Under its powers to regulate commerce and to punish counterfeiting, Congress has been held to have the power to provide punishment for the bringing into the United States, with intent to pass the same, false, forged or counterfeit coin, as well as for the passing or uttering of the same.23

In Fox v. Ohio24 it was held that the grant of power to the United States to punish the uttering and passing of counterfeits of its coins did not deprive the States of the power to renderpenal and to punish these acts. It was pointed out by the court that the same act might thus constitute as to its character and consequences an offense against both the state and federal governments. This doctrine was approved in United States v. Marigold.

§ 389. Federal Power.

POSTAL SERVICE,

The federal control of the postal service is granted in the clause of Article I, Section VIII which provides that Congress shall have the power "to establish post-offices and post-roads." "No other constitutional grant," as Pomeroy observes,25" seems to be clothed in words which so poorly express its object, or so feebly indicate the particular measures which may be adopted to carry out its design. To establish post-offices, post-roads, is the form of the grant; to create and regulate the entire postal system of the country is the evident intent."

Aside from the express grant of the power to establish postoffices and post-roads, it would seem that Congress would have the power to control the mails, between the States at least, as incidental to the regulation of commerce. In the Pensacola Telegraph Co. v. Union Telegraph Co.26 it was held that the transmission of telegraphic messages is not only commerce and as such, when interstate, subject to congressional regulation, but is an operation that may fairly be brought under the power to establish post-roads.

23 United States v. Marigold, 9 How. 560; 13 L. ed. 257.

24 5 How. 410; 12 L. ed. 213.

25 Constitutional Law, § 411. 26 96 U. S. 1; 24 L. ed. 708.

"Post-offices and post-roads," say the court, "are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress because, being national in their operation, they should be under the protecting care of the National Government. The powers thus

granted are not confined to the instrumentalities of commerce or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country and adapt themselves to the new developments of time and circumstance."

§ 390. Constitutional Views of Monroe.

In early years the view was maintained by some that by this grant Congress was given the power only to designate the routes over which the mails should be carried, and the post-offices where it should be received and distributed, and to exercise the necessary protection in relation thereto, and that it did not provide the authority to construct and operate agencies for the carrying and distributing of mails. This was substantially the view taken by Monroe in the paper sent to Congress in connection with his veto of May 4, 1822, of the Cumberland Road bill.

"If we were to ask any number of our enlightened citizens, who had no connection with public affairs, and whose minds were unprejudiced, what was the import of the word establish' and the extent of the grant, which controls," says Monroe, "we do not think, that there would be any difference of opinion among them. We are satisfied, that all of them would answer, that a power was thereby given to Congress to fix on the towns, courthouses, and other places, through our Union, at which there should be post-offices; the routes, by which the mails should be carried from one post-office to another, so as to diffuse intelligence as extensively, and to make the institution as useful as possible; to fix the postage to be paid on every letter and packet thus carried to support the establishment; and to protect the post-offices and mails from robbery, by punishing those, who should commit the offense. The idea of the right to lay off the roads of the United

States, on a general scale of improvement; to take the soil from the proprietor by force; to establish turnpikes and tolls, and to punish offenders in the manner stated above, would never occur to any such person. The use of the existing road, by the stage, mail-carrier, or post-boy, in passing over it, as others do, is all that would be thought of; the jurisdiction and soil remaining to the State, with a right in the State, or those authorized by its legislature, to change the road at pleasure."

§ 391. Federal Power to Provide Postal Agencies.

In considerable measure Congress has in its legislation kept within the limits of the power conceded to it by Monroe, but, when it has thought it wise, it has not hesitated to overstep them, and its constitutional right so to do has for years been conceded.27

In California v. Central Pacific R. R. Co.28 was involved the power of Congress to construct, or to authorize individuals to construct railroads across the States and Territories. This power the court held to be implied not only in the power given to Congress to regulate commerce, but in its authority to provide for postal accommodations and military exigencies.

§ 392. Exclusion from the Mails: Freedom of Press: Searches and Seizures. Ex parte Jackson.

In Ex parte Jackson29 was questioned the constitutional power of Congress to exclude lottery tickets from the mails, and in determining this the court found it necessary to consider the general extent of the administrative control that might be exercised over the postal service, and especially the relation thereof to the constitutionally guaranteed immunity of the people to be secure against unreasonable searches and seizures, as well as to freedom of the press. In its opinion the court point out that without constitutional objection having been made, the power vested in Congress to establish post-offices and post-roads," had, from the

27 Cf. Story, Commentaries, § 1123 for an argument sustaining these broader powers.

28 127 U. S. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 1050.

29 96 U. S. 727; 24 L. ed. 877.

beginning, been construed to authorize not only the designation of the routes over which the mail should be carried, the location of the offices wherein the mail matter should be received and distributed, the carriage of that matter, and the establishment of regulations providing for its safe and speedy transit and prompt delivery, but the determination of what matter should be carried, its classification, its weight and form, and the charges to be made. This right to designate what shall be carried, it is declared, carries with it the right to determine what shall be excluded.

However, the difficulty in this case arose not so much with establishing the power of Congress to exclude objectionable matter from the mails, as with upholding the power to provide measures for enforcing effectively the rules of exclusion which might be legislatively declared. For, obviously, the presence in the mails of the prescribed matter could be determined only by examination of the mail matter by the proper administrative officer, and the granting of such a right of examination, it was claimed, was in violation of constitutionally guaranteed rights of the people. The court say: "The difficulty attending the subject arises, not from the 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 rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter; between what is intended to be kept 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, whereever 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."

After calling attention to the fact that in 1836 the question of the power of Congress to exclude certain publications from the mails had been discussed in the Senate and that the prevailing view had been that Congress had not this power,30 the court con

30"In 1836, the question of 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 mails 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, 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 power to pass a law prohibiting their transmission through the mail, on the ground that it would abridge the liberty of the press. To under