^Vt. 
 
 Duk« "University A^i^>iary 
 
THE 
 
 Unanswered Argument 
 
 AGAINST THE 
 CONSTITUTIONALITY 
 
 or THE 
 
 THE SO-CALLED COMSTOCK POSTAL LAWS, 
 
 AND FOE THE 
 
 Inviolability and Free and Equal Use 
 
 UNITED STATES MAIL: 
 
 Containing Citations from the Ablest American States- 
 men and Jurists, 
 
 BY 
 
 T. B. WAKEMAN, 
 
 Of the Xew York Bar. 
 
 TO WHICH IS ADDED THE OPINIONS OF DISTINGUISHED 
 
 AUTHOES AND OTHERS WHO HAVE EXAMINED 
 
 THE SUBJECT. 
 
 ISSUED BY THE NA' 
 
 NEW YOi?Sf^,phlet Coliecljort 
 TioNAL D;ii:pi^v6S^cfey?HyN. 
 
 1 880 V^^^ 
 
93 Nassau Street/ "■•■ 
 
 GENTLEMEN OF THE DEFENSE COMMITTEJ^: 
 
 You request a few 'words to introducQ.f^ reissue pf 
 iry FaDetiil Hall Speech for general circulation. * 
 
 li'.ij,-*.-. ■'■ '■'■■ ''J.^ 
 
 1. As to the style and tone of th$Jt !^pe;^ch,,,I 
 
 wish it to be reniewibered that it waSjT(^eJiy,e^fd,t|(? 
 an mcligvation meeting in the warmest sense of the 
 term ; and tluit any expressions, apparently (Jisrc; 
 spectful to theC(?urts or Judges or "p9wevs tl^at 
 be," must be allowed for in the saijfte .")Taj tha,t 
 mucli was ' pardoned to the Spirit of Liberty ' in the 
 Al)olition and Eepublican reviews of the Dred 
 Scott decision. 
 
 2. As to tlie substaiiOe of the argument I 'hfty,f 
 never heard any answej^ to it/nnd I ddftftifeijlii^^Xt 
 that any can be made. The Federal ©bvterBaaietUt 
 of tlie United States is one of lowers spec; 'ili^ 
 granted alid limited by the Constitute ii.yy -Jl'b* 
 
vi INTRODUCTION TO F.'^"UIL HALL SPEECH. 
 
 claim that, bectuise these pov^^crs are exercised 
 through Departments, that, tlierefore, it can use 
 these Departments {e. g. the United States Postal 
 Department! for any ulterior, political, moral, or 
 crimmal purposes it may fancy, is simply to throw 
 away the Constitution, and to give the General 
 GjpYernmep.t unlimited criminal and other juris- 
 diction, and, in the end, absolute power. 
 
 The second part of the argument is equally un- 
 answerable, to wit, that this Legislation '^ abridges 
 \he freedom of the yress^^ and, therefore, the liber- 
 ty of the people. The Post Office is the neces- 
 ftity of every civilized person, and tlie principal 
 ineiii^ ' bf "publication. Every person has a free 
 and eqiiaPright to its use, and to tlie riglit of pub- 
 lication by it witliout pAor restraint, espionage, 
 or fol-f^itur^ of his property. He is liable for the 
 abtise of tliese rights just as he is liable for other 
 abiiBcs, 1^ut he cannot be constitutionally deprived 
 of them before hand by a Postal Censorship estab- 
 lished t)y CoTigress. 
 
 5. The importance of this subject is growing, 
 more apparent from day to day. Wliere the inch 
 Was usurped the ell is being taken. From super- 
 vision of ^' improper " matter, our Postal Censors 
 have included Lotteries, and they are now busily 
 engacT'^d upon the correspondence of the Brokers of 
 Wall fc oet. The plea of necessity, and a little 
 
INTRODUCTION TO FANEUIL HALL SPEECH. vii 
 
 public clamor to justify the extensions of this 
 power, will place our " inviolable Post Office "on 
 a par witli that of Russia. What is done through 
 this Department, can and will be done through 
 the other Departments. The result will be inev- 
 ita])le. The consolidated^ centralized^ general Gov- 
 ernment means the Empire ! 
 
 Let no one be deceived. In the end there can 
 be no popular liberty unless the Federal character 
 of our Government is maintained. In Jefferson's 
 words, we must cherish " the support of the State 
 Governments in all tlieir riglits as the most com- 
 petent administrators of our domestic concerns and 
 the surest hulvmrks against anti-Hepxiblican ten- 
 dencies P 
 
 At the same time he counsels the balance, viz.; 
 " The preservation of the General Government, in 
 its whole constitutional vigor, as the slieet anchor 
 of our peace at home and safety abroad." 
 
 4. The only possible remedy now for the sacrifice 
 and danger that these United States Postal Laws 
 have brought upon us, is an appeal to the People 
 and to Congress, until their true character and 
 danger is understood. The Courts — rather acci- 
 dentally than otherwise perhaps — ^have placed them- 
 selves in a position (as they did in regard to the 
 United States Bank, the Legal-Tender, and 
 Slavery generally,) in which no relief or safety 
 
viii INTRODUCTION TO FANEUIL HALL SPEECH. 
 
 can be expected from them. Tliey have made a 
 precedent in tlie Jackson case that will ratify any 
 claim that may be regarded as morally or other- 
 wise desirable by the Departments. 
 
 Whether our Federal Government and our Liber- 
 ties are to be preserved or not, is again a question 
 resubmitted to the People and their Congress, and in 
 no way more decidedly than by the patent usurpa- 
 tions of these United States Postal Laws. 
 Yery respectfully yours, 
 
 T. B. WAKEMAN. 
 
[Tbuth Seeker Tbacts. No. 144.] 
 
 THE 
 
 COMSTOCK POSTAL LAW 
 
 UNCONSTITUTIONAL 
 
 Plain Duty of all Citizens. 
 
 A SPEECH BY T. B. WAKEMAN. 
 
 To %ohich is appended the opinion of Justice Field, 
 
 jl letter to the officers of the third liberal 
 league in the city of new york, in re- 
 sponse to an invitation to address them. 
 
 Gentlemen: I feel greatly honored by the invita- 
 tion to address your Liberal League upon the ques- 
 tions raised by the petition against the Comstock 
 Postal Laws of 1873, which was so largely signed, and 
 presented to Congress at the last session. But while 
 I appreciate the importance of the subject, I find 
 that a public address would be inconvenient; and I 
 hope that you will accept my answers to your ques- 
 tions by this letter and the inclosed address at Fan- 
 euil HalL 
 
4: THE COIVJ-STOCK LAW9. 
 
 You refer to the petition as having been drawn by 
 me, and "wish to know in wtat respect, if any, my 
 views have changed in regard to it." 
 
 My answer is that the subsequent discussion, and 
 particularly the decision of the Supreme Court in 
 the Matter of Jackson, have changed my views only 
 to increase the conviction that the ground taken in 
 that petition is the only safe one, unless the people 
 are willing to give up their constitutional guaran- 
 tees of liberty of person and of the press. You 
 probably inquire about a " change of views " because 
 some have intimated that the petition was "hasty, 
 ill considered, and ill advised." Let me assure you, 
 on the contrary, that the petition was carefully con- 
 sidered and revised by several lawyers, publishers, 
 artists, and others, Liberal and otherwise, before the 
 responsibility, which was deeply felt, of sending it out 
 for signatures was taken. Although Mr. D. M. Ben- 
 nettfe arrest was the occasion that called it forth, it 
 was not his work nor that of any one person, but 
 rather of a committee of consultation to whom the 
 matter was by him entirely left. The whole subject 
 was then so thoroughly examined that I do not hesi- 
 tate to say that no law case nor important phase of 
 the question has b^en since presented that was not 
 before them. The only important facts that have 
 since occurred have been the conviction and impris- 
 onment of Mr. Hey wood under the law, and the 
 decision in the Matter of Jackson, in which the Su- 
 preme Court of the United States (by an obiter 
 dictum) apparently sustained its constitutionality. 
 
 Another impression should be removed, which is 
 to the effect that the petition was sent out simply 
 as a Liberal party movement, designed to aid ono. 
 
THE COMSTOCK LAWS. 
 
 TT 
 
 particular class of the people. It was intended to 
 be above all partisan or sectarian spirit, purposes, or 
 " traps." It aimed to combine a general public sen- 
 timent so as to carry out the motives of those great 
 souls who raad*^ the Constitution " to secure the 
 blessings of liberty to ourselves and our posterity." 
 There is not a word in it that should prevent its 
 being signed by any citizen, no matter of what belief 
 or unbelief. 
 
 It is a matter of regret that this petition, and th« 
 roost important matter it presents, has been left to 
 the management of Liberals only, and even among 
 them has been made a subject of editorial rancor 
 and rivalry by those who have failed to rise to the 
 height of the question involved. It is only to such 
 persons that it appears as especially a Liberal move- 
 ment or a Liberal " trap." This trap suggestion well 
 illustrates the narrow-mindedness that is to be avoid- 
 ed in approaching questions of this character. We 
 are told that if you dare to oppose these laws you 
 will *•' fall into the trap " of allying yourselves and 
 all Liberalism with " obscenity." But suppose you 
 do not oppose them ? Do you not then ally Liber- 
 alism with bigotry and fatal betrayal of liberty? Is 
 not the latter " trap " the worse of the two ? But 
 why turn this into a trap question ? It is not a 
 choice between Scylla and Charybdis. Let us keep 
 in mid- water and on the high sea, trust to pure mo- 
 tives and the breezes of liberty, and " traps " *' to 
 the right of us " and " to the left of us " may be 
 safely left behind to catch those who set or think 
 of ihera. The Liberal party or sect, like every other in 
 a free republic, will find its justification and victory 
 only in so far as it makes for the good and welfare 
 
6 THE COMSTOCK LAWS. 
 
 of the whole people. That liberty of the person, of 
 
 speech, and of the press are the great means of effect- 
 ing this welfare is the tradition that has come down 
 to us associated with the names of Otis, Washinofton, 
 Patrick Henry, Franklin, Jefferson, Madison, and 
 Paine, and which it was the purpose of the petition 
 to help to continue. The belief has been cherifshed 
 that this tradition was embodied in the Constitution 
 and its amendments, so as to make those liberties 
 the fundamental law of the land. The question is 
 whether these liberties can be "construed out" of the 
 Constitution by Congress and the courts, wbile the 
 people are blinded by appeals to their prejudices 
 against Liberals or their disgust against obscenity. 
 
 In the true point of view, this is not a question of 
 obscenity, but of liberty. The spirit in which it is 
 to be approached is found in these memorable words 
 of Madison: 
 
 " It is proper to take alarm at the first experiment 
 on our liberties. We hold this prudent jealousy to 
 be the first duty of citizens, and one of the noblest 
 characteristics of the late Revolution. The free men 
 of America did not delay until usurped power had 
 strengthened itself by exercise and entangled the 
 question in precedents. They saw all the conse- 
 quences in the principle, and they avoided the con- 
 siequences by denying the principle. We revere this 
 lesson too much soon to forget it." 
 
 But as to the attitude and importance of the ques- 
 tions involved, I think I could give no better answer 
 than to send you a report of my address delivered 
 at Faneuil Hall, Boston, on the Ist inst., at the great 
 " Indignation Meeting " there held to consider the 
 violation of the freedom of the press by the arrest, 
 
THE COMSTOCK LAWS. 7 
 
 trial, and sentence, under this law, of Ezra H. Hey- 
 wood, the editor of The Word, now published at 
 Cambridge, Mass. I send this address, instead of 
 writing further, also because its main points were 
 most heartily approved by the large and intelligent 
 audience that filled the old Hall to overflowing; and 
 this approval gives it a weight beyond my individ- 
 ual Opinion. Very respectfully. 
 
 Your obedient servant, T. B. Wakeman. 
 
 August 8, 1878. 
 To CouKTLANDT Palmer, Esq., President, and 
 
 Other Officers of Third Liberal League, etc. 
 
 THE ADDRESS 
 
 JLT THE INDIGNATION MEETING, HELD AT FANEUIL 
 HALL, BOSTON, AUG. 1, 1878, TO REMONSTRATE 
 AGAINST THE VIOLATION OF THE FREEDOM OF 
 THE PRESS IN THE ARREST, TRIAL, AND CON- 
 VICTION OF EZRA H. HEYWOOD, EDITOR OF 
 " THE WORD," AT BOSTON, MASS., ELIZUB WRIGHT, 
 PRESIDENT. 
 
 Citizens of Massachusetts, and therefore by Births 
 right Friends of Liberty : 
 You have met indignant that one of your number, 
 an editor against whom no man» woman, or child has 
 ever complained of injury, who has not been un- 
 faithful to the old Commonwealth or the Nation, has 
 been imprisoned, as if a common felon, by the 
 United States. You come under a sense of wrong, 
 as your fathers did, to this old Cradle of Liberty, to 
 ask why and how this wrong has come and to con- 
 sult as to the relief and remedy. 
 
9 THB COMSTOCK LAWS. 
 
 The answer is that the wrong has come from a 
 violation of the Constitution of the United States, 
 and of that very liberty the blessings of which our 
 fathers declared, in its Preamble, they intended to 
 secure by it to themselves and their posterity. This 
 violation has come indirectly and ostensibly for the 
 very worthy purpose of suppressing obscenity. Let 
 me say at the outset, that I respect the motives of 
 the persons who have formed the Society for the 
 Suppression of Vice, and who have contributed to 
 sustain it, but they have selected an improper 
 *'Agent," and used means unlawful, unconstitutional, 
 and unworthy of them. Your President has intro- 
 duced me as the author of the petition so largely 
 signed to have these laws in question repealed, and 
 I wish, therefore, publicly to put my foot upon the 
 libel that I, or others who have signed that petition, 
 have so done as the abettors of obscenity or from a 
 desire to give it aid and comfort. The question lias 
 become one of constitutional liberty and freedom of 
 person, speech, and press, to which a few dirty 
 pamphlets in the mails are as nothing. We are all 
 agreed upon the question of obscenity — no one has 
 a good word for that — but the issue is one of lib- 
 erty, of constitutional liberty, and upon that we 
 must take sides at once or it will be forever too lute. 
 People, however well intended, must not be allowed 
 to imitate the bear who kept the flies off his mas- 
 ter's head by smashing it with a stone. The im- 
 prisonment of an editor for anything l:e may print, 
 except libel, is one of the most dangerous stretches 
 of power possible in a free republic, and worthy of 
 our gravest consideration. We must, therefore, 
 under the Oonstitution, look closely into the meana^ 
 
THE COMSTOCK LAWS. 9 
 
 and purposes with which this deed has been done. 
 We shall find that the means are laws which have 
 been passed by Congress ; that by obiter dictum 
 they have been sanctioned by the United States 
 Supreme Court, and that in effect they take the very 
 heart out of the Constitution. 
 
 "When next we inquire as to the purposes, the 
 ** Agent " of the society which has procured thebe 
 laws to be passed, informs us distinctly that it is "to 
 stamp out the free press." His words, approved by 
 the society, are these — I read from the last printed 
 report of that society — " Another class of publica- 
 tions issued by Freelovers and Freethinkers is in a 
 fair way of being stamped out. The public gener- 
 ally can scarcely be aware of the extent that blas- 
 phemy and filth commingled have found vent 
 through these varied channels. Under a plausible 
 pretense, men who raise a howl about * free press, 
 free speech,' etc., ruthlessly trample under foot the 
 most sacred things, breaking down the altars of 
 religion, bursting asunder the ties of home, and 
 seeking to overthrow every social restraint." 
 
 This purpose, so plainly avowed, is well illustrated 
 by the seal of the society on the cover of their 
 "Report," in which an author or editor is pictured 
 as a miserable convict being shoved into a prison 
 cell, while the grand and virtuous "Agent" is mak- 
 ing a bonfire of his books. Is not this a libel on 
 our age and century? or have the Dark Ages 
 returned? Certainly we have here a new Index and 
 Inquisition. But if this avowal is not enough, here 
 is a letter lately written to the N. Y. Tribune^ in 
 which the "Agent " informs us that " the work must 
 go on," This letter is a perfect picture of illiterate 
 
♦10 
 
 THE COMSTOCK LAWS. 
 
 bigotry, and of itself proves that this "Agent " is 
 the last person who should have been selected as the 
 censor and inquisitor of our liberties and of the 
 American press, if such an officer we must have. 
 
 The danger of this work by these means and 
 purposes lies in their alleged goodness, in their being 
 represented as " God's service," which we have only 
 to recall the doings ( -f Torquemada and Calvin to 
 remember is too often but another name for man's 
 woe, the more so, the greater the sincerity of the 
 worshipers and the interest of their agents. That 
 the majority are sincere as in the case of this soci- 
 ety only increases the danger. In fact, in consider- 
 ing this and all social questions, we must ever bear 
 in mind the three grand divisions of society: 
 
 1. There are the Retrogrades. Their ideal Eden, 
 heaven, and hope for the race is to bring it back to 
 some past state of society. They are mostjy theo- 
 logical, and always praising the past times ; " lau- 
 datores temporis actU^ 
 
 2. The Conservatives, who have great enjoyments 
 or interests at stake, and wish therefore to pre- 
 serve the present as long as they can, and then to go 
 up and enjoy it all over again and forever in a heaven 
 jast above, but not much in advance of them. 
 
