# Ex Parte Jackson

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United States Supreme Court
96 U.S. 727
Ex Parte Jackson
PETITION for writs of habeas-corpus and certiorari.
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 pretences, 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 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.
Mr. A. J. Dittenhoefer and Mr. Louis F. Post for the petitioner.
1. From the power to establish post-offices and post-roads, that of receiving, carrying, and delivering the mail is implied; and from these are derived other incidental powers, one of them being the right to protect the mail by appropriate legislation. McCullough v. Maryland, 4 Wheat. 316; Sturtevant v. City of Alton, 3 McLean, 393.
2. As the power of Congress is exclusive, its legislation establishing a post-office or post-road, or regulating the receipt, protection, car iage, or delivery of the mail, is therefore supreme. Congress has, in the exercise of the power, declared (Rev. Stat., sect. 3982) that 'no person shall establish any private express for the conveyance of letters or packets, or in any manner cause or provide for the conveyance of the same, by regular trips or at stated periods, over any post-route which is or may be established by law, or from any city, town, or place, to any other city, town, or place, between which the mail is regularly carried.'
3. The power so vested in Congress imposed upon that body the duty to furnish adequate facilities for the secure transportation and delivery of all letters and packets which were considered legitimate mail matter at the time of the adoption of the Constitution. To provide the requisite funds for the performance of this duty, Congress has imposed reasonable rates of postage; and, to protect the contents of the mail, has prohibited the putting in the mail-bags of any poisonous or explosive article, which may injure them, or the persons connected with the mail service; and it has also limited the bulk and weight of mailable packets. These are matters of appropriate regulation. Never, however, until 1836, was any attempt made to exclude established mail matter from the mails. The President had previously recommended to Congress the passage of a law prohibiting the conveyance by mail of publications inciting persons held to service in the Southern States to revolt against their masters. Pursuant to the recommendation, a bill was introduced in the Senate providing that it should not be lawful for any deputy-postmaster knowingly to receive and put into the mail any pamphlet, newspaper, handbill, or other printed, written, or pictorial representation, touching the subject of slavery, directed to any person or post-office where, by the laws thereof, their circulation was prohibited. Cong. Globe, 1836, p. 150. The measure was signally defeated. The views of the most eminent statesmen of that day, as they appear in the published debates, against its passage upon constitutional grounds, are applicable to the statute under which the petitioner was convicted, and conclusively demonstrate its unconstitutionality.
4. In the year 1868, Congress, in the exercise of an assumed power, declared that it should not be lawful to deposit in a post-office, to be sent by mail, any letters or circulars concerning lotteries, so-called gift-concerts, or other similar enterprises (15 Stat. 196), although all letters whatsoever, without regard to the character of the communication contained in them, had been previously considered to be legitimate mail matter. That act, initiating this species of legislation, is of a like character with the one governing this case, and both are unconstitutional. If Congress can exclude from the mail a letter concerning lotteries which have been authorized by State legislation, and refuse to carry it by reason of their asserted injurious tendency, it may refuse to carry any other business letter; and as the conveyance of letters otherwise than by the mail of the United States, at stated periods, over any post-road, has, as above shown, been prohibited by Congress, that body may cut off all means of epistolary communication upon any subject which is objectionable to a majority of its members. So long as the duty of carrying the mails is imposed upon Congress, a letter or a packet which was confessedly mailable matter at the time of the adoption of the Constitution cannot be excluded from them, provided the postage be paid and other regulations be observed. Whatever else has been declared to be mailable matter,-as postal cards, postal money-orders, merchandise, &c., all of which were unknown to the postal system when the convention concluded its labors in 1787, may, in the discretion of Congress, be abolished.
Mr. Assistant-Attorney-General Smith, contra.
1. Congress has the power 'to establish post-offices and post-roads,' and to make all laws necessary and p wer for carrying into execution that power.
The framers of the Constitution meant to create an establishment as an entirety; not merely to designate the places at which mails should be taken up and delivered, and the routes by which they should be transported from point to point. Full, sovereign control over the whole subject was given, to be exercised by any appropriate means. Kohl et al. v. United States, 91 U.S. 367; Dickey v. Maysville & Lexington Turnpike Road Co., 7 Dana (Ky.), 113; Sturtevant v. City of Alton, 3 McLean, 393; 2 Story, Const., sects. 1125-1150; Rawle, Const., c. 9, pp. 103, 104.
2. Having exclusive power over the subject, Congress can prescribe the matter which shall receive the benefits of this establishment; and he who complains that he cannot use it to transmit obscene or improper communications, no more maintains a constitutional right than does the debtor who cannot avail himself of the Bankrupt Act because he owes but $100, or because (under the first law on this subject) he is not a trader. It is a question of administration merely. If the public interests require the exclusion of articles morally contaminating, as well as of poisons, acids, or explosives, to prohibit their deposit in the post-office is as 'essential to the beneficial exercise of the power' granted by the Constitution, though 'not indispensably necessary to its existence,' as any of those mentioned in McCulloch v. The State of Maryland, 4 Wheat. 316.
The remedy is in the hands of the people, if Congress so legislates as to deprive them of the full and just enjoyment of postal privileges.
Any State choosing to sanction a business which Congress thinks ought not to have the use of the mails to facilitate its transactions, can, if she please, provide means of communication for matter so excluded from the mails. 2 Story, Const., sect. 1150; 1 Tucker's Bl. Com., App. 265.
But, if there is a right to exclude any matter from the mail, the extent of its exercise is one of legislative discretion.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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