1. The power vested in Congress to establish "post offices and
post roads" embraces the regulation of the entire postal system of
the country. Under it, Congress may designate what shall be carried
in the mail and what excluded.
2. In the enforcement of regulations excluding matter from the
mail, a distinction is to be made between what is intended to be
kept free from inspection, such as letters and sealed packages
subject to letter postage, and what is open to inspection, such as
newspapers, magazines, pamphlets, and other printed matter
purposefully left in a condition to be examined.
3. Letters and sealed packages subject to letter postage in the
mail can be opened and examined only under like warrant, issued
upon similar oath or affirmation, particularly describing the thing
to be seized, as is required when papers are subjected to search in
one's own household. The constitutional guaranty of the right of
the people to be secure in their papers against unreasonable
searches and seizures extends to their papers, thus closed against
inspection, wherever they may be.
4. Regulations against transporting in the mail printed matter
which is open to examination cannot be enforced so as to interfere
in any manner with the freedom of the press. Liberty of circulating
is essential to that freedom. When, therefore, printed matter is
excluded from the mail, its transportation in any other was as
merchandise cannot be forbidden by Congress.
5. Regulations excluding matter from the mail may be enforced
through the courts, upon competent evidence of their violation
obtained in other ways than by unlawful inspection of letters and
sealed packages; and with respect to objectionable printed matter,
open to examination, they may in some cases also be enforced by the
direct action of the officers of the postal service upon their own
inspection, as where the object is exposed, and shows unmistakably
that it is prohibited, as in the case of an obscene picture or
print.
6. When a party is convicted of an offence and sentenced to pay
a fine, it is within the discretion of the court to order his
imprisonment until the fine shall be paid.
Page 96 U. S. 728
Section 3894 of the Revised Statutes provides that
"No letter or circular concerning illegal lotteries, so-called
gift-concerts, or other similar enterprises offering prizes, or
concerning schemes devised and intended to deceive and defraud the
public, for the purpose of obtaining money under false pretenses,
shall be carried in the mail. Any person who shall knowingly
deposit or send any thing to be conveyed by mail, in violation of
this section, shall be punishable by a fine of not more than $500,
nor less than $100, with costs of prosecution."
By an act approved July 12, 1876 (19 Stat. 90), the word
"illegal" was stricken out of the section. Under the law as thus
amended, the petitioner was indicted, in the Circuit Court of the
United States for the Southern District of New York, for knowingly
and unlawfully depositing, on the 23d of February, 1877, at that
district, in the mail of the United States, to be conveyed in it, a
circular concerning a lottery offering prizes, enclosed in an
envelope addressed to one J. Ketcham, at Gloversville, New York.
The indictment sets forth the offence in separate counts, so as to
cover every form in which it could be stated under the act. Upon
being arraigned, the petitioner stood mute, refusing to plead; and
thereupon a plea of not guilty was entered in his behalf by order
of the court. Rev.Stat., sect. 1032. He was subsequently tried,
convicted, and sentenced to pay a fine of $100, with the costs of
the prosecution, and to be committed to the county jail until the
fine and costs were paid. Upon his commitment, which followed, he
presented to this court a petition alleging that he was imprisoned
and restrained of his liberty by the marshal of the Southern
District of New York, under the conviction; that such conviction
was illegal, and that the illegality consisted in this: that the
court had no jurisdiction to punish him for the acts charged in the
indictment; that the act under which the indictment was drawn was
unconstitutional and void; and that the court exceeded its
jurisdiction in committing him until the fine was paid. He
therefore prayed for a writ of habeas corpus to be directed to the
marshal to bring him before the court, and a writ of certiorari to
be directed to the clerk of the Circuit Court to send up the record
of his conviction, that this court might
Page 96 U. S. 729
inquire into the cause and legality of his imprisonment.
Accompanying the petition, as exhibits, were copies of the
indictment and of the record of conviction. The court, instead of
ordering that the writs issue at once, entered a rule, the counsel
of the petitioner consenting thereto, that cause be shown, on a day
designated, why the writs should not issue as prayed; and that a
copy of the rule be served on the Attorney-General of the United
States, the marshal of the Southern District of New York, and the
clerk of the Circuit Court. The Attorney-General, for himself and
others, answered the rule by averring that the petition and
exhibits do not make out a case in which this court has
jurisdiction to order the writs to issue, and that the petitioner
is in lawful custody by virtue of the proceedings and sentence
mentioned in the exhibits, and the commitment issued thereon.
Page 96 U. S. 732
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the court.