 3. The Liberals, who are generally poor or edu- 
 cated, or both, and therefore often very radical and 
 progressive. Their heaven and ideal Paradise is in 
 the future, for which they are always sacrificing 
 themselves in the effort to make the present conform 
 to it» This effort accordingly keeps them in coa- 
 
THE COMSTOCK LAWS. 11 
 
 stant conflict with the other two grand divisions of 
 society, who have generally been in a large major- 
 ity, and whose self-preservation it has been, and is, to 
 stamp them out, or keep them in a serviceable degree 
 of humility. 
 
 Now, without recalling these divisions, we shall 
 not fairly understand Mr. Comstock's society nor the 
 Supreme Court, nor the Constitution itself. The 
 Constitution is, in fact, the first grand and succese.- 
 ful effort in government to harmonize these grand 
 divisions. As such it deserves ever-increasing won- 
 der and veneration as the only plan by which the 
 great antagonistic classes of society are practically 
 made to cooperate to the general good of the whole. 
 The retrogrades and conservatives always combine 
 and give stability to the national life, while the Lib- 
 erals secure its progress and growth. The static 
 and dynamic powers of society are thus each ustd 
 and provided for. The conservative classes give a 
 solid framework for order in the legislation and ad- 
 ministration, and then the Bill of Rights provides 
 guarantees for liberty of person, speech, and print, 
 which will permit growth, and so renew the order, 
 and prevent a despotism or a Chinese civilization. 
 It was indeed a great triumph of statesmanship to 
 consolidate the States into a Nation for general pur- 
 poses, so that they and their people should preserve 
 their safety and liberty only the more securely under 
 the general shield of the Constitution ; but it was a 
 result that the most advanced philosophers and 
 socialists may now wonder at, to find social order 
 and progress practically reconciled. To find order 
 resting upon liberty, which constantly renews and 
 enlarges or^^r axtph w^^^. u cnn,no f^fe>ii :Ls^^.n^.^ 
 
1.2 THE GDMSTQCK LAWS. 
 
 countries, as in France, for example, there has been 
 little j^rogress without revolution. The static ele- 
 ment always seeks to "stamp out" the Liberal* 
 until social convulsions result, with all the outrages 
 consequent upon repression. Do not think this is an 
 idle dream or a glittering generality ; the Constitu- 
 tion is its practical embodiment. By it the people 
 and States join in establishing a government to ad- 
 minister certain special grants of power for specified 
 objects, but all for the general purpose of making 
 liberty the fundamental law of the land. 
 
 To illustrate, by coming to the very point in ques- 
 tion, there is a grant among others, that Congress 
 shall have power " to establish post-offices and post- 
 roads," and then to this and all similar special grants 
 there is one of the incidental powers " necessary 
 and proper " to execute them. (Constitution, Art. 8, 
 §§ 7, and 12.) 
 
 Now these are the only words in the Constitution 
 on the subject of the post-office. It is admitted, by 
 all to be no general or sovereign grant, placing Con- 
 gress in the position of the British Parliament. The 
 only powers granted are such as are necessary, use- 
 ful, or, as Chief-Justice Marshall said, " Appropriate 
 to the end " of establishing, that is, of keeping in oper- 
 ation the post-offices and post-roads. One may well 
 be lost in astonishment at the fertility of the con- 
 struing faculty that can find in these simple words 
 the power for the United States courts to sit upon 
 the decency or the morality of Mr. Ileywood's pam- 
 phlet, and to fine and imprison him, it might be for 
 ten years, if it is found repugnant to the taste of the 
 presiding judge. Ordinarily small fines of $20 to 
 g^mn ((^xo.f^nt for robbery or gross obstruction) are 
 
tHE COMSTOCK LAWs: it 
 
 found sufficient for postal purposes — just enough 
 to remind people of the necessities of the service. 
 The framers of the Constitution, and those who 
 adopted it, were exceedingly and justly fearful of 
 two things; — the granting of criminal jurisdiction to 
 the general Government, and the use of these "inci- 
 dental " or implied powers. Congress was not even 
 allowed to define the crime of treason to the United 
 States, and the special crimes they could punish were 
 expressly named, as counterfeiting, felony on the 
 high seas, etc. 
 
 For all post-office purposes these implied powers 
 are easily ascertained and unobjectionable. But the 
 point is, whether these implied powers can be used, 
 not for any postal purpose, but as the authority for 
 criminal statutes of the most terrible and yet indefi- 
 nite nature, to effect what is supposed to be moral 
 purposes. Can implied powers be used for purposes 
 beyond the objects of the expressed power for which 
 they were implied ? Can implied powers become a 
 source of original criminal jurisdiction outside of 
 the ends for which they were implied as necessary ? 
 Can the part exceed the whole ? The requirements 
 or " conveniency '* of the postal department does 
 not need nor require this extraordinary power. The 
 post-offices and post-roads have been run for a can- d 
 tury without thought that they needed such powers • 
 or protection. The exclusion of matter lessens the 
 utility and income of the department, and in so far 
 frustrates the object of the Constitution. Exclu- 
 sion has therefore been made hitherto only on ac- 
 count of weight or injurious or dangerous character 
 of the articles excluded, etc., on the grounds of the 
 necessity or convenience of the service. This ii 
 
14 THE COMSTOCK LAWS. 
 
 evidently the only true and constitutional ground. 
 "With the meaning of the documents inclosed the 
 post-office has nothing to do, and if they have not, 
 Congress has no authority to punish for sending 
 them. The test of the implied power is, that it 
 should be necessary or proper, i. <?., useful and " ap- 
 propriate to the end," i. c, required to effect the 
 object for which it is implied, and where this neces- 
 sity ceases the power ceases, for it has no ground to 
 stand upon. An implied power can never be an 
 ulterior power. 
 
 The case is well presented by Judge Story in his 
 work on the Constitution in regard to the power to 
 " establish post-roads." Could Congress under 
 this clause construct through the States vast systems 
 of roads, over which the mail could be run, and thus 
 make it authority for unlimited internal improve- 
 ments ? The answer is plain : Congress cannot use 
 this power as a pretext to construct internal im- 
 provements, or to effect any other ulterior purpose, 
 but it may use it when, where, and however it may 
 be necessary or proper for the object of postal com- 
 munication. 
 
 The meaning of mailed matter has nothing to do 
 with the post-office, nor that with the meaning. 
 There is no nece8f?ity nor " conveniency " of the ser- 
 vice that is subserved by this penal law. Therefore 
 it has no support in the grant of the Constitution, 
 and it is a sheer, bold, monstrous pretext and usur- 
 pation. 
 
 It should be remembered that postal questions are 
 far different in this country from what they are in 
 England, where Parliament can do anything except, 
 m it is said, make a man of a woman, or a woman of 
 
THE COMSTOCK LAWS 15 
 
 a man ; that is, physical impossibility is the only 
 limit of Parliamentary power. There the power 
 over the post-offices and people is comparatively 
 unrestricted. But our general Government has only 
 the special powers granted in the Eighth Article of 
 the Constitution and such implied powers as " are 
 necessary and proper to carry those special powers ^ 
 into effect." 
 
 The simple and single word to " establish " post- 
 offices and post-roads was in no wise intended to 
 grant to Congress the British ulterior power of 
 using them after they were established for objects 
 not committed to Congress at alJ, but specially 
 reserved to the people of the States, by Amendments 
 9 and 10. That no such ulterior power was ever 
 intended is clear from history. One of the greatest 
 difficulties in procuring the adoption of the Consti- 
 tution arose from the fear of these implied powers. 
 Every clause was gone over and over in the Conven- 
 tion that framed the Constitution, and in the Con- 
 ventions of the several States, to discover how these 
 powers might be wrenched to destroy the liberties 
 of the people. It is very significant that no one 
 ever then supposed that this power *' to establish post- 
 offices and post-roads " could be other than such as 
 should be simply devoted to that end. Luther Mar- 
 tin and Patrick Henry, who went over every word 
 to find objections, saw none in this clause, and the 
 authors of the Federalist (in No. 42) make their 
 only reference to the subject in these few words : 
 "The power of establishing post-roads must in 
 every view be a harmless poicer, and may, perhaps, 
 by judicious management, become productive of 
 great public conveniency. Nothing which tends to 
 
16 THE COMSTOCK LAWS. 
 
 facilitate the intercourse between the States can be 
 deemed unworthy of the public care." This plainly 
 means that the postal power must be always, and in 
 every way harmless, since it was only for the public 
 " conveuiency " of facilitating intercourse between 
 the States. Little did those patriots dream that a 
 hundred years thence a grant in every point of view 
 so harmless, would grow by construction of an im- 
 plied power into a terrible penal statute that has 
 nothing to do with the " conveniency " of the post- 
 office, or of the people, or with facilitating their 
 intercourse, but which seeks to prevent and limit all 
 these for the ulterior object of supervising morality. 
 Had the possibility of this ulterior power been sus- 
 pected then, the Constitution would never have been 
 ratified. Let any one who doubts it turn over the 
 pages of Elliot's debates on the Constitution (espe- 
 cially the Virginia convention), the Federalist, and 
 the second volume of George Ticknor Curtis' " His^ 
 tory of the Constitution." 
 
 Thus, from the words of the grant and their his- 
 tory, it is clear that no ulterior power of statute- 
 making lurks in the " establishment " of post-offices 
 and post-roads. 
 
 So this grant was understood and executed as 
 "harmless" until 1836, when alleged attempts to 
 circulate insurrectionary matter among the Southern 
 slaves brought a message from President Jackson to 
 Congress on the subject of excluding such matter 
 from the mails. Mr. Calhoun was made Chairman 
 of a special committee in the Senate, and the sub- 
 ject received careful consideration. He evidently 
 wished for the power to exclude from, and to super- 
 vise the mails in the interest of slavery ; but to his 
 
THE COMSTOCK LAWS. 17 
 
 great honor, be it said, he saw and declared plainly 
 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 de- 
 livering such matter in the States which had made 
 its circulation illegal. The question was discussed 
 fully in a Senate of unequal ability, and even this 
 limited restraint proposed by Mr. Calhoun was held 
 by a vote of twenty-five to nineteen to be impossi- 
 ble under the Constitution. (Con. Globe, 1836, pp. 
 36, 150, 288, 23V-9, etc.) 
 
 In the debate Henry Clay said : " When I saw 
 that the exercise of a most extraordinary and dan- 
 gerous power had been announced by the head of 
 the post-office, and that it had been sustained by the 
 President's message, I turned my attention to the sub- 
 ject 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 con- 
 clusion 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 cir- 
 culated, and while in the post-office, could do no 
 harm : it is the circulation solely — the taking out of 
 the mail and the use to be made of them — that con- 
 stitutes the evil. Then it is perfectly competent to 
 the State authorities to apply the remedy. The 
 instant that a prohibited paper is handed out, 
 whether to a citizen or to a sojourner, he is subject 
 to the laws which compel him either to surrender or 
 bum it," 
 
18 THE COMSTOCK LAW& 
 
 Mr. Clay then proceeded to demolish 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 author- 
 ity of Congress to pass laws was in pursuoincc of the 
 Constitutiony 
 
 To the question of Senator Buchanan, of Pennsyl- 
 vania, to the effect that the post-office 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, 
 your own " Honest John " Davis, said: 
 
 " It would be claiming on the part of Government 
 a monopoly — an exclusive right either to send su»«h 
 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 Govern- 
 7nent may take it into its head to prohibit the trans- 
 mission of political^ religious, or even moral or philo- 
 sophical puhlications, in which it might fancy there 
 was something ojfensive ^ and under this reserved 
 right, contended for in this report, it woidd be the 
 duty of the Goveriiment to carry it into effect.''^ 
 
 The debate and vote on this subject were conclu- 
 sive. I^'or even the modified right claimed by Mr. 
 Calhoun few voted with him but his faithful friends 
 of slavery from the South, — and James Buchanan; 
 while with the majority were the great names of 
 the Senate, including Benton, Clay, Crittenden, 
 Davis, and — grandest of all, a name ever sacred in 
 this Hall — Daniel Webster. 
 
THE COMSTOCK LAWS. 19 
 
 The debate was, as I have said, conclusive. 
 Through all the dark night of the slave power, 
 through all the dread necessities of the Rebellion, if 
 the mails were ever violated, it was without the 
 form or countenance of law. The post-office, in law 
 and theory at least, and I believe generally in fact, 
 has since remained the common and impartial ser- 
 vant and friend of all. 
 
 I have cited this debate, and may recur to it again, 
 for two reasons. First, because if you look at the 
 right, reason, and common sense of the matter, it is 
 indeed conclusive; and, second, because by one of the 
 most astonishing legal somersaults ever turned, the 
 Supreme Court of the United States has made this 
 very debate bring out the very opposite conclusion 
 to which the Senator.} arrived. 
 
 If we inquire how this result has come, as in the 
 case of most of our social evils, we must remember 
 the consequences of our civil war. Under the war 
 powers of the Constitution the Government had to 
 use incidental and implied powers to effect constitu- 
 tional but extraordinary ends; and so, through the 
 revenue, excise, postal, income, and other laws, a sys- 
 tem of supervision of the people was inaugurated, with 
 a network of artificial crimes and penalties, as tho^vh 
 the Government could do anything that seemed to 
 it expedient. After the war the habits and prece- 
 dents it induced have, to a great extent, remained. 
 In no other way can the extraordinary mass of legis- 
 lation that this " Agent's " society has obtained from 
 Congress, and some of the State legislatures, be ac- 
 counted for. These laws were, in effect, passed 
 surreptitiously. The mass of the people never heard 
 of them until they were being enforced. They there- 
 
20 2BE" COMSTOCK EAWJL 
 
 fore have no weight as deliberate laws of the Nation 
 or the State. They are the private laws of tho 
 society which obtained them to be put upon the 
 statute books without the knowledge of the rest of 
 the community. In all cases affecting the people 
 generally, the referendum, or at least public notice 
 and discussion, is necessary to make the laws in any 
 proper sense the acts of the people or the nation. In 
 1872 the society obtained from Congress an act that 
 the tickets and circulars of illegal lotteries should be 
 excluded from the mails under a fine of $100 to $500. 
 When the power of the society was consolidated, in 
 1876, they had the word "illegal" stricken out of 
 their statute, so as to exclude all lottery matter from 
 the mails, whether legal in the States or not. Under 
 this act A. Orlando Jackson was induced by a decoy 
 letter of this " Agent," under the false name of J. 
 Ketcham, to send him a lottery circular by mail. 
 The agent thereupon had Jackson arrested, indicted, 
 and tried at New York, in the U. S. District Court, 
 for sending a lottery circular through the mail. He 
 was found guilty, and was fined $100 and imprisoned 
 until payment. To test the law, his very ingenious and 
 able counsel, A. J. Dittenhoefer, Esq., of New York, 
 had, before the trial (there being no appeal from the 
 decision on the trial), applied upon petition for writs 
 of habeas copus and certiorari to inquire into his pre- 
 liminary imprisonment. The petition was denied by 
 the U. S. Circuit Court, and so the matter was 
 brought before the Supreme Court of the United 
 States. 
 
 Observe that the sole que^.tion, aside from the 
 technical and very doubtful one as to the power to 
 issue the writs at all, was as to the legality of these 
 
T&TS COMSTOCK LAWS. 2l 
 
 |)ostal lottery acts of 1872 and 1876. The ground 
 taken by the petitioner's counsel wa* that Congress 
 had no grant of power to pass the acts in question, 
 and therefore they were unconstitutional and void. 
 That was the sole and only question before the 
 court; all beyond the decision of that question w^as 
 oh iter dictum. The briefs of the counsel on both 
 sides of the case, which lie before me, present noth- 
 ing further. The law of 1873, under which Mr. 
 Heywood is imprisoned, was not before the court 
 nor argued at all, nor was the effect of the amend- 
 ments to the Constitution prohibiting Congress from 
 passing any law abridging the freedom of speech or 
 of the press, or forbidding the seizure of property 
 without warrant, upon either of these laws, argued 
 or presented to the court at all. 
 
 It was assumed by the court without argument, 
 that lotteries and the " press " must share the same 
 fate, as though lotteries were the press, and not busi- 
 ness adventures, and not inchided at all under the 
 amendment of the Constitution securing freedom of 
 the press. 
 
