this. In that case Justice Brewer declared for the Supreme Court of the United States that this section of the Penal Code was enacted "to protect the public against all intentional efforts to despoil, and to prevent the post office from being used to carry them into effect." These illustrative cases suffice to show the utter abhorrence of the Federal Government for these fraudulent schemes of whatever nature, form and name, and the determination of the courts in enforc- ing the statute to protect the public against all scheming and designing crooks. There is little or no danger of any innocent persons being convicted under this statute, for one could scarcely enter into correspondence with these lottery or "green goods" or counterfeit money crooks without in some degree at least participating in their fraudulent designs to get money from somebody by unfair and rascally means. THE POSTAL PENAL CODE 23 Lotteries. A century ago lotteries were regarded as a very interesting and appropriate means of "taking your chances," and they were operated in nearly every state of the Union. In 1835, General Jackson called the attention of Congress to inflammatory appeals by circulars addressed to the patrons of the slave in the South, tending to incite men to insurrection. It was suggested that Congress pass some act to pre- vent the circulation of such literature through the mails. It is a singular and interesting bit of political history that this suggestion was opposed by Mr. Calhoun in the Senate so vigorously that the act framed for that purpose did not pass that body. The ground of Mr. Calhoun 's opposition was that it was beyond the constitutional power of Congress, of its own discretion or will, to pass such an act as that; that it could only become a part of the Federal law upon the petition or request of some sovereign state ! This history is related and commented upon in Ex parte Jackson, reported in 96 U. S. Reports, in which the decision of the Supreme Court, pronounced by Justice Field, was that "Congress may designate what shall be carried in the mail and what excluded. " This was the beginning of contention which grew in interest and importance during the next fifteen years. During this time the operations of the Louisi- ana Lottery were widely discussed through the press. Finally, in 1890, Congress passed the act forbidding the carriage, by mail, of any letter, circular, card, or print concerning any lottery. It was the mani- 24 BLACKSTONE LEGAL TRAINING LECTURE fest intention of the Government to prevent the Louisiana Lottery or any other scheme of the kind from using the United States mails for the purpose of carrying on its business. Constitutionality of These Code Provisions. Under this statute Dupre was convicted in Louisi- ana, and Rapier in Alabama ; and to test the consti- tutionality of such legislation three distinguished lawyers were employed to bring the cases before the Supreme Court of the United States directly by petition for habeas corpus. They were Mr. James C. Carter, Mr. Thomas Semmes, and Mr. Hamis Taylor. In the Rapier Case, reported in 143 U. S. 110, are found the masterly argument of Mr. Carter against the exercise of this power by Congress, and the force- ful response of Mr. Maury, Assistant Attorney Gen- eral, which is summarized in the following sentence : " Shall Louisiana dominate the Union with this lot- tery? Power to prevent it must exist somewhere. It does exist in the United States, the Government of all, with powers delegated by all, representing all." The preparation of the opinion in this very im- portant case had been committed to Justice Bradley, and had he lived he would doubtless have handed down one of the great constitutional opinions of the Supreme Court of the United States as to the measure of Federal power ; but his illness and death intervened, and as a result there was but a brief announcement, by Chief Justice Fuller, of the con- clusion of the court. Two sentences of its conclu- THE POSTAL PENAL CODE 25 sion are significant in this connection: "We cannot regard the right to operate a lottery as a funda- mental 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 pro- hibited, but the Government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people." In the noted Homer Case, which came before the Supreme Court of the United States twice on a peti- tion for habeas corpus (143 U. S. 570), and on an indictment for abuse of the postal service by send- ing a lottery letter and circular through the mails (147 U. S. 449), defendant was a Wall Street broker, who undertook to obtain in America subscriptions to a loan by the Austrian government. The scheme was peculiar and designed to be attractive and invit- ing to the citizens of the United States, who were to be induced thereby to invest their money in these foreign securities. But the -Supreme Court declared it was nothing more or less than a lottery scheme and therefore was prohibited by our Postal Penal Code. To quote the words of the Court, Austria "under- took to assist her credit by an appeal to the cupidity of those who had money, and offered to each holder of a bond a chance of obtaining a prize dependent upon the law of chance." Therefore the scheme was a lottery, although promoted by a great foreign empire; and no more consideration could be given to it than to the lottery of the state of Louisiana. So Homer, the Wall Street broker, was mulcted in 26 BLACKSTONE LEGAL TRAINING LECTURE a fine of one hundred dollars for engaging in this international lottery. The Code Is Authoritative and Effectively En- forced. From these cases and other similar ones it may be seen that the authority of the United States to prevent contamination of its postal service by the introduction of immoral, obscene and unlawful circulars or letters is unquestioned. It is simply the exercise of the police power of the sovereign in the all-important governmental function of the postal service. That which Uncle Sam says shall not be carried through the mails then must be trans- ported by some kind of private service. It will not be a difficult matter, of course, to ship circulars or pamphlets or advertisements as freight in bulk ; but the distribution of them to individuals will be found a matter of no little difficulty, since no branch or feature of the postal service may be used for that purpose. Furthermore the Postal Penal Code forbids any person to establish any private express service for the conveyance of letters or books by regular trips or at stated periods. Under this statute the Hussey Express, which maintained