The power vested in Congress "to establish post offices and post
roads" has been practically construed, since the foundation of the
government, to authorize not merely the designation of the routes
over which the mail shall be carried and the offices where letters
and other documents shall be received to be distributed or
forwarded, but the carriage of the mail and all measures necessary
to secure its safe and speedy transit and the prompt delivery of
its contents. The validity of legislation prescribing what should
be carried, and its weight and form, and the charges to which it
should be subjected, has never been questioned. What should be
mailable has varied at different times, changing with the facility
of transportation over the post roads. At one time, only letters,
newspapers, magazines, pamphlets, and other printed matter, not
exceeding eight ounces in weight, were carried; afterwards, books
were added to the list; and now small packages of merchandise, not
exceeding a prescribed weight, as well as books and printed matter
of all kinds, are transported in the mail. The power possessed by
Congress embraces the regulation of the entire postal system of the
country. The right to designate what shall be carried necessarily
involves the right to determine what shall be excluded. The
difficulty attending the subject arises not from the want of power
in Congress to prescribe regulations as to what shall constitute
mail matter, but from the necessity of enforcing them consistently
with rights reserved to the people, of far greater importance than
the transportation of the mail. In their enforcement,
Page 96 U. S. 733
a distinction is to be made between different kinds of mail
matter -- between what is intended to be kept free from inspection,
such as letters, and sealed packages subject to letter postage, and
what is open to inspection, such as newspapers, magazines,
pamphlets, and other printed matter purposely left in a condition
to be examined. Letters and sealed packages of this kind in the
mail are as fully guarded from examination and inspection, except
as to their outward form and weight, as if they were retained by
the parties forwarding them in their own domiciles. The
constitutional guaranty of the right of the people to be secure in
their papers against unreasonable searches and seizures extends to
their papers, thus closed against inspection, wherever they may be.
Whilst in the mail, they can only be opened and examined under like
warrant, issued upon similar oath or affirmation, particularly
describing the thing to be seized, as is required when papers are
subjected to search in one's own household. No law of Congress can
place in the hands of officials connected with the postal service
any authority to invade the secrecy of letters and such sealed
packages in the mail; and all regulations adopted as to mail matter
of this kind must be in subordination to the great principle
embodied in the Fourth Amendment of the Constitution.
Nor can any regulations be enforced against the transportation
of printed matter in the mail which is open to examination so as to
interfere in any manner with the freedom of the press. Liberty of
circulating is as essential to that freedom as liberty of
publishing; indeed, without the circulation, the publication would
be of little value. If, therefore, printed matter be excluded from
the mails, its transportation in any other way cannot be forbidden
by Congress.
In 1836, the question as to the power of Congress to exclude
publications from the mail was discussed in the Senate, and the
prevailing opinion of its members, as expressed in debate, was
against the existence of the power. President Jackson, in his
annual message of the previous year, had referred to the attempted
circulation through the mail of inflammatory appeals, addressed to
the passions of the slaves, in prints, and in various publications,
tending to stimulate them to insurrection, and suggested to
Congress the propriety of passing a law prohibiting,
Page 96 U. S. 734
under severe penalties, such circulation of "incendiary
publications" in the Southern States. In the Senate, that portion
of the message was referred to a select committee of which Mr.
Calhoun was chairman, and he made an elaborate report on the
subject in which he contended that it belonged to the States, and
not to Congress, to determine what is and what is not calculated to
disturb their security, and that to hold otherwise would be fatal
to the States; for if Congress might determine what papers were
incendiary, and as such prohibit their circulation through the
mail, it might also determine what were not incendiary, and enforce
their circulation. Whilst, therefore, condemning in the strongest
terms the circulation of the publications, he insisted that
Congress had not the power to pass a law prohibiting their
transmission through the mail, on the ground that it would abridge
the liberty of the press. "To understand," he said,
"more fully the extent of the control which the right of
prohibiting circulation through the mail would give to the
government over the press, it must be borne in mind that the power
of Congress over the post office and the mail is an exclusive
power. It must also be remembered that Congress, in the exercise of
this power, may declare any road or navigable water to be a post
road; and that, by the act of 1825, it is provided 'that no stage,
or other vehicle which regularly performs trips on a post road, or
on a road parallel to it, shall carry letters.' The same provision
extends to packets, boats, or other vessels on navigable waters.
Like provision may be extended to newspapers and pamphlets, which,
if it be admitted that Congress has the right to discriminate in
reference to their character, what papers shall or what shall not
be transmitted by the mail, would subject the freedom of the press,
on all subjects, political, moral, and religious, completely to its
will and pleasure. It would in fact, in some respects, more
effectually control the freedom of the press than any sedition law,
however severe its penalties."