 But let us now look for a few minutes at the main 
 points in the decision of the court. Mr. Justice 
 Field of California delivered the only opinion in 
 which the court is supposed to concur. At the start 
 he disposes of the main issue of the case, the only 
 one actually presented and argued, by a singular 
 assumption. It is this : Because the validity of leg- 
 islation regulating what should be carried in the 
 mails as to weight and form and postal charges, has 
 never been questioned, and since such regulations 
 have varied from time to time, therefore he infers, 
 _!iThe power possessed by Congress embraces t^e^ 
 
22 THE COMSTOCK LAWS. 
 
 regulation of the entire postal system of the country. 
 The right to designate what shall be carried neces- 
 sarily involves the right to determine what shall be 
 excluded." This begs the whole question ; for it 
 assumes that matter has been excluded for non-postal 
 reasons. Any argument from legislation and usage 
 is at best of doubtful value, for time does not justify 
 usurpation, but to be of any service whatever, it 
 must be shown that the legislation and regulations 
 have covered ends beyond and ulterior to the pur- 
 poses and ways and means appropriate to the end of 
 establishing post-offices and post-roads. The counsel 
 for the petitioner claimed that for one hundred 
 years, — from the foundation of the Governmoiit up to 
 the lottery laws in question, there had been no legis- 
 lation or regulations except such as were appropriate 
 to the end, i. e., to the running and utility of the 
 Post-office Department, and that the attempt to go 
 beyond this in 3 836 was found to be unconstitution- 
 al in the debate we have referred to, and which he 
 presented to the court. The learned Judge himself 
 by the instances of "weight," " form," " postage," 
 etc., really confirms this, for all such matters are 
 plainly appropriate only to postal ends. But he 
 argues because Congress has regulated as to these 
 matters appropriate to the end, therefore it may do 
 so generally, and as to matters that are not appropri- 
 ate to the end ; that is to say, because Congress is 
 authorized to include and has includer" certain arti- 
 cles that conduce to the utility of the service, there- 
 fore it may exclude others for reasons that have 
 nothing to do with the service, but with certain 
 supposed moral and religious ends. The conclu- 
 sion should be exactly the reverse, for usage can 
 
THE COilSTOCK LAWS. 23 
 
 only prove the legality of acts and regulations in 
 conformity with it, not of those opposed to it. The 
 fact is that the unbroken and unquestioned usage 
 proves, as far as usage can, the conclusion directly 
 oi")posite to the one drawn by the learned Judge. 
 
 In order to sustain the conclusion he reaches, laws, 
 decisions, and regulations, showing that from the 
 adoption of the Constitution down, it had been the 
 usage of the Government to go beyond the necessary 
 and proper ways and means for running the postal 
 department would have been in point ; but no such 
 laws or facts are pretended or found by court or 
 counsel. From the opposite facts presented and 
 even stated by the court, exactly the wrong conclu- 
 sion has been drawn. The correct conclusion is that 
 Congress has power to exclude for postal purposes 
 and reasons and for no other. All other exercise of 
 power of exclusion is a sheer usurpation. 
 
 The learned Judge having thus disposed of the 
 counsel and his case in the way he should not, takes 
 the whole case and more into his own hands. He 
 does this because the wrong conclusion already 
 reached by him brings him as he intimates into 
 apparent, and as we think, into direct conflict with 
 the Bill of Rights of the Constitution, known as the 
 Ten Amendments. How, for instance, can this sup- 
 posed power of Congress to exclude for non-postal 
 purposes be reconciled with the clause, *' Congress 
 shall make no law . . . abridging the freedom 
 of speech or of the press." Or, again, " the right of 
 the people to be secure in their pe?rsons, papers, and 
 effects against unreasonable searches and seizures 
 shall not be violated; and no warrants shall issue 
 but upon probable cause, supported by oath or 
 
24 THE COMSTOCK LAWS. 
 
 affirmation, and particularly describing ne place to 
 be searched and the person or things to be seized." 
 
 That the Constitution was never intended to fjive 
 the ulterior powers claimed is evident enough from 
 these and other clauses which arc utterly incon- 
 sistent with them. The learned Judge, having by 
 reversed logic found these powers in Congress, finds 
 them to be useless unless he can enforce them con- 
 sistently with the Bill of Rights, " and here*' he truly 
 says, "the difficulty attending the subject arises." 
 But the same kind of logic is pqual to the emerg- 
 ency, and in this way ; — he finds rightly that sealed 
 letters and packets are prohibited from being opened 
 and searched while in the mails ; also, that trans- 
 portation and circulation of unsealed printed matter 
 cannot be interfered with, for they are essential to 
 the freedom of the press. 
 
 These are sound and healthy premises, and we 
 expect the only logical conclusion, to wit, therefore. 
 Congress can pass no laws excluding such matters 
 from the mails except for postal reasons, because 
 such laws would abridge the freedom of the press 
 and be void. 
 
 But again the learned Judge has drawn exactly 
 the wrong conclusion. He says, "If, therefore, 
 printed matter be excluded from the mail^J, its trans- 
 portation in any other way cannot be forbidden by 
 Congress." 
 
 It is difficult to imagine a worse specimen of rea- 
 soning than this. The " tJiereforc " works exactly 
 the other way. Because transportation and circula- 
 tion through the mails are, as he says, necessary to 
 freedom of the press, therefore Congress cannoS 
 
TEnS COMSTOCK LATfS. jQ^ 
 
 abridge them or take them away. No other confl^ 
 sion is possible. ^1^ 
 
 Biitthelcarned Judge, to get around his own absurd 
 conclusion, adds that if Congress does abridge and 
 take them away, then it cannot forbid the transpor- 
 tation in any other way. This only makes the logic 
 worse; it grants that the exclusion is an "abridge- 
 ment" and then seeks to obviate that conclusion by 
 saying that Congress must'nt take away its trans- 
 portation as merchandise ! That is, the press, before 
 and since the adoption of the Constitution, has cir- 
 culated its " letters, newspapers, and pamphlets " by 
 means of two hands — one, the mail, the other, as 
 freight; now says the learned Judge, Congress can- 
 not pass any law abridging the freedom of the press, 
 which is its circulation, but if it does and so cuts off 
 one of its circulating hands, it must leave the other. 
 As though cutting off this right hand was no abridge- 
 ment ! The correct conclusion is that Congress 
 cannot cut off either of these hands. Certainly 
 leaving one is no excuse for lopping off the other. 
 Every attempt to make sense of this part of the 
 opinion must be hopeless. Shakspere needed but a 
 iouch of this reasoning to finish the character of 
 Dogberry, and crown his own genius as the poet of 
 absurdity. 
 
 But one step in absurdity not only leads to an- 
 other, but surely leads to unpleasant contrast with 
 people who are not absurd. And so the learned 
 Judge finds that his singular logic brings him into a 
 position of direct opposition to the great jurists and 
 statesmen who had settled the question the other 
 «ray in the Senate in 1836. He brings all of these 
 {^eat men, however, apparently over to his side by 
 
26 THE COMSTOCK LAWa 
 
 a legal somersault as absurd, false, and amusing as 
 his former conclusions and logic. He says it is evi- 
 dent that the views of these great men "were found* 
 ed upon the assumption" that Congress had not this 
 power, because the postal grant to Congress is exclu- 
 sive, and enables Congress to prohibit the transpor- 
 tation of newspapers and pamphlets over postal 
 roads by any other way than by the mails. Now, he 
 says, we will just turn back on the Senators and 
 capture their ground by making this great court 
 hold just the contrary of their assumption. "We 
 don't think," he says, " that Congress possesses the 
 power to prevent the transportation in other ways, 
 as merchandise, of matter which it excludes from 
 the mails." Now, first, this is absurdly irrelevant. 
 The only question before the Senators was as to 
 postal transportation, and that is the only one in 
 hand now. Transportation "as merchandise" is 
 entirely another affair. It belongs to commerce, 
 which is under the control and regulation of Con- 
 gress by another special grant. But in the next 
 sentence the learned Judge grants the very ground 
 of the Senators, to wit, that Congress has exclusive 
 postal power, i. c, power "to put down rival postal 
 systems in the carrying of letters, newspapers, and 
 pamphlets." If, therefore, Congress excludes such 
 matter from the mails, except for postal reasons, it 
 can and does take away the use of the post-offices 
 for ulterior reasons, which is the very usurpation 
 the Senators complained of; and also it abridges the 
 freedom of the press, which it is expressly forbidden 
 to do. How absurd to say Congress may do both of 
 these things because it has not restricted commerce 
 in freights. Mail matter is sent under the postal 
 
THE COMSTOCK LAW3. 27 
 
 laws "for intelligence;" freights are sent as mer- 
 chandise for entirely different purposes. News- 
 papers, etc., "as merchandise," may affect the junk 
 dealers, but have nothing to do with the freedom of 
 the press. Congress cannot gain the right to exer- 
 cise ungranted and prohibited powers under one 
 clause of the Constitution by declining to exercise a 
 power which it happens to have under another 
 clause. It gains no power to pass Alien and Sedition 
 laws because it refrains from suspending the writ of 
 habeas corpus. Yet one of these is as much related 
 to the other as commerce is to the postal grant and 
 service. 
 
 The learned Judge does not say, but his argument, 
 to be good for anything, implies, that the Senators 
 denied the existence of this ulterior power ordy be- 
 cause they believed in this exclusive postal power 
 and did not have the wit to make this " merchan- 
 dise" discovery. We may safely grant they did not 
 make it. They were not equal to its incoherence. 
 It may be regretted that it was not mentioned, for 
 it has the flavor of an Irish " bull," and would per- 
 haps have relieved the bitterness of one of the first 
 phases of the great slavery struggle. 
 
 But the position which the argument of the learn- 
 ed Judge thus assigns to the Senators is not, in fact, 
 correct. They founded their conclusion against the 
 power of Congress to exclude for non-postal pur- 
 poses not only upon the exclusive character of the 
 postal grant, but also, and chiefly, upon the grounds 
 taken by every sensible man since, to wit, that the 
 power is not included in any grant to Congress, and 
 would also be a plain violation of the Bill of Rights. 
 The argument from Ihe exclusive power of Congresi 
 
28 THE COMSTOCK LAWS. 
 
 was but one, and only a minor, argument, although 
 good in their hands, as we have shown. The ex- 
 tracts already cited show that they took deeper and 
 broader grounds; and extracts confirming it could 
 be readily produced, from the same debate, to great 
 length. Indeed, Mr. Calhoun himself finally said 
 that the claim for this alleged power had been aban- 
 doned by the friends of the President. 
 
 Mr. Davis said, he " denied the right of the Gov- 
 ernment 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 — 
 a legislative power at most." 
 
 Mr. Webster expressed himself as " shocked " at 
 the unconstitutional character of the whole proceed- 
 ing, he said : "Any law distinguishing what shall or 
 shall not go into the mails, founded on the senti- 
 ments of the paper, and making the deputy post- 
 master a Judge, he should say was expressly uncon- 
 stitutional." 
 
 He denied that there was any grant of such 
 power, and Mr. Clay, as we have seen, was emphatic 
 on this point. Any who doubt have but to read that 
 debate in the Congressional Globe and Appendix of 
 1836 to find that the Senators took every ground 
 except the absurd merchandise theory of this 
 opinion. 
 
 But lastly, this assumption of the learned Judge is 
 amusingly absurd in its practical results. He makes 
 the Senators not to have known what they were 
 about to little purpose. He would then have 
 obtained power to exclude " the insurrectionary," as 
 now " the demoralizing," matter from the mails by 
 
THE COMSTOCK LAWS. 29 
 
 merely prohibiting Congress from parsing laws to 
 prevent its being sent as merchandise by express, 
 etc. — and thus it may be sent to any extent. Con- 
 gress may throw out of the post-office such " objec- 
 tionable " matter as it chooses on any whim or fancy, 
 but then, he says, it cannot touch the same matter 
 expressed as merchandise over the same postal route. 
 But if the same matter can be carried by express, 
 why limit the income and utility of the post-offices 
 by throwing it out of them under such terrible pen- 
 alties ? Why should this simple difference between 
 postal matter and merchandise subject the sender to 
 ten years' imprisonment ? Mr. Calhoun doubtless 
 did not think of this stroke of statesmanship ! 
 
 Having thus wonderfully ciphered out the power 
 in Congress to pass these ulterior laws, his former 
 absurdities bring the learned Judge to the practical 
 difficulty that they cannot after all be enforced with- 
 out manifestly violating the Bill of Rights. He 
 undertakes therefore to devise and advise how it may 
 be done — information of especial value to the "Agent" 
 who had the laws passed, and receives half the fines. 
 The two ways especially sanctioned by this learned 
 Judge are, the post-office decoy system, and the post- 
 office espionage system. Two plainer violations of 
 the Bill of Rights, two meaner outrages upon lib- 
 erty, decency, and morality, have never been perpe- 
 trated among our people. The learned Judge did 
 not invent them. They are old instruments of 
 the Christian Inquisition, but the "Agent " under 
 these laws was the first to introduce them as modes 
 of administration of our Constitution, and the learned 
 Judge is the first in this country to throw over them 
 the benignant smile of judicial approval. I'his he 
 
80 THE COMSTOCK LAWa 
 
 does in a very smooth and graceful way. He admita 
 that it would not do to examine, without warrant, 
 into " letters and sealed packages " in the search for 
 prohibited matter, but he says these regulations "may 
 be enforcedupon competent evidence obtained in other 
 ways, as from the parties receiving the letters or 
 packages, or from agents depositing them in the 
 post-office, or others cognizant of the facts." " And 
 as to * objectionable ' printed matter, which is open 
 to examination, the regulations may be enforced in 
 a similar way, . . . and in some cases by the 
 direct action of the officers of the postal service. In 
 many instances those officers can act npon their own 
 inspection^ and from the nature of the case, must act 
 without other proof, as where the postage is not pre- 
 paid, or where there is an excess of weight over the 
 amount prescribed, or where the object is exposed 
 and shows unmistakably that it is prohibited, as in 
 the case of an obscene picture or print. In such 
 cases, no difficulty arises, and no principle is violat- 
 ed, in excluding the prohibited articles or refusing 
 to forward them. The evidence respecting them is 
 seen by every one and is in its nature conclusive." 
 
 The "Agent," who is also the special post-office 
 agent of the Government under this law and decis- 
 ion, operates a decoy system in this way : He sends 
 letters of apparent approval for any article, paper, 
 circular, or advertisement, and when received by mail 
 if he thinks it is " objectionable," although the letter 
 or packet was sealed, he has his correspondent arrest- 
 ed and locked up, and if it is a lottery circular, or 
 "offensive to the decency" of the United States 
 District Judge before whom the "Agent" brings 
 the case, he as judge of the law practically 
 
THE COMSTOCK LAWS. 81 
 
 orders a verdict of guilty, and may send the victim 
 to prison for ten years, with a fine of $5,000, and 
 there is no appeal whatever provided in such cases, 
 and one-half of the fine goes to the Agent " who put 
 up the job." 
 
 Or again, if you send any newspaper or printed 
 matter, the case is worse, for in addition to the decoy 
 system, this special agent, or any other " officer of 
 the postal service," instead of being limited in his 
 postal duty to seeing that th^ weight and postage is 
 correct, and that it does not contain matter subject 
 to letter postage, has also imposed upon him the 
 moral duty of censor of the press, that is, he is, 
 " upon his own inspection," to sec that the printed 
 matter is not objectionable, " as in case of obscene 
 picture or print " or in cases of lottery circulars, etc., 
 etc., and if he finds that it is " objectionable," then 
 " no principle is violated" in his " excluding the pro- 
 hibited articles, or refusing to forward them." But 
 suppose you do not know or believe the matter you 
 may have thus sent is " objectionable," and so you 
 go innocently to inquire why it has not gone to its 
 destination ? Then the "Agent " is waiting for you, 
 arrests you at once; there is no certainty that the 
 delicate " decency " of a U. S. District Judge may 
 not be offended ; then you may go to prison for ten 
 years, under a fine of $5,000, and the "Agent " is re- 
 warded for his diligence by half the fine, and you 
 have no appeal. 
 
 This is the kind of work that was done in the 
 cases of Lant, Jackson, Hey wood, and others I could 
 name; and the "Agent " is waiting for your indig- 
 nation to subside to push on " the work " of " stamp- 
 
S2 THE COMSTOCK LAWS. 
 
 ing out " the free press under tne approval of the 
 highest court in the land ! 
 
 If laws that have these results do not " abridge 
 the freedom of speech and of the press " how can it 
 be done? How "secure" you are in your letters, 
 papers, and effects, when you entrust them to the 
 " officers of the postal service " to find that they are 
 stopped without warrant, or taken out as a decoy oi* 
 trap to get you into States Prison by use of them as 
 evidence, and to enable the informing agent to get 
 half of any imposed fine ! Under this decision the 
 pretense of safety of papers and liberty of circulating 
 are worse than vain. The very muniments of personal 
 liberty are a snare and a delusion, for they are turned 
 into instruments for its destruction. The story is 
 that the garrison who surrendered to a Turkish 
 Pasha were solemnly assured by him that not a drop 
 of their blood should be shed. After the surrender 
 he immediately ordered every one of them to be 
 hung, and so kept his promise to the very letter. 
 What morality is it that induces a Judge of the 
 Supreme Court to keep the precious guarantees of the 
 Bill of Rights in the same way ? 
 
 Yet it is in the name of " public morals " that this 
 result is reached. He concludes by the consoling 
 assertion that " the object of Congress has not been 
 to interfere with the freedom of the press, or with 
 any other right, but to refuse mail facilities for the 
 distribution of matter deemed * injurious to the 
 public morals.' " Then for the first time the hitherto 
 undisclosed reason for going beyond the issue pre- 
 sented by counsel and the case — the motive for this 
 long obiter dictum — appears ; the learned Judge at 
 last by force drags in the act of March 3, 18V3, the 
 
THE COMSTOCK LAWS. 83 
 
 one under which Mr. Hey wood was convicted, and 
 renders it constitutional as far as his word can do 
 it by way of illustration, without its being in issue 
 before the court or the subject of argument. To do 
 this he quotes the main section of the law of 1873, 
 and then settles the whole matter in two sentences, 
 which when we consider the importance of the con- 
 sequences, fill us with astonishment. lie says: 
 
 "All that Congress meant by this act was, that 
 the mail should not be used to transport such cor- 
 rupting publications and articles, and that any one 
 who attempted to use it for that purpose should be 
 punished. The same inhibition has been extended 
 to circulars concerning lotteries — institutions which 
 are supposed to have a demoralizing influence upon 
 the people." 
 
