menace to human progress. Its exercise at that time failed only because the great lawyers in the senate were united in the belief that no such power existed. About 1836, it was proposed by the postmaster-general and President Jackson to pass a bill penalizing the use of the mails for the transmission of abolition literature. I believe it was during that debate that Senator John P. King, a member from a slave-holding state, said this: "I prefer the enjoyment of rational liberty at the price of vigilance, and at the risk of occasional trouble by the error of misguided or bad citizens, to that repose which is enjoyed in the sleep of despotism. * * * No man was ever convinced of his error by refusing to hear him." Mr. Calhoun was made chairman of a special committee in the senate, and the subject received careful consideration. He evidently wished for the power to supervise the mails in the interest of slavery; but to his great honor, be it said, he plainly saw and declared that the constitution did not give congress the power, and he would not claim it. The most he could ask was that by the "comity of nations" the United States would restrain postmasters from delivering such matter in the states which had made its circulation illegal. The question was discussed fully in a senate of unequaled ability, and even this limited restraint, proposed by Mr. Calhoun, by a vote of twenty-five to nineteen was held to be impossible under the constitution. In the debate Henry Clay said: "When I saw that the exercise of a most extraordinary and dangerous power had been announced by the head of the postoffice, and that it had been sustained by the President's message, I turned my attention to the subject and inquired whether it was necessary that the general government should under any circumstances exercise such a power, and whether they possessed it. After much reflection, I have come to the conclusion that they could not pass any law interfering with the subject in any shape or form whatever. The evil complained of was the circulation of papers having a certain tendency. The papers, unless circulated, and while in the postoffice, could do no harm. It is the circulation solely the taking out of the mail and the use to be made of them that constitutes the evil. Then it is perfectly competent for the state authorities to apply the remedy. The instant that a prohibited paper is handed out, whether to a citizen or sojourner, he is subject to the laws which compel him either to surrender or burn it." Mr. Clay then proceeded to demolish

'Con. Globe, 1836, pp. 36, 150, 288, 237, etc.

the claim that congress could legislate to carry into effect the laws of twenty-four different states or sovereignties, and said ironically: "I thought that the only authority of congress to pass laws was in pursuance of the constitution." To the question of Senator Buchanan, of Pennsylvania, to the effect that the postoffice power did give congress the right to regulate what shall be carried in the mails, he replied in the negative, saying: "If such a doctrine prevailed, the government may designate the persons, or parties, or classes who shall have the benefit of the mails, excluding all others." During the debate, one of the safest of senators, "Honest John" Davis, said: "It would be claiming on the part of government a monopoly, an exclusive right either to send such papers as it pleased, or to deny the privilege of sending them through the mail. Once establish the precedent, and where will it lead to? The government may take it into its head to prohibit the transmission of political, religious, or even moral or philosophical publications in which it might fancy there was something offensive, and under this reserved right, contended for in this report, it would be the duty of the government to carry it into effect." Mr. Davis also said he "denied the right of the government to exercise a power indirectly which it could not exercise directly; and if there was no direct power in the constitution, he would like to know how they would get the power of the states— legislative power at most." Mr. Webster expressed himself as "shocked" at the unconstitutional character of the whole proceeding. He said: "Any law distinguishing what shall or shall not go into the mails, founded on the sentiments of the paper, and making the deputy postmaster a judge, I should say is expressly unconstitutional.”7

CONCLUSIONS.

Congress admittedly has no authority to regulate the sexual conduct of citizens within the states. Much less has it the power, as a means to that end, to control the mere psychosexual conditions of citizens of the states. It has never been claimed nor even imagined or dreamed, that the postal regulation against "obscene" literature is of the remotest consequence AS A MEANS to the maintenance of post roads, or that such regulation is of even the remotest conceivable use to the postal system as such. On the contrary, both judicially and other

'Purity and Liberty, by Wakeman; Congressional Globe, 1836, pp. 36, 150, 288, 883, etc.; Von Holst's Life of Calhoun, p. 133.

wise, it has been stated, again and again, that the only purpose of that regulation was to control the psycho-sexual states of postal patrons, as a means of restraining their sexual activities. But this is an end the accomplishment of which is not entrusted to the congress of the United States. Confessedly then, we have here a case where congress, under the pretext of executing its powers to establish post offices and post roads, has passed a law for the accomplishment of objects not entrusted to the United States government, and this is exactly what Chief Justice Marshall said could not become the law of the land. It can make no possible difference to the postal system as such whatever may be the psychologic effect of the opinions transmitted. Some physical factor of the postal system must be affected, making the postal system different from what it otherwise would be, or else the regulation is not an exercise of the power to establish and maintain it.

