the slave states. The evil complained of was serious, and the states were making strenuous objections to the continued presence in the mails of such literature.

On July 29, 1835, for example, the Southern Patriot of Charleston, S. C., complained that the mails from the North were "literally overburthened with the newspaper called 'The Emancipator' and two tracts entitled 'The AntiSlavery Record' and 'The Slaves' Friend."" This was declared a "monstrous abuse of the public mail" and the publications were denounced as moral poison, the Patriot adding: "If the general post office is not at liberty [to prevent circulation], it is impossible to answer for the security of the mail in this portion of the country, which contains such poisonous and inflammatory matter.”20 The Charleston postoffice was in fact entered, and this particular consignment of papers destroyed. "Extreme cases require extreme remedies," said the Patriot, and the Charleston Mercury went so far as to predict that anyone violating the South Carolina law against circulation "would assuredly expiate his offence on the gallows."21 Practically all of the Southern States had extremely stringent statutes and several provided capital punishment for offenders.22

This occurrence at Charleston led Samuel L. Gouverneur, postmaster at New York, to suggest to Amos Kendall, the postmaster general, that the transmission of such papers be suspended, but Arthur Tappan, president of the American Anti-slavery Society, declined to surrender "any rights or privileges which we possess in common with our fellow citizens in regard to the use of the United States mail."2

20 Niles' Register, vol. xlviii, p. 402.

21 Ibid., p. 403.

22 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.

23 Niles' Register, vol. xlviii, p. 447.

Local postmasters nevertheless began to take matters in their own hands. In regard to the detention of incendiary matter by the Charleston postoffice, Kendall wrote:

"I am satisfied that the postmaster general has no legal authority to exclude newspapers from the mail, nor prohibit their carriage or delivery on account of their character or tendency, real or supposed. . . .

"The post office department was created to serve the people of each and all of the United States and not to be used as the instrument of their destruction. . . . Entertaining these views, I cannot sanction and will not condemn the step you have taken. Your justification must be looked for in the character of the papers detained, and the circumstances by which you are surrounded." Kendall left it to the discretion of the local postmasters as to whether they would carry out their official duties, or obey the laws of the local jurisdictions.25

"24

It was, therefore, no surprise when Jackson adverted to the situation, and in his annual message asked for legislation denying such publications the facilities of the postoffice. President Jackson wrote:

"I must also invite your attention to the painful excitement produced in the.south, by the attempts to circulate, through the mails, inflammatory appeals addressed to the passions of the slaves, in prints, and in various sorts of publications, calculated to stimulate them to insurrection and to produce all the horrors of a servile war. . . .

"In leaving the care of other branches of this interesting subject to the state authorities, to whom they properly belong, it is nevertheless proper for Congress to take such measures as will prevent the post office department, which was designed to foster an amicable intercourse and correspondence between all members of the confederacy, from being used as an instrument of the opposite character. The general government to which the great trust is confided of

24 Niles' Register, vol. xlviii, p. 448.

25 The legal aspects of this solution of the problem will be treated in the chapter following.

preserving inviolate the relations created among the states by the Constitution is especially bound to avoid, in its own action, anything that may disturb them. I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the southern states, through the mail, of incendiary publications intended to instigate the slaves to insurrection.”

1926

On December 21, 1835, Calhoun moved that "so much of the President's message as relates to the transmission of incendiary publications by the United States mail be referred to a special committee." King of Alabama expressed the opinion of several that the regular standing committee on postoffices would do, since he "felt a confident belief that there was no disposition in any of its members to have the public mails prostituted to a set of fanatics." Preston of South Carolina thought that a solution of the evil could be arrived at by a method other than barring the publications from the mail. He proposed "that the depositing of an incendiary publication in the post office should be constituted an offence in the state where it took place, and the letting of it out of the post office should be equally deemed an offence where it occurred."27 Nevertheless, Calhoun's view prevailed and the message was referred to a select committee of which he was made chairman.28 An elaborate report written by him was presented to the Senate on February 4, 1836,29 but with the unqualified concurrence of only one fellow committeeman. The others opposed, either any federal action at all, Calhoun's theory as to the remedy, 26 Statesman's Manual, vol. ii, p. 911. 27 12 Debates of Congress, 26, 33.

28 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.

29 12 Debates of Congress, 383; Calhoun's Works, vol. v, p. 191.

or some of the details of the measure which was recommended.

The committee's report was based upon the premise that Congress had not the power to pass legislation in accordance with the President's recommendation to exclude the objectionable publications from the mails; such a law, Calhoun thought, "would be a violation of one of the most sacred provisions of the Constitution, and subversive of reserved powers essential to the preservation of the domestic institutions of the slaveholding states, and with them, of their peace and security." This would be closely analogous to the Sedition Act which made it a crime to print "any false, scandalous and malicious writing or writings, against the government of the United States," or Congress, or the President, "with intent to defame . . . or to bring them ... into contempt or disrepute ... or to incite against them, or either of them, the hatred of the good people of the United States."30

But, said Calhoun, postulating the unconstitutionality of these provisions, "as abridging the freedom of the press, which no one now doubts, it will not be difficult to show that if, instead of inflicting punishment for publishing, the act had inflicted punishment for circulating through the mails for the same offence, it would have been equally unconstitutional . . . To prohibit circulation, is in effect, to prevent publication . . . each is equally an abridgment of the freedom of the press.

"The prohibition of any publication on the ground of its being immoral, irreligious, or intended to excite rebellion or insurrection, would have been equally unconstitutional; and, from parity of reason, the suppression of their circulation through the mail would be no less so."31

The fallacy of this is evident. So far as the Sedition Act is concerned, there are two grounds upon which it could be attacked: lack of congressional power to punish sedition, and abridgment of the freedom of the press. The first

30 1 Stat. L. 596.

31 Italics are mine.

question, for present purposes, needs no discussion;32 but, as for the second, it is well settled that punishment for seditious, obscene, defamatory and blasphemous publications, is not in violation of the freedom of the press.33 In the United States, then, there is no constitutional restriction which will compel the government impotently to remain the subject of attacks upon its stability. The Act of 1798 was very broad and objectionable on this ground, but the prohibition of seditious utterances urging the use of force or unlawful means to overthrow the government or falsely defamatory of federal officers would not infringe any provision of the bill of rights.34

32 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 I 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. I (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.

33 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.

34 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.