 All the learned pretense of " reasons " is here swept 
 away. It is at last plainly avowed and averred that 
 Congress has the power to exclude, and to run the 
 post-office for moral and ulterior grounds, and for 
 and on those grounds only to punish with any penal- 
 ty it may naxie, even of life, any attempt to send 
 any thing or publication through the mail that it 
 may " deem " or " suppose " to be " injurious to 
 public morals " or of " demoralizing influence." 
 
 As our President said here to-night, if this is the 
 law, the Constitutional Bill of Rights is not worth 
 " two brass buttons," nor one. "All that Congress 
 may mean " by any other act will be to exclude 
 "libelous and seditious" publications, as under the 
 Sedition Law, or " incendiary and insurrectionary " 
 publications," as under Mr. Calhoun's law, or, as soon 
 may be the case, all " revolutionary," " communistic," 
 "socialistic," "destructive," "riotous," "blasphe- 
 
84 THE COMSTOCK LAWS. 
 
 mous," "irreligious," etc., etc., articles and publica- 
 tions, just as, in its unlimited power and wisdom, it 
 may at any time ordain, with penalties of line and 
 imprisonment, or of life and death. And yet all this 
 will have nothing to do with the freedom of the 
 press or the liberties of the citizen! If you examine 
 you will find that the First, Fourth, Fifth, Eighth, 
 Ninth, and Tenth, which are the main Articles — the 
 very substance — of the Constitutional Bill of 
 Rights, are violated by these laws and this decision, 
 and that if they are to stand, this Bill of Rights is 
 not worth the paper upon which it is piinted. 
 
 But not only is the Constitution and freedom of 
 the press and people overthrown by these laws and 
 this decision; the United States courts receive 
 thereby an unconstitutional, dangerous, and most 
 indefinite enlargement of their criminal jurisdiction. 
 The case of Mr, lley wood ought to bring this danger 
 home to you. Our fathers feared nothing more than 
 this. The United States courts were regarded by 
 them as, in fact, what they are — foreign tribunals to 
 the mass of the people. The judges sit for life, 
 without responsibility to the people ; few lawyers 
 know the practice ; the juries are so selected that 
 they are " packed " in effect if not by design. The 
 districts are so large that even in the same State the 
 accused rarely has a " jury of his peers or vicinage;" 
 and, most surprising of all, in this criminal class of 
 cases there is no appeal whatever ! Think of one 
 fallible man, under the most indefinite of laws, with 
 the absolute power of fine and imprisonment, and 
 even, in some cases, of life and death, in his hands, 
 and no appeal! As those who were present at the 
 trial and sentence of Mr. Heywood describe the out- 
 
THE COMSTOCK LAWS. 55 
 
 rage, it reminds me of one of Judge Jeftrej^'s trials, 
 and illustrates well the dangers to which I refer. 
 The Judge decided practically the law and fact; and 
 when the jury hesitated, he wrung a verdict from 
 them by a charge "in a roaring passion." Two 
 judges sat and gave the victim "a double dose" be- 
 cause he had not promised to give up his constitu- 
 tional right to send his pamphlet " as merchandise," 
 and would not repent of having sent it at all — thus 
 acting, not even as officers of this infamous law, but 
 
 beyond it and as executioners and "confessors" of 
 
 * 
 the new Inquisition. As Jefferson and Henry and 
 
 Luther Martin said, * The United States will be con- 
 stantly gaining power by construction and the 
 people constantly losing: ; — judge you in which way 
 the balance will run. Where an inch is given an ell 
 will be taken.' The lesson is that if you would not 
 have Liberty leave you she must be guarded in her 
 home among the States and people, and not be trust- 
 ed out to United States judges and officials. 
 
 "But what," says the "Agent," like another 
 " Statesman" of New York, who stole our money — a 
 trivial matter to our liberties — "what are you going 
 to do about it? I have the law and the courts, and 
 the Supreme Court itself." 
 
 What w^e do^ will depend upon what we are. If 
 unworthy of our liberties, we shall lose them; if we 
 rise to the height of the issue, we shall place them 
 upon a firmer foundation than ever. Do not be 
 appalled because the Supreme Court is against us; 
 that may be the very condition of success. " Two 
 things you can do when you are beaten," said a 
 famous New York judge to a young lawyer; " one 
 is to appeal ; the other is to go down to the tavern 
 
86 THE COMSTOCK LAWS. 
 
 and abuse the judge." But in the Supreme Court 
 we are told there is no appeal, and so Fancuil Hall 
 has been kindly granted to us by your Comraon 
 Council instead of the tavern. — Think a moment 1 is 
 there no appeal ? In all great cases in a republic, in 
 all cases touching the rights and liberties of the peo- 
 ple, who are the final judges of the law and the fact? 
 Plainly the people themselves! The Supreme Court, 
 being always retrograde and conservative, is almost 
 sure to get on the wrong side whenever issues of 
 liberty and progress are presented. They go for the 
 old and for poicer^ the people go for the new and 
 for liberty, and in such cases they and their govern- 
 ment have never failed to reverse the court. The 
 decisions of the Supreme Court of the United States 
 upon questions of popular rights and liberties are 
 the Apocrypha of our constitutional law. The re- 
 versal of them has almost become a rule. Let me 
 recall a few prominent cases none can forget. 
 
 John C. Calhoun said that up to his day "only one 
 great constitutional question had been settled, to 
 wit, the unconstitutionality of the Alien and Sedition 
 laws, and that question had been settled * against 
 the Supreme Court.' " Judge Story sought to parry 
 this thrust by showing that these laws were never 
 really before the court. True; the Kepublicans 
 knew enough to keep them out of that court, and 
 thus to avoid an adverse decision; for decisions 
 were, in fact, rendered in favor of those laws in 
 every other Federal court. 
 
 Then came the question of the United States 
 Bank. Andrew Jackson said, when the decision 
 sustaining the constitutionality of the United States 
 Bank came, "Now Marshall has made his decision. 
 
THE COilSTOCK LAWS. 87 
 
 let him enforce it.'* The people sustained "Old 
 Hickory." The country was saved from ihe domin- 
 ion of a moneyed aristocracy, and the court's decis- 
 ion took its place in the Apocrypha wilh the Sedition 
 La^^'. 
 
 Then came the slavery agitation. If this question 
 of *' insurrectionary matter" in the mails had come 
 before the Supreme Court then, there is little doubt 
 but that it would have registered the will of the 
 controlling slave power. 
 
 Of the constitutionality of the Fugitive Slave law 
 and of all of its infamous details " the court had no 
 doubt." Then the Drcd Scott decision — who can 
 forget ? 
 
 Then the habeas corpus decisions ngainst Lincoln 
 and the war power of the Constitution; only by dis- 
 regard of which decisions the Nation lives. 
 
 Then came the first legal-tender decision, when 
 General Grant, who had saved us from the rebellion, 
 lost all patience and had to save us from this court 
 by taking off two judges bodily, and putting others 
 there who could see that the war-contracts of the 
 Nation were constitutional and had to be kept. 
 
 And now, at last, comes this Jackson-lottery-postal 
 case — in many respects the most insidious and dan- 
 gerous of them all. 
 
 What shall be done about it ? The decisions of 
 this court always, of course, settle the cases decided 
 as to the litigants. It is settled, for instance, that 
 Jackson had to pay his fine to get out of jail. I3ut 
 that is all — unless the people choose to let it settle 
 more. The Supreme Court is a final kgcd tribunal 
 in the cases before it, but not a final social, political, 
 and» above ^1, not a theological, religious, or moral 
 
88 THE COMSTOCK LAWa 
 
 tribunal. It settled that Dred Scott was a slave, 
 but the people thereupon decided that every other 
 Dred Scott should be free. That the post-ofHces are 
 decoy traps and under the "moral" espionage of 
 the officials is the sum of this decision. The people 
 may demand that the post-offices must be free, equal, 
 and safe to all; if we have the courage of the issue, 
 they will so demand. Remember that every great 
 and successful party in this country has had the 
 adverse decision of the Supreme Court of the United 
 States as its very corner-stone. Thus, the Republi- 
 can party of Jefferson rested upon the Alien and 
 Sedition Law decisions; and the only regi'et that 
 lingers around the memory of your noble John Ad- 
 ams, whose bust stands behind me, is that he did not 
 trust the people; that he assented to this law — for 
 he never approved it. 
 
 Then the great Democratic party of Jackson was 
 founded upon opposition to the abuse of implied 
 powers, which culminated in the famous United 
 States Bank decision. 
 
 Then the Republican party of Lincoln; — that was 
 really founded by the adverse Fugitive Slave law 
 and Dred Scott decisions of this very court. 
 
 Now we have the decision that may found another 
 party. How far Liberalism is to become a political 
 power in this country will depend upon the delay of 
 Congress in repealing this law. I hope it may never 
 become a political party at all. I dislike the thought 
 of moral or religious political issues. Let all rea- 
 sonable, moral, and persuasive means by petition and 
 otherwise, be used first ; but if that is unavailing, 
 let every Congressman know that he has a new 
 source of danger at the polls. The Liberal party is 
 
THE COMSTOCK LAWS. 89 
 
 youDg now, just beginning to see that it has a call 
 to become organized for protective, social, and relig- 
 ious purposes. But, young as it is, it must meet this 
 issue with a decided prote8t^ a protest that will 
 keep this infamous decision from ever becoming the 
 * law of the land ' any more than those I have named. 
 It is the only party that has the will or the courage 
 to meet this question. The others will lie supinely 
 by and be bulldozed out of their liberties by the cry 
 of obscenity. The real growing end, the priceless 
 new life of the nation and of the people, falls to its 
 care and charge, and that too at a period of our 
 country's history when nothing can be more danger- 
 ous than repression, when repression will be but an- 
 other name for revolution. 
 
 The real Constitution of the countrj^ is this new 
 life, this liberty, out of which the written Constitu- 
 tion grew, and a new and improved order is to grow. 
 That liberty is the priceless treasure that Patrick 
 Henry was so afraid to commit to a federal power 
 that might become a federal tyrant. * The spirit of 
 liberty, and the maxims of liberty — they are the 
 true Constitution of the American people,' he con- 
 tinued to repeat, with a wisdom that De Lolrae and 
 Mackintosh and more recent political philosophers 
 have now more fully disclosed. *' Constitutions 
 grow, and are not made," they tell us. They are not 
 dead pieces of parchment, but living organizations 
 that enlarge with the people because they are the 
 living skeletons of their life. They g-ow by con- 
 stant construction. All great questions of liberty 
 and government are with us, therefore, questions of 
 constitutional construction, too great to be decided 
 by any court. Every decLiiou against the " Ameri- 
 
40 ' THE COMSTOCK LAWS. 
 
 can spirit" that Patrick Henry invoked has been 
 overruled. 
 
 And now the deepest question of all is touched — 
 the liberty that is the heart of the living social or- 
 ganism — the birthright secured to us in the li.U of 
 Rights by Massachusetts and Patrick Henry and 
 Jetferson, as the very condition of accepting the 
 written Constitution at all, is to be stricken out. 
 Will you submit to this ? If you acquiesce, the Ret- 
 rogrades and Conservatives will have full pov/er and 
 control of both Government and people henceforth. 
 The only protection for the Liberal minority, who 
 are the new growing and precious life, upon which, 
 as in a plant, the whole progress of our national and 
 social progress depends,will be gone forever. While, 
 therefore, ycu have voice or vote, unceasingly let 
 them be raised for the repeal of this law, in protest 
 against this stupid decision, and in assurance that 
 the people will acquiesce in it as 'the law of the 
 land,' never, never, never! 
 
 But in our indignation let us not be unjust to the 
 order that the written Constitution ordains and sus- 
 tains. Liberty, progress, and order are all harmoni- 
 ous in a democatic republic, and must sustain each 
 ot'ier. While we criticise with utmost freedom the 
 de'-*i^ions of our highest court, we shall not forget its 
 ni'ces>ity or 'its great service^* as a great legal tribu- 
 nal. L. t no one suppose that the opinion we have 
 just reviewed is a specimen of its statesmanship or 
 re:x>oning. That is not a legal, but a moral and re- 
 ligious decision; and under a "religious duress" 
 wiio is responsible? Where the giant Superstition 
 throws his shadow the powers of the mind are para- 
 lyzed and even reversed. Pascal was prostrate be- 
 
THE COMSTOCK LAWS. 41 
 
 fore the cross. "The mighty intellect of New- 
 ton" stood before the " Prophecies " like that of a 
 rain-maker before his fetich. Thas tuch an opinion 
 could have been " handed down " from the highest 
 court in our land proves, as nothing else could, the 
 necessity of a Liberal sect and party in America. 
 
 The trouble with these Judges and the '* Society " 
 they are sustaining is that they are conservatives, 
 and also at heart Infidels. They have no faith in 
 the integrity of the Universe, or the goodness of 
 Man. The one is subject to miracles — the other to 
 total depravity. The laws of the first may be set 
 aside any moment by their God, and if man is not 
 controlled by the " Agents " of the same God, if a 
 free press and a free speech are really allowed, then 
 those who enjoy them will " ruthlessly trample under 
 foot the most sacred things, breaking down the 
 altars of religion, bursting asunder the ties of home, 
 and seeking to overthrow every social restraint." So 
 it seems to them, and they have given us a decision 
 from the fears of their hearts instead of from the 
 clearness of their judicial heads. Mr. Justice Strong 
 even wishes to put God into the Constitution The 
 People are not enough for it to rest upon. 
 
 " Oh ye of little faith," the laws that mould " the 
 lillies as they grow " prevail, too, through the human 
 world. The religions, and the altars, and the ties, 
 that need to be preserved by " restraints " of uncon- 
 stitutional laws and decisions are condemned by that 
 fact as "superstitions." The struggle you are 
 opposing is really the effort of human nature to rise 
 to a newer, purer, and truer social state — to a relig- 
 ion so consonant to human nature that it will be a 
 duty and not a restraint — to an altar not red with 
 
42 THE COMSTOCK LAWS. 
 
 the blood of sacrifice, but loaded with the gifts of 
 gratitude to Humanity for liberty and welfare 
 achieved. 
 
 What is profanity and obscenity anyway but the 
 corruption and disintegration of theology? It is 
 only depraved theologians who misuse theological 
 names, and turn purity into obscenity in word and 
 deed. Liberty, knowledge, truth, and health will 
 scatter both as the pure breeze clears the nois'ome 
 air. To purify the fountain, do not break or ob- 
 struct it, but let the waters run fresh and clear. 
 
 Thus we find that this unconstitutional espionage- 
 law is also impolitic and injurious to morals. Its 
 repeal is justly called for upon both grounds in the 
 petition referred to. A post-office regulation that all 
 matter should be inclosed, and that postal cards 
 should contain nothing that could be offensive to 
 those to whom they are sent or to the public, is all 
 that is necessary. This matter of the j»ostal-cards 
 is entirely in the power "of the department as a 
 necessary postal regulation. It is evidently inserted 
 in the law in question only to give it the color of 
 necessity. If it is thought best to retain the form of 
 the law, it should be materially modified so as to be 
 within the postal powers and purposes only. 
 
 This suggests the last point I shall touch, that is, 
 public protection from actual obscenity. That is a 
 matter reserved by the Constitution to "the People 
 and the States," as Mr. Clay said as to incendiary 
 matter, and they have only to do their duty. The 
 price of purity, as of libert}^, is eternal vigilance, 
 and no law can remove the necessity of its exercise. 
 The principal trouble is said to be with children and 
 schools. The remedy is the power and thq duty 
 
THE COMSTOCK LAWS. 43 
 
 which the common law gives to and imposes upon 
 parents, guardians, and teachers, to see to it that 
 they know what their children and wards read. A 
 word to the postmaster to deliver printed matter 
 sent to them to the legal guardian, so that he can 
 distribute it, is all that is necessary. If tried, I do 
 not think that much obscene matter will ever come. 
 Instead of it will probably be found dime novels, 
 sensational novels, and boys' and girls' newspapers, 
 and Sunday-school trash — all as " corrupting," " de- 
 moralizing," and dangerous, in fact and effect, as 
 any obscenity. As to grown people, and public de- 
 cency, the matter will be taken care of, as now, by 
 the State and municipal regulations. You have 
 long-standing and sufficient laws on the whole sub- 
 ject in Massachusetts; and if Mr. Ileywood had 
 been found guilty under them, I should have left 
 the matter to you, as her citizens. I should never 
 have come here to enter a protest. But the case 
 is far different when a citizen of New York comes 
 here and arrests and convicts under a law of the 
 United States and by their pretense of authority. 
 Where he goes for such purposes, I felt it a duty, at 
 no little sacrifice, to follow and protest. With what 
 use and effect this protest has been made you must 
 determine. The net of legal precedents woven for 
 others will be woven for you. The birthright of 
 American liberty, it is the tradition of this Hall 
 that you will protect. The Past has made it your 
 duty. If that birthright is sold or lost, for any 
 object or upon any pretense, however moral or spe- 
 cious, the fact iSy it will be gone ; and when, Esau- 
 like, you seek it, after many days in need, and even 
 with '* sorrowing and tears," you shall find it not ! 
 
