opinion, accepted by the authority, if not by the majority, of the speakers, was that Congress had powers (occasionally exercised) which were broader than the executives were disposed to concede.

The continued assertion by the states of plenary authority and the failure of Congress to adopt any successful plan by which the Cumberland Road might be kept in repair, led to compacts of surrender under which the national authorities gave up all control over this highway. The meaning of these compacts was examined by the Supreme Court of the United States, and the plain implication of the decisions (although definite expressions were not necessary for the determination of the particular questions presented) is that Congress had the right to construct postroads and to charge tolls for their use by others than postal officials. This power had already been conceded in an illuminating opinion by the Kentucky Court of Appeals, and the subsequent decisions recognizing a right of eminent domain in the federal government and sanctioning the federal incorporation of railway and bridge companies, are conclusive authority that Congress had the power which the more liberal of its members asserted, but which the states and occasional executives denied. That the power to establish postroads comprehends the power to construct (compensation being made to the states), to levy tolls, and to repair and keep free from obstructions, has thus been assured by judicial decisions as well as by a fair interpretation of the words of the grant; and any fancied taint of unconstitutionality has been removed from laws which Congress passed under its plenary power "to establish postroads," but which exceeded the limitations laid down by the strict constructionists, and did not come before the Supreme Court for a determination of their validity.

CHAPTER IV

LIMITATIONS ON THE POSTAL POWER

Like all grants to Congress, the postal power is not unrestrained, but, as the Supreme Court has expressed it, the difficulty in setting limits beyond which it may not go, arises, "not from want of power in Congress to prescribe the regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with the rights reserved to the people, of far greater importance than the transportation of the mail." One, and perhaps the most important, of these rights is involved when restrictions are applied to periodical publications (particularly in reference to obscene matter and lottery tickets), and the question is at once raised as to the freedom of the press, guaranteed against abridgment by the second clause of the first amendment to the Federal Constitution.2 The extent to which this limitation has been ignored is a moot question. On the one hand, we have the confident assertion of Von Holst that "the freedom of the press has become a part of the flesh and blood of the American people to such an extent, and is so conditioned by the democratic character of their political and social life, that a successful attack upon it, no matter what legal authority it might have on its side, is impossible. Even the gigantic power of slavocracy gave up the battle as hopeless after the first onslaught."

On the other hand, Hannis Taylor in his recent work on the American Constitution remarks that "little need be said

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

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

3 Von Holst, Constitutional History of the United States, vol. ii, P. 127.

as to the clause forbidding Congress to pass any law 'abridging the freedom of the press,' as that clause has been removed from the Constitution, so far as the mails are concerned, by the judgment rendered in 1892, In Re Rapier.' And this extreme view may be said to have received some support from a recent decision of the Supreme Court which upheld the power of Congress to compel newspapers to publish certain information concerning their internal affairs, under penalty, for refusal, of being denied the advantages of low second class rates. Which, then, is the correct view as to the inviolability or abrogation of this constitutional guarantee in relation to the mails?

Freedom of the Press. In the Convention which framed the Federal Constitution, Mr. Pinckney, on August 20, 1787, submitted a number of propositions among which was a guarantee that "the liberty of the Press shall be inviolably preserved." The propositions were referred to the Committee of Detail, and when the question again came up for consideration on September 14, Mr. Pinckney and Mr. Gerry "moved to insert a declaration that the liberty of the Press should be inviolably observed." This motion was lost, Mr. Sherman remarking that "it is unnecessary. The power of Congress does not extend to the Press.”

During the discussion of the Constitution by the States, however, the absence of a guarantee of the freedom of the press was frequently adverted to. Speaking in the South Carolina House of Representatives, Mr. C. C. Pinckney said:

66

'With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying anything about it in the Constitution clearly evinced.

The Origin and Growth of the American Constitution, p. 230. 5 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913). 6 Farrand, vol. ii, pp. 334, 341.

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

The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing which deserves all the encomiums the gentleman has justly bestowed upon it, is secured by all our state constitutions; and to have it mentioned in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it."8

A different theory was advanced by Hamilton, who, answering the objection that the Constitution contained no bill of rights, and treating specifically the absence of any provision safeguarding the press, asked: "What signifies a declaration that 'the liberty of the press shall be inviolably preserved?' What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any Constitution respecting it, must altogether depend upon public opinion, and on the general spirit of the people and of the government.

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

9 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.

66

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.

A proposal to guarantee the freedom of the press was, however, a part of the plan for a bill of rights which Madison introduced in Congress on June 8, 1789.10 Such a federal provision had been suggested by the ratifying conventions of three states, and similar provisions were contained in nine state constitutions.11 Madison's proposal was amended until it provided that "the freedom of speech and of the press . . . shall not be infringed" and its language was further modified until it took the form in which it became a part of the Constitution.

Concerning the meaning of the amendment at the time of its adoption, there has been little, if any controversy, in spite of Hamilton's declaration to the contrary. Blackstone had announced a generally accepted rule when he said that the liberty of the press "consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. . . . To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of the peace and good order, of government and religion, the only foundations of civil liberty."12

In the celebrated case of People v. Croswell, Alexander Hamilton appearing as counsel for the traverser, laid down

10 Annals of Ist Congress, vol. i, p. 434.

11 Elliot's Debates, vol. ii, p. 552; vol. iii, 659; Thorpe, Constitutional History, vol. ii, 204.

12 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 Consti tution (8th ed.), p. 242.