Neither can the exercise of the present power be justified as an incident to the power to regulate interstate commerce, because the censorship is not limited thereto. It includes Intrastate transmission as well as that of private letters, or gifts which are not at all matters of commerce either Inter-state or otherwise."

For these reasons the power here under discussion is not vested in Congress at all, and the present laws creating a postal censorship over mail matter are unconstitutional.

"M'Culloch v. Maryland, 17 U. S. 428.

'Howard vs. Ill. Cent. R. R., 28 Supt. Ct. Rep. 141.

CHAPTER VIII.

CONCERNING THE MEANING OF "FREEDOM OF THE PRESS."*

The postal laws against "obscene" literature are void under the constitutional prohibition against the abridgment of freedom of speech and of the press. Likewise all similar State legislation is void under State Constitutions.

Syllabus of the argument: This constitutional guarantee of freedom of the press is violated whenever there is an artificial legislative destruction or abridgment of the greatest liberty consistent with an equality of liberty, in the use of the printed page as a means of disseminating ideas of conflicting tendency. The use of printing is but an extended form of speech. Freedom of speech and press is abridged whenever natural opportunity is in any respect denied or its exercise punished, merely as such; that is, in the absence of actual injury, or when by legislative enactment there is created an artificial inequality of opportunity, by a discrimination according to the subject matter discussed, or a discrimination as between different tendencies in the different treatment of the same subject matter, or according to differences of literary style in expressing the same thought. All this is now accomplished under obscenity laws as at present administered, and therefore our laws upon the subject are unconstitutional.

This contention involves the establishment of a new definition of "freedom of the press" based upon the viewpoint that the framers of the constitution intended by that clause to enlarge the intellectual liberty of the citizen beyond what it had theretofore been under the English system. Some State courts have erroneously assumed that the only purpose was to exchange a censorship before publication for criminal punishment after publication, without the least enlargement of the right to publish with impunity so long as no one is injured. The contention will be that the constitution changed liberty of the press by permission, to Liberty as a right because thus only

can all citizens be protected in their proper opportunity to hear and read all that others have to offer, and without which freedom unrestricted there is no intellectual liberty at all as a matter of right.

Before proceeding with the more critical study of the meaning of "freedom of the press," it is well that we should point out, and so far as possible bar, the principal avenues of error, which have heretofore misled our courts.

THE DANGER OF PRECEDENTS.

Over a century ago Sargeant Hill cynically wrote this: "When judges are about to do an unjust act they seek for a precedent in order to justify their conduct by the faults of others." In matters of government, at least during the last few centuries, the evolution has been from despotism to liberty. It follows from this that the danger and iniquity of blindly following precedents is nowhere so great as in the attempts to define the limits of constitutional liberty by reverting to the ancient misconceptions of it, because the older precedents were all made by tyrants, or those not far evolved from their attitude of mind. As we evolve to a more refined sense of justice, and rational conception of liberty, the old precedents must be constantly overruled. It is this which marks the progress of our race in its evolution to a truer and final social liberty.

CRITICAL STUDY OF FUNDAMENTALS.

The utility of a brief historical review of the struggle for "freedom of the press" lies partly in this, that it shows how reluctant have been those in power to admit such freedom in practice, though seldom denying it in principle, and how shifty the powers of despotism have been in yielding up one form of repression as a concession to intellectual liberty, and at the same time creating a new method for effectually accomplishing the same impairment of intellectual opportunity, Such a study will also show how uniformly the moral sentimentalism of those in authority has prompted them to reinvent the same phrases in defence of each renewed attack upon freedom.

In order to understand the underlying impetus of all this, it must be remembered that when this problem first arose it was in every essence a religious one, and arose where there a union of church and State. Those who governed

was