44 THE COMSTOCK LAWS. 
 
 TO rREEDOM. 
 
 Freedom ! Thou art not, as poets dream, 
 
 A f vir young girl, with light and delicate limbs, 
 
 Ad w.ivy tresses gushing from the cap 
 
 With which the R >man master crovvned his slav* 
 
 "Whca he took off the gyves. A bearded man, 
 
 Armed to tbe teeth, art thou ; one mailed hand 
 
 Gra-ps the broad shield, and one the sword ; thy brow," 
 
 G oi ious in bea ity though it be, is scarred 
 
 With loljeDS of old wars ; thy massive limba .' 
 
 Are strong with s'lugg-itig. . . . 
 
 . . . . Tyraany himself, 
 
 Tby oneray, although of reverend look, 
 
 Hoary with m=^ny years, and far obeyed. 
 
 Is liitr born ihaa luoa ; and as he meets 
 
 The grave defiance of thine elder eye, 
 
 The usurper trembles in his fastnesses. 
 
 Thou Shalt wax stronger with the lapse of years. 
 Bat he shall fade iato a feebler age- 
 Feebler, yet subtler. lie shall iceave his snares^ 
 And Sj-ruifj iJiem on thy careless si-^ps, and clip 
 Ula loitlKred hands, and from their ambush call 
 Ilii hordes tjfall upon thee. He shall send 
 Quaint ma-kers, iveariag fair and gallant forms 
 
 1 o c itch thy gaz?, and, uttering graceful words, 
 To charm iby ear ; while his sly imps, by stealthy 
 Twine round thee thread f of steel, light thread on thread 
 271 it grow to fetters, — or hind down thy arms 
 
 With chains contained in chaplets. Oh, not yet 
 May'st thou unbrace ttiy corslet, nor lay by 
 Tuy sword — not yet, O Freesom 1 close tay lids 
 In slumber ; for thine enemy never sleeps. 
 And thou must watch and combat till the day 
 Of the new earth and heaven. 
 
 — WUliam Cullen Bryant. 
 
THE COMSTOCK LAWS. 45 
 
 JUDGE FIELD'S OPINION IN THE 
 JACKSON CASE. 
 
 SUPRBME COURT OF THE UNITED STATES. 
 
 Number G {'iriginal). — October Term^ 18t7. 
 
 In the raster of \ On petition for wrHs of habeas 
 A. OrUndo Jackson, f corpus and certioriri. 
 
 1. — The power vested in Congress to establish ^'pof^t-offices 
 
 an.l poet-roads'' embraces the regi)Ution of the entire 
 
 postal system of the country. Under it Congress msy 
 
 esignate wliat shall be carried in the mail, and wh -t 
 
 shall be excluded. 
 
 2. — In the enforcement of regulations excluding matter 
 from the mail a distinction is to be made bet\veen dif- 
 ferent kinds of mail matter; between what is intended 
 to be kept free from inspection, such j».s letters and 
 sealed packages subject to letter po>^taf^c ; an J what 
 is open to inspection, such as newspapers, maga- 
 zines, pamphlet?, and other printed matter, purposely 
 left in a condi'ion to be examined. 
 
 8 — Letters a^d sealed packages subject to letter po«tage in 
 the mail can only be opened and ex!\mined under Lke 
 warrant, issued upon similar oath or affirm%tion, par- 
 ticulatly describing the thing to be seized, as is re- 
 quired when papers are subjected to search in one's 
 own household. 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, wher- 
 ever they may be. 
 
 4. — Regulations against the transportation in the mail of 
 printed matter, which is open to examination, can- 
 not be enforced so as to interfere in any maener with 
 the freedom of the press. Liberty of circulating i* 
 essential to that freedom. When, therefore, priotecl 
 
46 THE COMSTOCK LAWS. 
 
 matter is excluded from the mail, its tranpportf tion 
 ia any other way cannot be forbidden by Con^reB!?, 
 
 5. — Regulations excluding matter from the mail may be en- 
 forced through the CDurts, upon competent evidence of 
 their violation obtained in other vvrays than by the un- 
 lawful inspectioa of letters and sealed packages ; and 
 wiih respect to objectionable printed mailer, op n to 
 examination, they may in som*^ cises also be enforced 
 by the direct action of the f -flayers of the postal ser- 
 vice upon their own inspection, as where the object 
 is exposed and shows unmistakably Ihn it i^ pronib- 
 iteJ, as in the case of aa obs ene picture or print. 
 
 6. — When a party is canvicted of an cfFense, and sent^^nced 
 to pay a fine, it is within the discretion ot the court 
 to order his imprisonment until the fine is paid. 
 
 Mr. Justice FIELD delivered the opinion of the Court. 
 
 Section 3.894 of the Revised Statutes provides t^at "No 
 letter or circular concerning [illega ] lot'eries, sociUed gift- 
 conceits, or other similar enterprises offering prizes, or con- 
 cerning schemes devised and intended to deceive and de- 
 fraud the public for the purpose of obtaining money under 
 false pretenses, shall be carried in the mail ;" and that " any 
 person who shall knowingly deposit or send anything to be 
 conveyed by mail in vi )latio!i of this pection, sh&ll be pun- 
 ishable by a fine of not more than five hundred dollars nor 
 leas than one hundred d oiUra. wiih costs of prosecution." 
 By an act passed ia July, 1876, the word •' illegal" was 
 stricken out of the section. Under the law as thus amend- 
 ed the petitioner was indicted, in the Circuit Court of the 
 Uoiied Slates for the Southern District of New York, for 
 knowingly and unlawfully depositing, on the 23 \ of Fehru 
 ary, 1877, at that district, in the mail of the United S nr.es, 
 to be conveyed in it, a circular concerning a lottery off- nng 
 piizea, inclosed in an envelope addre-sed to oae' J. K-t- 
 cham, at Gloversville, New York. The indictment s-ets 
 forth l6e offense in separate counts so as to cover every 
 form in which it could be stated ujder the act. Upon be- 
 ing arraigned the petitioner stood mnte, refufring to plead, 
 and thereupon a p=ea of not guilty was entered in h s he- 
 half by order of the court, (Rev. St., Sec. 1,032.) He was 
 subsequently tried, convicted, and sentenced to pay a fine 
 
THE COMSTOCK LAWS. 47 
 
 of one Imndrei dollars, with the costs of tae pro3ecutr)n, 
 and to be committed to the county j-iil until the fine aad 
 costs were p^id. Upon his commitoient, which fo.lowed, 
 he presented to this caurt a petition alleging that he was 
 imprisoned and lestrained of his liberty by ihe marahai of 
 the southern district of New York, under the couvictiou; 
 that such conviction was illegal, and that the illegillty con- 
 sisted in this: that the court had no juri -diction to puni h 
 him for the acts charged in the ind'Ctment ; that the act 
 under which the indictment was drawn was unconsti ulion- 
 a a 'd void ; and that the court exceeded its jurijdictioa in 
 conrimitting hitn until the fine was pa'd. lie therefore 
 proved f< r a writ of habeas corpus to be directed to the 
 marshal to bring him before tbe.tourt, and a writ of certio- 
 raii to be direcied to ihe clerk of the circuit court to send 
 up the record of his conviction, that this court might 
 irquire into the cau«e and legality of his imprisonmeat. 
 Accompanying the petition as exhibits were copies of tlio 
 indictment and oFthe record of conviction. The couit. in- 
 stead of ordering tltat the writs be i.^sucd at onc3, entered a 
 rule, the f ouncil of the peniioner con?entiTg thereto, that 
 Ciuse bf j-hown, on a day des'gaa'ed, why the writs should 
 not issue as prayed, a^d that a copy of the rule bs served 
 on the A^'orney General of the Unittd States, the rrarvluil 
 of the souihtm district of New York, and the cle.k of the 
 circuit court. The A'torneyGeneral, for himsflf and 
 others, an-w<red the rule by averring that the petition and 
 exhibits do not make out a case in which th's court has 
 jar if diction to order the wri s to issue, and that the pei- 
 lioncr is in lawful custody by virtue of the procef dings and 
 fentcnr'e mcotioned in the exhibits, and tiie commilmeat 
 isiu^ d ih'jrcoa. 
 
 The po Tier vested in Congress "to rstabHih post cffi -es 
 and pcst-roids " has been practically construed, since ihc 
 foundation of the government, to author ze not merely the 
 desiiiaa ion of the routes over which the mail ehall bo carried, 
 and the oflQces where letters and other documents shall be 
 rtc^^ived to be distributed or forwarder, bat; the carriage of 
 the mail, and all measures necessary to secure its s^ife and 
 speedy trisnsit, ana the prompt delivery of it^ contents. The 
 validity of legislation prescribing what bhould be carried, 
 and its weight and form, and the charges to which it should 
 
18 THE COMSTOCK LAWS. 
 
 be subjected, haa never b'-eri q lestioced. What should be 
 mailable has varied at different times, chang ng ^vith the- 
 facilifj' of transportation over ?he po.-t-road?. At one time 
 only letters, r-ewspapers, mag-^ziaes, p^mpai?, :-<xd other 
 printed matter, not exceedicg eight ouLces in weight, -were 
 carried; afterwards books were added to the iia , and now 
 small packages (f merchandise, not exceeding a presciibed 
 weight, as well as books and priDted n.s-tfer of a'l kinds, 
 are transported in the mal Tlie 2)oiS' r posaessed by Congress 
 embraces the regidaiion of the tritlre pobial sysUm ff lite country. 
 The right to design,' te icliat shall be carried nectsnurily inwlv s 
 the right to detcrndne ichat thall be excluded. The difflvu'ty 
 altecdicg the subject ariiref, net from the waot of power in 
 Congress to prescribe regulations as to what shall coLSli^ute 
 mail matter, but from the iliecessiiy of enfoicir g them con 
 ristenlly wi;h rights reserved to the people, of far greater 
 imporiancc than the transportation of the mail. In their 
 eBfcrcement a distinction is to be made betwctn diffeiCLt 
 kinds of mail matter ; between what is intended to be kept 
 free from inspection, such ss letters scd sealed packages 
 subject to letter postage; and what is open io icspection, 
 such as newspaper?, magazines, pamphlets, and other prmted 
 matter, purposely left in a condition Io be cxanuDed. Lit- 
 ters and sealed packages of this kind in the mail are as 
 fully gjarded from examination and inspection, except as 
 to tlieir outward form and weight, as if they were retained 
 by the parties forwarding them in their own domici)?. The 
 conf^tituiioijal guaranty of the right of the people to be secure 
 in their papers against un; easoflfble searcLes and seizures 
 extends to their papers, tluis closf d ^ga-cst inspeclJon, 
 wherever they may be. Whilst in the mail Viey cm on^ybt 
 opened and eiarrdaed under like loarrant^ issved up n si^rdlar 
 0"th or ojjirniation^ particidarly dencribingVu tldi-g io ie . c zed, as 
 is required ichen paptrs ure suljtcted to tearch in one's oicn house- 
 hold. Ko law in Congiess can place in the hands of efficials 
 connected with tbe postal service any aiiihori'y to invade 
 the secrecy of letters and tuch sealed packages in the mnil ; 
 ard all regu'a' ions fdopled as to mail matter of this kind 
 must be in subordination to tho great priv-ciple embodied in 
 tfee f junh amendment of the Cone'itutiiu' 
 
 Nur can any regulations be enforced aganst the transpor- 
 tation of printed matter in the mail, which is open to exam- 
 
THE COMSTOCK LAWS. 49 
 
 inatioD, so as to interfere in any manner wiih the freedom 
 of the press. Liberty of circuiting is as essential to that 
 freedom as liberty of publishing; indted, without Ihe 
 circuktion the publication wonM bo of little vniue. If, 
 THEREFORE, 'printed maiUr be excluded from the mails, its 
 transportaiion in any other way cannot he forbidden by 
 Congress. 
 
 In 183G, the question as to the i)OweT of C">n:5resai to (X- 
 clude publications from the mail was discussed ia the Senate 
 and the prevailing opinion of ita members, as txprt^Sied ia 
 debate, was against the existence of the power. Presirient 
 Jackson, in his annual message of the previous year, hal 
 referred to the attempted circulition thrcugh the mail of 
 icflimmatory appeals, addressed to the passions of the slaves, 
 in prints, and in various publications, teDding to stimulate 
 them to insurrection, and suggested to Congress the pro- 
 priety of passing a la^y prohibiting, under severe pe lalties, 
 such circulation of "incendiary publicaUons " in the 
 Southern States. In the Senate, that partion of the message- 
 was referred to a select committee, of which Mr. Calbom 
 was chairman ; and he made an elaborate rcpoit on ths sub- 
 ject, in which he contended that it belonged to the sta^e^, 
 and not to Congress, to determine what is aed what is net 
 calculated to disturb their security, and th it to hold other- 
 wise woull be fatal to the states; for it Congress mii;ht 
 determiue what papers were incendiary, and as such pro- 
 hibit their circulation through the mail, it might also deter- 
 mine what were not incendiary and enforci their circula- 
 tion. Whilst, therefore, condemning in the strongest terms 
 the circulation of the publicalions, he insisted that Cougrts? 
 had not the power to p^ss a law prohibiting their transmis- 
 sion through the mail, on the ground that it would a^ridiie 
 the liberty of the press. " To understand," he said, " more 
 fully the extent of the control which the right of prohibuinq: 
 circulation through the mail would give to the government 
 over the press, it must be borne in mind that the po^er vf 
 Congress over the post-office and the mail is an exclusive 
 power. It must also be remembered that Congress, in the 
 exercise of this power, may decUre any road or navi^'able 
 •water to be a post-road ; and that, by the act of 1835, it is 
 provided ' that no st5ge, or other vehicle which regul?u]y 
 performs trips on a post-road, or on a road parallel to it. 
 
60 THE COMSTOCK LAWS. 
 
 sball carry letters.' The same provision extends to pacfeet?, 
 boats, or other vessels on navigable waters. L ke provision 
 mjy be ex ended lo newppipers and pimphletP, waich if it 
 be admiued that Compress has the righ*; to discrim nxie ia 
 reference lo tlieir character, what papers t-h-^.U or whit bhall 
 not hi t-aasmi ted by tbe mail, would subject the frer-dom 
 of the press, on all subJHCts, politlc:>l, mortl, and religion'^, 
 completely to its will and pleasure. It would, in fact, in 
 some respects, more effectually control the frcirdom of the 
 p ess 'ban any sediiion law, huwever severe its penalties." 
 Mr. Calhoun, at 'he same time, contended that wheu a state 
 had pronounced certain publications to be dangerous to its 
 peace, and proh.bited their circulition, it was the duty of 
 Congress to respect its Uws and co-operate ia their enforce- 
 ment ; and whilst, therefore, Congress could not prohibit 
 the transmission of the incendiary documents through the 
 mails, it could prevent their delivery by the po-^t masters 
 in the states where \h,eir circulation was forbidden. In 
 the discu-sion upDj the bill leporttd by him, similar views 
 against, the power of Congress were exprev^sed by other 
 senators, who did not concur in the opinion that the 
 delivery of papers could be prevented when their transmis- 
 sion wa3 permiited. 
 
 Great reliance is placed by the petitioner upon tkese views, 
 comingasihvy did, in many instances, from men alik'i'iistin- 
 guishfd a'^ jurists and statesmen. Bat d is eviiUni i'lat ih-y were 
 found d upon the aftsumpU'on that it was competent f,^r Conr/rtss 
 t) rroh.bit Vie triin>portit.on of nticspapers and pamphlets over 
 postal routes in a)>y other way than by mail; t-nd of c^urse 
 it would follow that if, with such a prohibition, tbe trans- 
 portation m the mail could also be forbidden, the circulation 
 of ibe documents woul J be destroyed and a fatal blow given 
 to the freedom of the press. Bat we do not think that Con- 
 gress possesses the power to prevent the transportalion in 
 o her -ways as mercbandise, of matter which it excludes 
 from the mails. To give efficiency to its regulations and pre- 
 vent r val postal systems it m^y perhaps proHM the carriage 
 by o\\ers for hire over postal routes <f ariicUs 'cchi-Ji legitimately 
 c^r..d.t'/te mail ihoiter iu ihc £e::se In which tnose terms were 
 Ubci Vvht^n ilie Ciusut'-iiiou was adopted — couiisiing of let- 
 teis, and of new<;papers and pamp^bts when AOt sent as 
 
THE COMSTOCK LAWa 51 
 
 merchandise — but further than this its power of prohibi'ioa 
 caano extend. 
 