a corps of messengers employed to collect letters daily from its customers (who had been provided with private stamps sold beforehand for that pur- pose) and to take the letters, as collected, to the cen- tral office, where they were sorted and distributed to the addresses, was engaged in an unlawful postal service, and one of its carriers was convicted in New York of a breach of this part of the postal laws. THE POSTAL PENAL CODE 27 PROVISION AGAINST OBSTRUCTION OF MAIL SERVICE. Another offense against the postal service is ob- structing the mail or any mail carrier, whether he be on foot or horseback, in buggy, boat or car. This offense may be punished by imprisonment, or fine, or both. The cases upon this subject which are re- ported are interesting and varied in their character. The earliest one to be noticed comes from the state of Kentucky, wherein one Kirby, a sheriff of Gallatin County, in 1866, was indicted, together with his posse, for going upon the steamboat, "General Buell," then carrying mail between Louisville and Cincinnati, and there arresting one Farris, a carrier of the mail, upon a bench warrant charging him with murder in the first degree ! In these days it would be astonishing that a grand jury could be empaneled in any part of our coun- try who had no better sense than to indict an officer for the performance of his sworn public duty ! But the event referred to occurred back in the days when sectional feeling ran high, when they were passing the Freedmen's Bureau Bill and Civil Rights Bills and Military State Government Bills, and when the more radical members of Congress impeached President Johnson for exercising his lawful powers and authority as President of the United States ! The case was certified to the Supreme Court upon the question whether the arrest, under the circum- stances, was an obstruction of the mail. Justice Field delivered the opinion of the court as follows: " There can be but one answer, in our judgment, to 28 BLACKSTONE LEGAL TRAINING LECTURE the question certified to us. The Act of Congress which punishes the obstruction or retarding of the passage of the mail or of the mail carrier does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indict- ment for murder." What Constitutes Obstruction? The next case was an indictment against two twelve-year-old boys who had obstructed the track of the Wheeling Railway running along the streets and down the river to Benwood. It seems that a strike of laborers was on at the time, and these boys, in answer to the demonstrations of the citizens against their obstructing the track, said: "We want to win the strike." To aid further in accomplishing this purpose, they had thrown stones and clubs and missiles at employees when they were removing the obstructions. These boys, though but twelve years old, were convicted because of their intelligent ex- pression of conditions and their resolution to sup- port the workmen who were carrying on the strike. The Debs Case. Another case in point is one of national interest, occurring twenty years ago, and known as the Debs Case, in which the petitioner Debs was represented by Judge Lyman Trumbull of Chicago, a statesman and lawyer of national repute, and the United States by Attorney General Olney, also a lawyer of rare ability and distinction. The case arose not upon an indictment or information, but under a bill in equity with an injunction obtained by the United States, upon petition of its Attorney THE POSTAL PENAL CODE 29 General to prevent the defendants, being a combina- tion and conspiracy therefor, from obstructing and preventing the interstate transportation of persons and property and the carriage of the mails. The strikers refused to obey the injunction and main- tained their attitude of defiance toward the court and the United States. Thereupon, under an order to show cause why they should not be punished for violation and defiance of the injunction, Debs and his associates were arrested, and failing to show any sufficient cause to the contrary, they were sentenced to jail for six months as a punishment for their defiance of the authority of the court. They there- upon brought a petition for habeas corpus, alleging their unlawful arrest and confinement, and the mat- ter was considered by the Supreme Court after elaborate arguments. Jurisdiction of Federal Government Extends Over Every Foot of Soil. Mr. Justice Brewer pronounced the opinion of the court to the effect that the Govern- ment of the United States has jurisdiction over every foot of soil within its territory and acts directly upon every citizen within the limits of its powers, which include regulation of interstate commerce and trans- mission of the mails; that in the exercise of those powers the United States may remove obstructions put upon highways, natural or artificial, to block the passage of interstate commerce or the carrying of the mails; and that, consequently, the court had the right to punish those who, in disobedience of its power and defiance of its process, undertook to stop or obstruct the carriage of the mails. 30 BLACKSTONE LEGAL TRAINING LECTURE CONCLUSION. It is not within the scope of this Talk to give all the regulations of the Post Office Department in relation to the mails. The Code provisions and other department rules as to the manner in which any par- ticular matter must be shipped, also full information concerning any questions confronting any individual, can easily be secured by application to postmasters or their assistants. Nor is it intended to assist in any way those who may desire to trespass as far as possible without being convicted. It has, how r ever, been attempted to discuss the authority of the Federal Government over the mail service, and the penal provisions which have been passed in regard to this service, and how these are construed and enforced. The cases cited point out the principal matters to keep in mind, such as: the danger of interfering with the mails during strikes and labor disturbances, the inadvisability of sending duns on postal cards, the care which must be exer- cised not to express one's opinion too freely through the mails, and the absolute prohibition against post- ing anything of an immoral nature even under seal. These are rules which it is evident are usually very poorly understood. A knowledge of them is imperative to a proper compliance with the Postal Penal Code, and to avoidance of too intimate asso- ciation with Federal marshals and their deputies. \y*y /<>// I GAYlAMOUNflT" '.PAMPHLET BINDER Syracuse, N.Y. I Stockton, Calif. I