Mr. Calhoun, at the same time, contended that when a State had
pronounced certain publications to be dangerous to its peace and
prohibited their circulation, it was the duty of Congress to
respect its laws and cooperate in their enforcement; and whilst,
therefore, Congress could not prohibit the transmission of the
incendiary documents through the mails,
Page 96 U. S. 735
it could prevent their delivery by the postmasters in the States
where their circulation was forbidden. In the discussion upon the
bill reported by him, similar views against the power of Congress
were expressed by other senators who did not concur in the opinion
that the delivery of papers could be prevented when their
transmission was permitted.
Great reliance is placed by the petitioner upon these views,
coming, as they did in many instances, from men alike distinguished
as jurists and statesmen. But it is evident that they were founded
upon the assumption that it was competent for Congress to prohibit
the transportation of newspapers and pamphlets over postal routes
in any other way than by mail; and of course it would follow that
if, with such a prohibition, the transportation in the mail could
also be forbidden, the circulation of the documents would be
destroyed and a fatal blow given to the freedom of the press. But
we do not think that Congress possesses the power to prevent the
transportation in other ways, as merchandise, of matter which it
excludes from the mails. To give efficiency to its regulations and
prevent rival postal systems, it may perhaps prohibit the carriage
by others for hire, over postal routes, of articles which
legitimately constitute mail matter, in the sense in which those
terms were used when the Constitution was adopted, consisting of
letters, and of newspapers and pamphlets, when not sent as
merchandise; but further than this, its power of prohibition cannot
extend.
Whilst regulations excluding matter from the mail cannot be
enforced in a way which would require or permit an examination into
letters, or sealed packages subject to letter postage, without
warrant, issued upon oath or affirmation, in the search for
prohibited matter, they may be enforced upon competent evidence of
their violation obtained in other ways; as from the parties
receiving the letters or packages, or from agents depositing them
in the post office, or others cognizant of the facts. And as to
objectionable printed matter, which is open to examination, the
regulations may be enforced in a similar way, by the imposition of
penalties for their violation through the courts, and, in some
cases, by the direct action of the officers of the postal service.
In many instances, those officers can act
Page 96 U. S. 736
upon their own inspection, and, from the nature of the case,
must act without other proof; as where the postage is not prepaid,
or where there is an excess of weight over the amount prescribed,
or where the object is exposed, and shows unmistakably that it is
prohibited, as in the case of an obscene picture or print. In such
cases, no difficulty arises, and no principle is violated, in
excluding the prohibited articles or refusing to forward them. The
evidence respecting them is seen by every one, and is in its nature
conclusive.
In excluding various articles from the mail, the object of
Congress has not been to interfere with the freedom of the press,
or with any other rights of the people, but to refuse its
facilities for the distribution of matter deemed injurious to the
public morals. Thus, by the act of March 3, 1873, Congress
declared
"that no obscene, lewd, or lascivious book, pamphlet, picture,
paper, print, or other publication of an indecent character, or any
article or thing designed or intended for the prevention of
conception or procuring of abortion, nor any article or thing
intended or adapted for any indecent or immoral use or nature, nor
any written or printed card, circular, book, pamphlet,
advertisement, or notice of any kind, giving information, directly
or indirectly, where, or how, or of whom, or by what means, either
of the things before mentioned may be obtained or made, nor any
letter upon the envelope of which, or postal card upon which
indecent or scurrilous epithets may be written or printed, shall be
carried in the mail; and any person who shall knowingly deposit, or
cause to be deposited, for mailing or delivery, any of the
hereinbefore mentioned articles or things, . . . shall be deemed
guilty of a misdemeanor, and, on conviction thereof, shall, for
every offence, be fined not less than $100, nor more than $5,000,
or imprisonment at hard labor not less than one year nor more than
ten years, or both, in the discretion of the judge."
All that Congress meant by this act was that the mail should not
be used to transport such corrupting publications and articles, and
that anyone who attempted to use it for that purpose should be
punished. The same inhibition has been extended to circulars
concerning lotteries -- institutions which are supposed to have a
demoralizing influence upon the people. There is no
Page 96 U. S. 737
question before us as to the evidence upon which the conviction
of the petitioner was had; nor does it appear whether the envelope
in which the prohibited circular was deposited in the mail was
sealed or left open for examination. The only question for our
determination relates to the constitutionality of the act, and of
that we have no doubt.
The commitment of the petitioner to the county jail until his
fine was paid was within the discretion of the court under the
statute.
As there is an exemplified copy of the record of the
petitioner's indictment and conviction accompanying the petition,
the merits of his case have been considered at his request upon
this application; and, as we are of opinion that his imprisonment
is legal, no object would be subserved by issuing the writs; they
are therefore
Denied.