 Wiiiist regulations excluding mat'erfrom the mail cannot 
 be enforced in a way which would lequire or permit hu ex- 
 amination into letters or sealed pukigessulj otto l.tter 
 pf)r.tige, without warrant i-sued upon oaih or i,tlinn tton, in 
 ihe s-arch for prohibited naatter, they m:y be euto cfd upon 
 competent evidence of tbeir violaiion obtained in oitier 
 wtiys, a^ from the parties receiving the letters or packcge*, or 
 from Hgents deposiiing them in the p>-t-((li"e, or o:h<r3 
 cogniz.nt of the facts. And as to objectionable printed mat- 
 ter, which is rpen to examination, iha re^ulaions may be 
 enforced in a similar way, by ihe imp(nitii)n cf ptLaliies for 
 their violation through the court-; and in some cases, by 
 the direct art'on of the rffi^ers cf the postal scrvce. In. 
 many instances those officers can act upon their own innpec'ion, 
 and from the nature of the case must act wuhout other 
 proof, as wliere the po-^tage is not prepaid, or where there 
 I* aa excess of weight over the amount prescribed, or wliere 
 the object is exposed and i-hows unmi-.takably that it is pro- 
 hibited, as in the cnse of an obscene picture or p'int. la 
 such cir.es, no difficulty avis s. and no principle ii vi dated in 
 excluding the pro/iibitd ariiclcs or rcfas ng to forward tlum. 
 Tne evidence respecting them ia seen by every ore and is in 
 its na'ure conclusive. 
 
 lu excluding v^inous article? from the mail the olject of 
 Congress has not been to interfere with the freedom of the 
 pres-j, or with any orher rights of the peop e, but lo ref'ise 
 i s facilities for the distribution of matter deemed injurious 
 to the public morals. Thus, by the act of Murch 3, 187«j, C n- 
 gress declared " that no obtcenc, lewd, or 1 iscivious b ok, 
 pimphlet, p cture, paper, print, or other publica:ion of an 
 indecent char c er, or any article or thing de?i^ned or in- 
 tended for the prevention of conceptioi or pr; curing of 
 ahortion, nor any ariicle or thing intCLded or adapted for 
 any i.idecent or immoral use or natiire, nor any wntien or 
 printed card, circular, book, pamphlet, advertisement, or 
 notice of any kind giving information, directly or indirectly, 
 where, or how, or of whom, or by ^^hat means either of the 
 things before mentioned may be obtained or made, nor any 
 leiter upon the envelope of which, cr postal card upon which 
 indecent or scurrilous epithets may te written or printed, shall 
 
52 THE COMSTOCK LAWi 
 
 be carried in lh*» mail, and any person who shall knowingly 
 deposit, or cause to be deposited, for roailing or delivery, 
 any of the hereinbefore mentioned arti les or things, . . . 
 shall be deemed guilty of a misdemeanor, and, on convic- 
 tion thereof, shall, for every offense, be fined not le^s than 
 one hundred dollars nor more than five thousand dollars, or 
 imprisonment at hard labor not less than one year nor more 
 than ten years, or both, in the discretion of the jadge " 
 
 All that Congress meant by this act was, that *-he mail 
 should not be used to transport suchcorruptmg publications 
 and article^:, a- d that any one who attemptod to use it for 
 thut purpose should be punished. The sam^ inhibition has 
 been extended to circulars concernicg lotteries, institutions 
 which are supposed to have a demoraliziag influence upon 
 the people. There is no qutstioa before us as to the evi- 
 dence upon which the coavictloa of t'ae p-Jtitioa-jr wis hid; 
 nor does it appear whether the envelope in which the pro- 
 hibited circular was deposited in the mail was sealsd or 
 left op^n for examicauon. The only question for our 
 determination relates to the constiluiionality of the act, 
 and of that we have no doubt. 
 
 Tlie commitment of the petitioner to the county jail until 
 his fine is paid was within the ddscretion of the court under 
 the statute. 
 
 As there is an exemplified copy of the record of the peti- 
 tioner's indictment and convirtloa accompanymg the peti- 
 tion, the merits of his case have been considered at his 
 request upon this application, and as we are of opinion that 
 his ioQprisonment is legal, no object would be subserved by 
 issuing the writs; they are, therefore, denied. 
 
 D. W. MiDDLETON, 
 
 c. s. c. u. s. 
 
ON THE COMSTOCK LAWSk 29 
 
 AS ABfSWER TO THE IXDEX CRITICISIIS. 
 
 BY T. B. •WAKEMAN. 
 
 The editor of T7ie Index has honored my speech at Faneuil 
 Hall again&t the Comstock Postal Laws with criticisms now 
 exiended to about eleven coluiiins. This reminds me that 
 **it nerer rains but it pours;" ajd if in all this quantity of 
 words some things seem to escape me, let it be charitably 
 remembered that I cannot reply to every sentence. But I 
 will be careful to meet the material points. This I will do 
 cheerful y, for these criticisms are the first and only public 
 objections that hav been presented to the positions taken ia 
 thfit speech O.herwise it has received a very general and 
 decided approval from those who seem to me most compe- 
 tent to judge. 
 
 Bat let no one euppose that those positions are par- 
 ticulaily mine. They be'.ong to the mass of the Liberals, 
 and, 1 believe, to the i lass of the people, of this coun- 
 try. They were embodied in the petition against the Com- 
 fetock Laws, signed by some 70,000 citizens. They were 
 approved by the (fficers aiid audience of the Ind gnation 
 Me- tini; before which the speech was delivered in Faneuil 
 HhII; they were deliberately approved and incorporated into 
 the ResoluiioDS of tbe great Couvention of L berals of every 
 shade of belief held at Watkins ; they hav been generally 
 approved by the Liberal press, and also by distinguished 
 Liberals in many speecbes and letters, and of which one 
 from Mr. James Parton was publifthed as a specimen in t(^ 
 last number of 27ie Index. 
 
 The editor also does the Liberals too much honor if he 
 represeuts the position as peculiar to them. It is simply 
 th>it of ihe Constitution and of the people at large, and only 
 as i^uch hav I presented it. 
 
 He aloo lays out tbe geography of the discussion in too 
 much of an individual mauner, as though it was a kind of 
 triingular contest between Messrs. Haywood and Tucker, 
 and myself, and bimself ; whereas the rell question is simply 
 "Whether we shall insist upon ihefree press and free post-office 
 which the Constitution provided for us, or not. 
 
 On this question, which is the only issue, the editor and 
 his personal friends stand against the mass of the Liberals, 
 
50 REPLY TO THE INDEiSt 
 
 as I hav indicated, and will stand against the people of the 
 country wben their attention can be called to the issue. 
 
 Msrssrs. lley wood and Tucker do not differ trooi the L'b- 
 erals of the country on this, the only issue before us. What 
 the slates may or ought to do about ( bscenity are q'lesiions 
 as to the disc: eionary exercise of &tate powers. N) ques- 
 tion of that kind is now before the League or the L btrals of 
 the country; and until the Liberals can get Mr. lley wood 
 out of j iii 1 do not propose to discuss with him how far or 
 in wbac waj'^ the states should exercise a power which all 
 must admit they possess. 1 do not believe in hiiting a man 
 who is down— not even Mr. Heywood. He is not to be h^ld 
 responsible for his opinions until he is a free man. As long 
 as he is in prison, his extreme views as to the exerci-e of 
 state powers are not to be wondered at, and are certainly 
 excusable. 
 
 The question is, Shall the Comstork Postal Laws be re- 
 pealed? The position of Congress and the pc p'e for one 
 hundred years, i. e , until the Comstock Postal Laws were 
 pissed, was stated and defended in the speech referred to. 
 It was Substantially as follows: 
 
 "(1) That the Constitution of the Unitfd States confers 
 upon Congress no power whatever to legis'ate upon thii 
 subject; that its atiempts so to do in the Coms<tock postal 
 laws arti beyood even any 'implied powers,' and are plain 
 uaurna'ions, which break down the who'e Con^utution as 
 the bulwark of liberty, aod, in the words of Hon. El zjr 
 Wright, leave it 'not worth two b'ass buttons;' ihat those 
 laws are in fcub4ance a decoy and espionage system over the 
 povt-( ttice; that tht-y have been the source of g^eat wrongs 
 and inj isticf ; and iha^. they cannot be amended so as t ) be 
 tafe aud cousrituiional, and should th'^refore be repealed. 
 
 " (2) That the power to sup.iress ob^cenify and indecency, 
 tog t her with all other crimes or ott'>^n<«fs, is one of the gen- 
 eral powers reserved in the United S ates Constitution to 
 the people and the ^ta^^es, and that it should be exercised by 
 the fctaie l«gife.latures and courts with the greatest caution, 
 only in 'unequivocal acd well defined c«ses,' and plainly 
 whliin the constitutions of the several states." 
 
 The speech in question is a defence of these positions from 
 a constituti nal, piolitical, and moral point of view, as 
 against a dictum of the United States Supreme Court. As 
 this speech has never appeared in The Index, 1 must remind 
 all coucerned that no adequate understanding of Ihis discus- 
 
ON THE COiTSTOCK LAWS. Si 
 
 sion can now be had without reading it, and the opinion of 
 the United States Supreme Court annexed to it. I will 
 cheerfully send both to any address, so as to do what I can 
 to aid in ihe proper understandiog of this subject. 1 ofier 
 to do this because I hav not time to answer the lengthy 
 criticisms in detail, and because, after considering tbem 
 carelully, it seems as though a careful reading of the speech 
 itself would be the only answer to most of them really 
 needed. 
 
 I say this not with any feeling of disrespect, but from the 
 belief that if the editor had delayed forming an opinion 
 until he "had thought out the subject in all its bearing-,*' 
 and bad been free from unfortuna-e circumstances acd con- 
 troversies that, I fear, hav uucoufeciou-ly inflatnced his 
 judgment, he would hav stood bravely with us. 
 
 This view is confirmed by the naiure of bis objections, 
 which, let me say once more, eeem to inv. Ive do real 
 diflerence of principle, but only (1) confusions and {2) mis- 
 apprehenfsions, which he unfortunately seems to desire to 
 magoify, as if in self-dtfcnse. 
 
 The discussion, so far as it has gone, has certainly devel- 
 oped important agreements, which I did not anticipttte from 
 the dtfiant mjiuner in which the editor opened it. L"t me 
 call attention to these agreements, as the common ground 
 between us from which we may hope to conquer the remain- 
 ing d fF^rences. 
 
 I. The editor is entirely with us on the most important 
 part of the subject — one that seems to me to involve in sub- 
 stance the who'e. Ue agrees ihnt the pr^st-nt Comstock 
 Laws are unconstitutional; ihnt th* y abridge the freedom of 
 the press; and, thertfjre, that the Sapreme Court is all 
 wrong on this subject, lie says: 
 
 "We entirely agree with Mr. Wakeman that the Comstcck 
 laws, as they hav been adnduidtred — nay, more, ai they cun 
 scarctly IhiI to be administeied, so long as they retMo tbeir 
 p'-eseot dangerous vagueness and inOefiniif n^^fjj — fingrantly 
 'Diota'e I be fieedom oi the press, and are certniniy lur iijai 
 rea-'ii xHiCoi.t^iituiiojial. llis ar^um^Lt is ptv^ertul and 
 un,a?uice7'ible, ^o lai as it lelaies to liieie laws in iLtir pres- 
 ent loim." 
 
 Tlic bufct thing to do with unconstitutional laws is to re- 
 peal them ; that is the general impression. But the editor 
 
32 REPLY TO THE INDEX ' 
 
 wishes to reform them. But he ia certainly ii^^der a misap- 
 prehension in supposing that these uacoDSUiutiniftl laws can 
 be made conRiitutional by being m«de more dtfiaite. Tiij»t 
 is a great difficulty, certhiniy, bui not the gre^te'^t. 
 
 The Iroab e is, ua the aj> ument proves in ihe ^pefch 
 ■whiLh he Says is ucanswtrable, that no p« stal laws on this 
 subject can be enforced at all wiihout abridging the freedom 
 of Ihe press, because they involve espionage and decoy as 
 the only possible means ot their enforcement. 
 
 The poison is the very pubetance of them. Judge Field, 
 in the Opinion of the Cjurt, points out these iiiquis^iions as 
 the only means by which the^e laws cm be enforced, and 
 thty arc the only means that hav been or can be practically 
 used. Toe Judge expres-ly says that the pirty 'receiving 
 the prohibittd matter may complain, " or " the officers of the 
 postal service can act upon their own in?pectiou " "in ex- 
 cluding the prohibited articles or lefusing to forward them," 
 and such official may also mbke the complaint, of course. 
 
 Now, the " unsnowerttble " argument goes to show that 
 no p >wer of this kind was ever dreamed of under th-- Ctm- 
 stitution, and that its exercise is a direct violation of the 
 freedom of the pres?, and of the freedom (f property from 
 seizure granted by the Constitution, and that it is a means 
 of irqiisition " uttfiiy inconsistent wiih the geiiius of free 
 instituliOB.'^^," as the League resolved at Philadelphia. 
 
 1 hav repeatedly aud respectfully rrqiested the editor to 
 dra't a statute that shall be free from " v«gueness and ia- 
 dtfioiteness" and which shall hav any practical vtilue 
 "wiihout involving ihes^e very objections which h«v mmle 
 my argument "unanswerable." The gener.il talk about 
 " rtfoim " is of no possible use in such cases as this; if the 
 thing can be done, he is under the deepest obl'gau^u to 
 shoMv how V. can be done. Un*il he give*} us a leformed 
 Comr-t; ck Liw he is cleaily guilty, not only of "vagueness 
 and indetiniteness ' himseP, but is guilty of making a schism 
 in the Liberal ranks without any sounj, clear, or sure 
 ground to go upon. Vague declarati »ns about " rtform " 
 end '• purity " and " pnuciplts" am( unt to notliin:^. L t 
 us see the uncoastiiulion d law " ret. rmed " in o a c.j:i- 
 Biilutionii one, or let us hav silence on this whole sui jj.t. 
 
 The editor intimates that the elements needed arc ctr- 
 taiuty of definition, and inquiry into the " intention " of the 
 
ON THE COMSTOCK LAWS. 83 
 
 sender. But "legal definitions of any crime " must be by 
 afs, vrordF, or til' g« ; ard '* obscenity " is neither, unless 
 .'dl ( i tie ac»f^, woriis, and tbiDg^ are dearribtd. Let the 
 editor fj V tlipm ! Aod, ai^fiin, when it comes to "inten- 
 tion," what legal process can ever reach and determine thit? 
 O :ly one trihuDii has sat up >n the ialenlions of men, and 
 taai. was the Ii q .isition itself ! 
 
 Lawyers of the greatest .'ki-1 bav given up the framing of 
 such laws in de pair. I hav tried far enough to appreciate 
 ttit^ir (i Hi ulty, A=i an introduction to Jhistisk let me ask the 
 editor to rt prin'. a remarkable letter of the great American 
 jir.st. and perhaps our grea'evt codifiir. E lioard Lidingsiori^ 
 lound in hss Life by C. II. Ilaveoa. p. 2S9 (/Vopleton. 1864), 
 and wlii^h was reprinted in the Bostoii Traveller of July 15oh 
 and TJie Word (if August la t. But Livingston's d.fliculty, 
 insnp'.rable hs he found it, was with the df^finitiocs only; he 
 did not propose to dis^cover and pani>h intentions too. By 
 the liiTi!- the editor h>i8 di.spoicd of both d ffi ulties I bel'eve 
 L*' will li' d thit the only practio.l reform of the Comstotk 
 law is I he S lakrperi-tn ciy, '* Oh, reform it altogether 1" 
 
 Another imp* rant agneraen' to t)e obs( rved is that by the 
 t;da.i si(ui > b ve quoted Jhe editor has plired himself with 
 the le-tof the Libtrals in direct opposition to the U. S. Sa- 
 P'-f me C<>u!t on this sui:j ct. It is merely inconsistent 
 crue ty, Ibeiefore, for the mitor to refer to the pre.*ump*ioa ' 
 ot my •'luiividuil op ninn " as agiinst the Supreme Court. 
 Ta( ugh I am "meiely an cttorney," I hav as good a riirht 
 to d ssent from ttie mi;ral and poliiical and constitutional 
 op ni.)ns of that cou't as the editor. Bat his position will 
 he'p all Liberals toteeihe absolute necessiiy of such dis- 
 Hn ; au.t thit the grounds of tbe spetch in that regard 
 f-h( uld be lenlly and practical y admif ted by this positioa of 
 tlic «-(litor hims-elf is a great siep of progress. 
 
 II. Auoilu r agreement which the discussion has happily 
 t'rou. ht out. is the abandonment of the second i lank of the 
 Ctt'i PiH.form upon wtiich the editor r(q lired all Liberals to 
 siiini ».t Syracu-e or suffer the ternble coDSfq'ierce of hisin- 
 d uuai;t ttban ioiinent. In m\ former letter to The Index \h.\B 
 \) ark was qiov.d by carefudy (not carelessly, as the editor 
 fcuppostd) omit'ing the words in it relating to the state, so 
 that its statement on the National or Postal Law question 
 could be seen at a glance; thus stated it afflrms: "The right 
 
34 EEPLY TO THE INDEX 
 
 and duty of Congress to pass, and the right and duty of the 
 NitioDal Courts to enforce, laws to suppress the circulation 
 of obscene literature, indudir.g tbe exclusion of such litera- 
 ture from the United Slates m^ils " 
 
 It will be seen at once that this all-important plank, 
 upon which the editor insisted we must all stand or go un- 
 der, goes to the lull extent cl asstrtirg the unVmited jaris- 
 dict on of the United States over the whole subject of 
 suppressing the circulation of obscene literature, and that 
 only as an item of that general jurisdiction he included the 
 ex> lasion of .^uch literature from the United States mails. 
 
 That this was the editor's former vi^w is clearly evi- 
 dent from his editorial of September 26th, in which he 
 argues at length fo»r what is summed up in these words: 
 
 " The powers of Congress are nothiog but tbe powers of 
 the people ii'self as a whole; for Congress is only a repre- 
 sentative body deriving all its powers from the people it 
 represents. To limit its powers, therefore, is to limit those 
 of the people." 
 
 Again, in his editorial of October 3d, he derives this gen- 
 eral power and jurisdiction of the National Government 
 from the nature and enormity of the " crime" ifself. He 
 says tbere is a moral justification for treating this business as 
 "a crime, not only by state but also by national legislation." 
 "It is in strict accordance with the spirit af the U. S Con- 
 stitution to \n\Q\T^rei\\j bl^ gWmg jurisdiction over all crimes 
 whirh, from the nature of the case, cannot be b^ougb^ under 
 the jurisdiction of the separate states. The crime of cown.- 
 ierfeiting is of this nature since the power of coining money 
 is conierred upon Congress alone; and the crime of mailing 
 obscene literature is of this naiwre, since Congress alone has 
 or can hav the power to le-iulate the Post-offlce system." 
 
 Here we hav the repetition of the general jirisdiction 
 doctrine of the Caid with a vengeance! Because any act is 
 very bad it is worthy to be " a crime," and if tbe states can- 
 not re>ich it conveniemly, then the Constitution authorizes 
 Congress to create it into " a crime " and punish ii ! Tuus 
 C jngress can acquire unlimited criminal jurisdiction from 
 its judgment of the criminality of acts and tbe difiiculty of 
 the states in punishing them! Can this be seriously pre- 
 tended? Is it possible that the editor wrote what is aboye 
 
ON THE COMSTOCK LAW3. 85 
 
 quoted after he had "thought out the subject in all its bear- 
 
 iugs?" 
 
 It seems not, for by his own admission in the next edito- 
 lial in the same paper, in reply tj my letter, which pointed 
 oat the absurdity of this general jurisdiction plank, he says 
 of ♦.hat Card: 
 
 ' It was not intended to force the jurisdicfioii of the 
 whole subject itpon the United Stiies Government, vor do ice 
 think the vrord ng at all suggests any such eiirav ig mt posit on. 
 Bug we tbke this opportunity to stite that tlic piattorm in 
 \he 'Card 'is not proposed fur adoption in furr^ by the 
 ^eague; it simply states the principles of the signers, which 
 •will be fully ' approved ' if the League in any manner adopts 
 uncquiv( Ciliy, by a simple m j )rity vote, the policy of 
 seeking to * reform ' and not to repeal the Comstock laws.'' 
 
 Now, the foregoing is a frank and plain withdrawal of the 
 very plank upon which the "reform" rested in the Card We 
 "weje expressly told that the right and duty to exclude was 
 "included'' in the right and duty of Congress to p^ss, and 
 of the nalioabl courts to enforce, laws to tuppress the circa- 
 tation of obscene literature, Now, if this general jurisdic- 
 tion claim is abandoned as an "txtravrtgant" and ridiculous 
 blunder, what becomes of the right of "exclusion " which 
 was "included" in it? Why, of course^ that falls with the 
 right am; duty in which it was included. Tne part giies 
 down with the whole. What ground is left, then, upon which 
 the editor demands that we must still vote for "reform?" 
 He asks us to vote for reform upon, and as necessarily in- 
 cluded in, a "great principle" which he abandons hs soon 
 as its "ex ravagant" nature is pointed out to him, and yet he 
 insists that his " principles " will be approved if we will 
 only vote for "reform," although the very ground he rested 
 it upon has dropped fcom under it. 
 
 Bat after the bottom is gone, why are we still asked to stake 
 our all upon a " reform " that all experience has proved to 
 be impossible? Must we, simply as an act of faith in him, 
 take it like a pig in a poke?- and that after finding that 
 the very plank he provides for the reform to rest upaa is so 
 *• extravagant" that it breaks with the first footstep. Wo 
 are tempted to ask again, Has this editor "thought out the 
 subject in all its bearings? " 
 
 By the admission above made, if he really means and 
 
86 REPLY TO THE INDEX 
 
 understands it, he comes back to the old and safe grounds of 
 the speech, which would end all d ff^rences at nee, t ) wi : 
 **The power possessed by Congress embrace:! the regulation 
 of the entire postal system of the couurry ' for postal pur- 
 poses; but not for moral, religious, political, or any uUerior 
 purposes. 
 
 III. But no sooner is the admission made than he goes to 
 "work to invalidate it; and that brinj^s us lo a third point. 
 He tries to revive the notion that the power to create and to 
 legislate Against "the crime of mailing obscene literature'' is 
 ** an incidental power" necessarily implied in the power 
 **to establish post-( ffices and post-roads." 
 
 In the speech criticised this matter was so thoroughly dis- 
 posed of that no reply is needed to those who will read and 
 heed what is there said. It was there shown, iu the words 
 of Henry Clay, that the mere mailing of anything is not and 
 cannot be made a crime, and can never be lawfully so legis- 
 lated by Congress under the Conftitution; th t the p;>st- 
 ofiice can never be made a source of criminal jurisdiciion 
 or means of detection for the purpose of puaushiog even 
 the crimes which are named in the Constitution as 
 within the jurisdiciion of Congress, to say nothing 
 of making new crimes which it has no right what- 
 ever to create. It was sho^vn that any attempt to punish 
 crimes by espionage or decoy liws could only detract from 
 the use, income, and " conveniency " of the pos^tal service; 
 that, instead of being "appropriate to" postal ends, they 
 were detrimental, expensive, and useless as such, and cou'd 
 hav no use or justification, unless attempts to use the post- 
 office for supposed moral purposes, i. e , tor "ulterior pur- 
 poses," could be justified; that until a part couid+e greater 
 than the whole, no jastificition for such purpose was 
 possible under the postal grant of the Constitution. 
 
 The editor dissents, but makes no serious attack upon 
 these positions — as, indeed, who can? They Maud as they 
 did ia 1836 when Din'el VVebster said in the S-nate that he 
 was "shocked" at the claim to the contiaTy, anil that the 
 prohibition of the mailirg of anyihng on account of its 
 meaning was "express y unconstitutiona!," and the Smate 
 agreed with him. The editor, however, refers to two items, 
 realiy t.iken from the speech, which seem to him inconsisieat 
 with this position. One is counterfeiting, and the other 
 
OIT THE COMSTOCK LAWa 87 
 
 postal cards. These seem to me amusiDg items to be brought 
 forward by one who has "thought out the subject in all iti 
 bearings." 
 
 Counterfeiting is referred to in the speech as one of 
 the crimes expressly placed by name within the juris- 
 diction of Congress (Art. viii, § 0, of the Consti'.uiion). 
 M'^reover, by § 10 of the same Anicle all of the other crimts 
 which the United S.ates are allovt^ed to punish at all are 
 detlired to be "piracies and felonies committed on the high 
 seas, and offenses against the laic of nations.'^ All otlitr 
 crimes are expressly reserved to the states, except treason, 
 which is specially provided for and defined in another Arti- 
 cle, so that Congress could not, by definition or pretended 
 incidental powers, get further criminal jurisdiction of any 
 kind. 
 
 Now, the editor argues that counterfeiting is really an 
 incidental power under the express power " to coin money," 
 etc., and that the newly made "crime" of mailing obscene 
 litera ure is similarly an incidental power under the fxpress 
 power "to establish post-offices and post roads." He there- 
 fore declares them both "to be of the same nature," and 
 concludes that if one is constitutional the other must be. 
 
 The answer is that the Constitution has expressly pro- 
 Tided that Congress shall punish counterfeiting, and h is no 
 word whatever that looks towards making a "crime" of mail- 
 ing anything, or punishing obscenity in any way. It is true 
 that to punish counterfeiting might be considered an inci- 
 dental power under the grant "to coin money," etc.; but 
 the editor will find that it was just for that reason that the 
 authors of the Constitution dragged it out of any such pos- 
 sibility and put it in expressed words. They expressly, as the 
 debates show, used every precaution to prevent tbe infer- 
 ence of criminal jurisdiction from incidental powers, and 
 thus in this only case where it might hav been implied they 
 even inserted a separate clause rather than hav it left to infer- 
 ence. Now the well-known rule of construction is that the 
 expiessed inclusion of one instance in a grant is the exclu- 
 sion of all similar instances of power. The expression of 
 this only instance of incidental criminal power excludes all 
 other instances and means that they are not to be implied. 
 It shows that the authors of the Federalist were entirely 
 right in saying that this postal power " must, in every view, 
 
88 REPLY TO THE I^^DEX 
 
 be a harmleas power." By •*harmles9," the contemporarj 
 di-cu^Mi>ns show they meant free f.^om usurpation anc. 
 crlmiaal jurisd'cti m. The fditor wculd make mail carrying 
 the unliiiiited sourc? of both! 
 
 (2) The next point the editor discovers 13 that the speech 
 isiacoasifetent in regard to postal Cirds ; but he is mibtaket 
 a^iraia. 
 
 The ppeech says: " With the meaning of the docurjer.ts 
 INCLOSED, the Post Ofilce has nothing to do; and if they 
 h-.v not, Congress has no power to punish for sendiijg 
 tbem.*' 
 
 Agiin it says: " It's repeal \i e , Ihe repeal of the Cora- 
 stoclc law of 1873], is juslly caLed for upon both grounds in 
 the petition reitrred to," that is, on the ground of is un- 
 constitutionality and its impolicy, or wickedness. But in 
 "thinking out the subject in all of its bearings," each 
 cUuse of the Comstock law was considered, and the clause 
 relative to postal cards was disposed of in t-his way in the 
 speech : 
 
 •'A post-rflSce regulation, that all matfer should be in- 
 CLOSKD, and that postal carda should contain nothing that 
 could be I ffensive to thofe to whom ihey are rent, or to the 
 public, i.- all that is necessary. This matter of the posla. 
 cards is ert rely in the power of the department as a yECCs- 
 BARY P( STAL RFGULATioN." " It is cvidemly put in tl)e law 
 in q-nstiou only \o giv it the color of necessity. Ir it is 
 though*; best to letain the form of the law, it should be 
 materially modified so as to be within the pos'ial powers 
 and purposes only." 
 
 Now the editor imagines that there is great inconsistency 
 in these quotations, simply because he overlooks the all 
 important d fference, expressly pointed out, that in the firs; 
 case inclosed matter only is treated of, which differs eniuels 
 from postal cards in which publicity is compelled by law, 
 and for postal reasons; in the latter case the same reasons 
 compel that they shoulJ be inoffer site to the receiver and 
 not exci'ing to the public, otherwise 1»bar part of the postal 
 service could not be miintuined at all, much less wotked 
 conveniently. As it is, we are told that this enforced pub/- 
 licity is the great objection to their general use and to their 
 Bafe and punctual delivery. It is said and believed that 
 often the re^l excuse for th<;ir tardy delivery or loss is that 
 
ON THE COMSTOCK LAWS. 80 
 
 the postal employees and tbeir friends hav not Had time to 
 decipher them. The postal reasons for reducing this disad- 
 vantage of the po' tal cad se»vice to a ci'Diaium are too 
 apparent and pnctical for doubt, and such reasons hav 
 dictiited the re?trictiocs wherever this viw system Las been 
 adopted as the frt^t and ntcessary conilition of it-s exi>»ence. 
 
 Agiin, th-it this service U a new postal provisioi, not 
 inttndci'd under the Uonstiiuiion, may leave ii uoder the 
 discretion of Congres" to provide how it shall be used is a 
 condition of granting it at all, as in the case of the postal- 
 oarrying of dry-goods and parcels of merchandise. But 
 letter?, p-^pers, p imphlets, and sealed packets were, and are 
 mail malter under the Constitution, which Congress cannot 
 interfere with. 
 
 There i^ no inconsistency in the speech, then, in fU2:gest- 
 ing that ihese regrulations sh(-uld be hose of the Depart raent 
 only, and that Ihey should be limited to postal purposes, 
 acd to ordinary postal fines in case of complaint, thus re- 
 pealing the cumbersome penal laws, penalties, and proceed- 
 ings r.'h ch are not ridiculous on this trivial subject only 
 because they are terrible. 
 
 But notice the further fact that even this p'^stal inter- 
 ference is allowable OEly when enforced publ city requires 
 it. It therefore excludes the concision that it cju be 
 rightfully fallowed as \o inc'osed matter where there is no 
 5uch reason for it. Where the reason ceases, the law 
 ccises; and the inclusion of it in the one case, according to 
 the ru!'3 above cited, necessarily excludes it in the other. 
 S> far from there being an inconsistency, the postal-card 
 regulations, like the counterfeiting illustration, lead to ex- 
 ac ly the opposite conclusion the editor supposed, and 
 sustain the speech. Thus, when a " subject is thought out 
 in all its bearings," tru'h ii ever confirmed. 
 
 The above three points dispose of the constitutional and 
 most important aspects of the subject; and as to them it is 
 clear that the editor has admitted or confirmed the concu- 
 tious of the speech. llis *'retortr." of the Comj'ioek 
 post al laws will, therefore, hav no legal basis to rest upon, 
 3ven if he could make them safe to liberty, and practical, 
 which he cannot. 
 
 IV. Here we might rest the discussion, but for some grave 
 
40 REPLY TO THE INDEX 
 
 misappreTiensions he is under as to tlie bearing and impor* 
 tance of the questions involved. 
 
 The fir^t we will no'ire i= a fatal misopprehension as to the 
 lecal and practical importance to Kherty of preserving the 
 constitutional provisions, clearly dt fining and limiting the 
 Federal jurisdiction in crim nal matters. It really seems 
 that the editor has forgotten all about the Constitution and 
 the wisdom and statesmanship that formed it. How else could 
 he write in this w^ay ? 
 
 " So far as freedom of speech and of the press is concerned, 
 he [Wakemau] must either deny the right of the states, or 
 else concede the right of Congress, to suppress literature that 
 is really obscene. Freedom is violated by any unjust re- 
 strictions, and it makes not a pin's difference by what author- 
 ity the restrictions are imposed. The protest of principle 
 must lie against the restrictions themselves. Mr. Wake- 
 man de-troys his own case by conceding the jus!ice of the 
 restrictions when imposed by state authority, and yet in- 
 veighing agninst them as tyranny when imposed hy Congres- 
 sional authority. In consequence of this radical and fatal 
 selfcoDtradiction, the view he presents of the whole subject 
 is merely that of the attorney ; he has not treated it either 
 as a Philosopher or Statesman." 
 
 Aealn hear him : 
 
 "The fact is that Mr. Wakeman has not thoroughly 
 thought out his subject in all its bearings ; he has treated it 
 in too narrow and technical a manner. The powers of Con- 
 gress are nothiijg but of the people itself as a whole ; for 
 Congress is only a representative body, deriving all its pow- 
 ers from the people it represents. To limit its powers there- 
 fore, is to limit those of the people," etc., etc. 
 
 It seems to me incredible that a President of the Liberal 
 League can write in this way. Talk of statesmanship ! when 
 the great labors of all the statesmen we hav ever had, hav 
 been t ) prevent the establishment of a Federal tyranny. The 
 safest way to be a Philosopher and State-man is to follow in 
 their footsteps. In every convention and meeting that 
 passed upon the Cons'itution in its form ition ; in every 
 administration that has shed g«ory on the Republic since 
 then, the point was and has been to defend the states and 
 people from the tyranny and usurpation of the General Gov- 
 ernment, backed when possible,by the Supreme Court. I 
 
 I 
 
ON THE COMSTOCK LAWSw 41 
 
 pray th6 reader to continue the line of argument of the 
 speech into the works and records of those who adopted the 
 OoDslituiion, and I will gladly leave the question of 
 " statesmanship " to them The very theory of our Govern- 
 ment, as well as the traditions of liberty, are in darger of 
 being lost when our Liberal teachers write in the mingled 
 ignorance and indifTerence above quoted. 
 
 As Patrick Henry pointed out usurped power is " tyranny,'* 
 and is irresponsible and unlimited. If Congress can create 
 and punish crimes without regard to the Constitution, it is 
 the end of all popular liberty. Ttie only protection the 
 Liberal party and Freethought can hav against the whim of 
 a majority is gone. All that, was said in the speech about 
 the necessity of insisting upon the true position of the 
 Supreme Court as simply a legal tribunal, and not an arbiter 
 of morals, religion, or liberty, is the voice of statesmen, and 
 derives strange force when it is found that the President of 
 the Liberal League is ready to surrender *' the Bill of 
 R(gh!s," which is the only possible protection of the free, 
 thinkmg minority. Suppose that Jefferson, Jackson, or 
 Lincoln had done so, where would we hav been ? It is 
 clearly the lirst duty of a Liberal to stand by the Constitution 
 and its Bill of Rights as the fountain of all our liberdes. 
 When that is frittered away by giving Congress the power 
 to create and punish crimes, the temporary p^rty m 'jonty 
 is simply an irresponsible tyrant. It will wield a vast 
 judicial and criminal system foreign to the people, and before 
 it the individual will be as helpless as before a Ras?iaa Czir. 
 
 The great purpose of the Constitution was to "protect lib. 
 erty"by keeping the individual before the legislature, judge, 
 and jury of his state and vicinage, and under laws that he 
 could hav some influence in making, executing, or chang- 
 ing. These are the very conditions of liberty, and the Fed- 
 eral Government can only protect, them; it cinuot supply or 
 replace them. 
 
 These very Comstock laws are a practical illustration of 
 this vit^l d stinctton. All of th-; oa^r.'g>3 h iv been under 
 the United States laws aud by Fcdtra ja iges uad ollicers. 
 Under the state lawe, even in New York, unconstitutional 
 as I think they are there, no great wrong has as yet been 
 consummated, and there is less danger now than ever, for 
 
42 REPLY TO THE INDEX 
 
 the state officers and grand juries are recovering from their 
 ob<>cen ty panic. 
 
 I am uoL DOW called upon to deiermiae what, re^itrictions 
 the stae shou'd impt S3 lo suopress ohscen'y. I simp y s^y 
 that tho?e which were in force be ore the Ucifed iS atea 
 ui-urped this jurisdiction were in fact found to be si llicient. 
 That the evil was practically removed under ihem before 
 these postal laws were ptssed, and to those state laws, or to 
 others which the people msy hav a rational knowledge and 
 control of, I propose lo return. 1 leave the matter to ihem. 
 The editor has not shown how otherwise the Constitution 
 and our liberties can be preserved, 
 
 V. The editor is under similar misctppreJiens'on in resjard to 
 the position of Liberals on the subj-^ct of obsc ^nity. B c iuse 
 they do not deem it necessary to throw overboard the Cjn- 
 stitution and all their liberties to get it punished, he repre- 
 seiiU them as in favor of i^ and so has been the cause and 
 source of unlimited misrepresentntion, if not of slander. He 
 says, for instance, in i'^lics: ''Freedom of Vie presi covers 
 and includes the legal r'gJd typuLsh, circulate, and mail real 
 obscenity ! This," he ?ays, "'is exactly whdt I\Ir. VVt>k». man's 
 argument means so far as the mails are concern* d" 
 
 Again, when 1 tried to thow that the " pncciples " under- 
 lying the discussion were ommon to us both — viz , that both 
 "were in favor of liberty and opposed to obiceniiy," and 
 that the real object was to diecaver the l»ue, lawful, and 
 practical way to secure the first and ro avoid or repress the 
 other — he will hav none of it. He replies indignantly: 
 
 "He [Mr. Wakeman] is greatly mist^k-n in imigininac that 
 there is 'no material differences as to " principles." ' ile de- 
 clares that * all are in favor of liberty and opposed to obscen- 
 ity.' It is true that all Liberals are in favor of liber'y, bat 
 it is not true ihnt all Liberals are opp )sed to obscenity. C in 
 a man be said lo be opposed to murder who dernx'^'ds ihe 
 repeal of all or any of the laws which puni-h i' ? We cer- 
 tainly think not. The trouble with ' repeal ' is thai i'- would 
 abrogate some or all of the laws which punish the crime of 
 circulating obscenity, and \hereby, nomat^Br what Xhttiaten- 
 Hon, does in/act protect and foster that cr me. li there is 
 any real answer to this, let us by all means hav it." 
 
 Certainly. You shall hav it; but it seems strange that 
 any answer should be needed. Liberal people, and all sen- 
 
ON THE COMSTOCK LAWa 43 
 
 sible people, nve not in favor of crimes because they want 
 them cli^cove^eJ and puaishtd coariiiuiionally, by the 
 proptr auhori ies provided by la^v lor that purpose, and 
 by methods that will not work f dr greater harm to society 
 than the injary of the crimes ibemseives. There is 
 nothing so dangerous as a panic. The editor seems not 
 to hav recovered from ihe ob?cenity panic froai which 
 the whole country was suff ring as iho re-ult, of a few sea- 
 saiionul ijew.-paper articles and tome real cause in 1872, and 
 which iia^e us (Jom>tOLk aiad his laws af.er tae real evil 
 had been removed by the 6ta e laws and public opinion, as 
 1 btLfcve wi 1 always be the case. 
 
 The editor condemns us upon a very amusing "principle." 
 If, he aigue?, a Ihing is very wrong, then it is a crime, and 
 then it has no rights anywhere, or when, or how; and aoy- 
 b )dy msy puoisU it in any way, Uwful or not; and if any 
 one does not do so or favor doing s<', ihen he ackooivledgjs 
 thit the crime has *' legil rights," irid he favors aad fosters 
 it whether he intends to or not. 
 
 This feels to me Lke the logic of Judge Field's opinion, 
 and 1 fear the editor h^s ab orb-d it from tbal soarce, L t 
 us try it on. Lib Is are very wicktd and v.llaiu »uj, and are 
 generally circulated through tje mil-, A'l editor ofieu on 
 the mere word of a private correfpondeot abases his tre- 
 mendouj power to cbarge evil hCL?, in;enlioa«, and even 
 crimes thvit iujare and often practically ruin and murder 
 his victims. 1 believe such off'-nses are very wrong— or^ 
 crimes that make obcenity itself appear white, anj so the 
 laws of all civiLzad countries declare. Bit shall we ask 
 Crgress, which has nohing to do wi[h it under the Con- 
 slituiion, to go to legislating on the subj^^ct and to declare 
 the mailing of a libel a crime, punish ib:e with death, in the 
 United Sates courts ; and to be discovered by espionage of 
 mail matter, and induced by decoy ? Or shall we resort to 
 lynch and mob law ? Cerfainly not. We will hav the states 
 make reasonable and sensible laws on tiie subj ?ct, and will 
 try to have those laws lea^onably and effective y enforced 
 by the proper courts and jaii*>s of the vicinage. Sj we di-al 
 with for<^ery, treason, swindling, and many othtr crimes in 
 the commission of which the mails are constantly ustd. 
 Yet because we punish these crimes only through the states, 
 do we favor or foster them? 
 
44 REPLY TO THE INDEX 
 
 So as to murder, to which the editor refers. Many 
 excellent persons believe that society has advaaced so 
 far that the death penalty for it does more harm thaa 
 good, t-.nd they a k its abohtion; ba*, are they therefore 
 ia favor of murder ? Not long ago every lelony was 
 punished with death. The scaffolds were constantly hung 
 with victims or red with blood. Civilizatioa hiS been 
 measured by the abolition of these penalties, and cherishes 
 the memory of those who labored for their abolition. Nov? 
 are we to be told that they did it all because they wished to 
 favor and foster the crimes ? or tbat they did so in fact ? 
 
 When tbe editor recovers from his panic he will see the 
 absurdity of all this, and will regret that he said that "all 
 Liberals are not opposed to obscenity." Such charges 
 should not be made upon mere inferences, for they are mis- 
 understood. The editor began this discusaioa by saying 
 that " we dj not imagine that; Mr. Tucker [Mr. Hey wood's 
 champion] is any more in favor of obscenity than anybody 
 else." Certainly after that certificate he ought to give the 
 rest of the Liberals a clean bill of health, even thoagh, in 
 the words of Mr. Parton, they do go for "immediate and 
 unconditional repeal " of the Comstock Postal laws, "be- 
 cause they are unconstitutional and wrong in every way, 
 and pernicious in many ways." 
 
 Wnen the euMor preaches on the enormity of obscenity, 
 as hi does so eloquently — I will not say that he does it 
 "merely " as an ex-parson — I listen gratefully and reply only 
 from the *' amen corner;" and it is hardly fair for him to rep- 
 resent me as an obscenist because, ' merely as an attorney " 
 or otherwise, I try to explain to him what the Constitution, 
 law, and common sense on this subject really are. Whea 
 he is content to rest his zsal for purity upon them I shall be 
 with him. 
 
 VI. The editor is under misapprehension, also, as to what 
 the people expect of the Liberal party. It is not "sound in 
 principle or policy " for a Liberal party to become the advo- 
 cates of unconscitutlonal laws, pernicious espionage, or in- 
 quisitioas, which hav been dictated by " religious " zeal or 
 hypocrisy. To curry favor with an obscenity panic is busi- 
 ness that can be better and safely left to Mr. Comstock and 
 bis friends. We hav no call to compete with them ia such 
 rivalry, and shall gala nothing but contempt for the attempt. 
 
ON THE COMSTOCK LAWS. 45 
 
 The "awakened conscience" of the whole people is in 
 favor of constitutional liberty and common sense on this whole 
 subject. The Liberals are the natural lealers of this senti- 
 ment and movement. If they know enough to advance them, 
 Ihey wijll become the vindicators af the rights of the peop'e 
 and of Man. They will stand forth as a moral and politic il 
 power in the land. If they fail in this crisis they will hav 
 no sufficient reason for their existence. They will struggle 
 along scarcely worthy of the notice or of the contempt of 
 their opponents. L3t them take the watchwords, Liberty 
 AND Purity, now and forever, one and inseparable I 
 The future will then find in them the great, because the 
 reforming, growing, and moral, influence of the country; 
 for the free and the pure will certainly "inherit the earth." 
 
 New York, October 10, 1878. 
 
68 heplt to the index 
 
 THE E]T5]7IOISAI>ITY OF REFORM. 
 
 •'CRUSniNQ RE/VSOXS" FOU nEPEA.L 
 BY T. B. WAKEMAN. 
 
 To the Editor of Tlie Index: I regret more than ever 
 ttiat my answer to The Index crinci^ms did notappeir ia 
 your lust issue as intecded, for if fairly cods dered it would 
 ceriainly have saved tLe editorid th^t did appear. You 
 could DOt have then written a3 follows: 
 
 *' To c'emaud that there shall be no laws against the mail- 
 ing of obscene literature is necessaiily to demand that ihat 
 crime shall go UDpunished ; and to demand ihat crime shall 
 go unpunished is a glaring violaiion of political morality." 
 
 Here you assume two things which you have nt-vir 
 proved, and the contrary of which was clearly shown. 
 
 1. The simple mailing of a thing i.^ not a crime and 
 Congress cannot create it into " a crime." As Henry Clxy 
 said as to "incendiary" literature, it is all h«rmles< in tie 
 Postcfflne. It is the ''' circulation o>it of tie P .U tffice" that 
 makes the offense. And that "crime " must be discovered and 
 punished just as libels and all other crimes are by the states 
 and not by the General Government which has no Constitu- 
 tional power over them whatever. 
 
 2. Y'ju assume that those who favor the repeal of these 
 •' Postal Laws" as ULCcnstitational, incmoral, " wrong in 
 every way and pernicious in many ways," necessarily de- 
 mand that the circulation of obscenity shall go unpunished, 
 and this you say is the position of *' repeal." 
 
 Now the exact reverse of this is the truth. 
 
 The fact is that all the obscenity there was, was and could 
 and can only be suppressed by state laws. The mail.ng and 
 eve-y form of circuUlion can only be reached by them. 
 Tnis was all pract c»lly done before the Comstock posial 
 laws were passed in 1878. Only the stnte laws that s riUe 
 at the root and reach the printing, manufiic'ujr, and cir- 
 culalioQ in every form, including cypresses and i^-e mails, can 
 be « ff ciual. Postal laws cannot prevent the ciicalalion of 
 obscenity, for it has a hundred means beyond them. There 
 mu^:t be state laws ; they were efficient — why not continue 
 to use them until they fail ? All these postal liws have done 
 is to introduce ''espionage and decoy," which have out- 
 
ON THE COMSTOCK LAWS. 59 
 
 raged justice, liberty, and morality in pretencilDg to punish 
 "crimes" they have produced or induced. 
 
 You choose to leprescnt Ihe position of those who favor 
 repeal as *' utterly immoral." Thu3 you zak to f lighten 
 vhe uurcisoniDg and Ihe timid. Such misrrprcsenta'ion 
 may delight your orihodox oppon^nt^ like the '' SMesman" 
 but it should make the fair and judi. ious gritve. When 
 you delight that paper cxpr< ssly established to ovc( throw ihe 
 League, and put God in the ConstituMon, can you not see 
 that you are in the wroD«f ? Your course giv3 the " ortho- 
 dox '' all Ihey want, to wit, the C^n^titut'on-l power to dis- 
 pose of free thought and the liberties of the people as they 
 wish. Tbey always, the moj'>rity, will consult iheir views 
 and taste?, and not yours in the disposal. All L ber J liter- 
 ature, in the words of Judge Field's Opinion, i^ "deemed 
 injurious to th-^ pubUc mora's " in their minds. This is ihe 
 time for meditation over the fate of the tilly sheep who 
 trusted to the flitttry and promises of the wolves iostedd 
 of their own faithful dogs rnd fold. 
 
 Now as to the morality q .cation. You hav stated rx'ictly 
 the reverse of the truth. The cause of " gcn-iine morality m 
 politics, freedom, and viriue" which the Lesgne wa=i de- 
 signed to e«iablish, mfike it plainly nf cepsary for ail triends 
 of the Leaguo to vo e for the icpeal of thf j«e " wt'^pk " and 
 " pernici<;us " laws. This is the only m«»r\l pusitiox. 
 Wnen the fcg of metaphysical declaojaliou cJcars away, 
 these solid moral tnnhs remain : 
 
 1. It U gross " immorality in politics " to try to violate 
 and prostitute the Contliiution and lavtsof our country lo 
 p jrp )ses the}' were never intended to cover, and thereby ; 
 
 3. To brtak down the only protection to ]ii)eriy our 
 fa' hers gave us, so that the freedom of thought, of .«ipc(c'^, 
 of the presp, acd even of our property from 6^ zure, shtiil 
 m' aa no raoie than the whim of a msijoriiy in CocgreJiS, 
 vvh ch the *' orthodox" can always control. 
 
 3 It is immoral to destroy our t.ae post-( fS-^e by estab- 
 li^^h'.ng an e^pionoge over it and the sent men's of ihe peopi**, 
 thv.s taking away the liberty, cqialry, atid coufilcnce of 
 the people before and in the goveraa«ent ; aa the laws in 
 question do and mu&t do to be of any use at all. 
 
 4 It is immoral, and *• wickedly wrong," to pas^ laws 
 that can be executed only by " decoy," so as to make crime 
 
60 REPLY TO THE INDEX 
 
 In order to punish it ; as these laws do and must do, in the 
 interest of oflBcials, sects and agents. 
 
 5. It is "immoral in politics," and in every "way, to pre- 
 tend that Congress can create new crimes contrary to the 
 Constitution, out of the simple act of mailino: an inclosed 
 paper, and that it can thus acquire unlimited Federal crimi- 
 nal jurisdiction over the lives, liberty, and property of the 
 people. 
 
 6. It is immoral to represent and teach that good can 
 come by making crimes and punishing them without regard 
 to the Constitution, and in violation of the rights and liber- 
 ties of the people. 
 
 7. It is immoral to add to and foster the immorality of 
 obsceuity by pretending that it can be suppressed by any 
 post office laws, when, in truth, they cannot reach it, and can 
 only add to that " crime " the guilt of espionage, decoy, and 
 illegality, while it can^only be practically and legally sup- 
 pressed by state laws, which will reach i.'s printing, manu- 
 facture, and circulation in every possible way, as they hav 
 done when enforced, for one hundred years. 
 
 8. It is immoral and fraudulent (" whatever the intention 
 of the parties may be") to continue to p'pres-nt that *'re- 
 form ^ ' CAn gt-t rid of the ut^ lawfulness, and immoral and 
 pernicious const q lences inherent in these postal laws, with- 
 out being able to show, or even trying to show, how it can 
 be done. 
 
 9. It is immoral to represent that the liberties of the peo- 
 ple are, or can be, as safe under the usurped and irresponsi- 
 ble criminal jurisdiction of the Federal Government as tbey 
 would be in the states and before courts, and officers, and 
 juries of the vicinsge. 
 
 10. It is " immoral in politics " and in every way to make 
 the Liberal Leagrue an instrument to sacrifice the real, per- 
 manent, conf^ti;ulional rights and liberties of the people to 
 a cans^eless obscenity panic, goiten up chiefly by those who 
 wish now to use it, by meanj of these very Uws, to crubh 
 libcr'ry «nd Liberalism out of existence. 
 
 11 It 13 immoral to ask the Liberal League to become the 
 accomplice of its adversaries in betraying the libiiriies of 
 the p:ople. 
 
 Thie is enough for those who will stop and think. For 
 thoEC moral and "crushing reasons," and Jpecause " tke Lib- 
 
ON THE COMSTOCK LAWS. 61 
 
 eral League is, as you say, shaped symmetrically,'" it must 
 stand by " genuine morality in politics and freedom " by 
 voting for the repeal of those laws ; because they arc 
 really immoral, futile for good, the inevitable cause of out- 
 rages, injustice, and vPTong — and in every way " inconsist- 
 ent with the genius of free institutions," as the League de- 
 clared at Philadelphia. 
 
 The five "crushing reasons" in your last editorial are ex- 
 actlj* reversed by the above considerations, and, like btones 
 too heavy for the heaver, roll back and crush the one who 
 moved them. 
 
 Yes I You are right ; the League "cannot afford to deny 
 its own foundations." " It is built upon respect for moral- 
 ity," not upon hypocrisy, nor so-called "respectability," nor 
 the breath of Sirs. Grundy, but upon good, true, substan- 
 tial, common-sense, practical, constitutional "morality in 
 politics " and out, " and on freedom" as the only cause and 
 foundation of " virtue." If the Liberal League is true to its 
 name, its cause, and itself, it will be not a sham nor a trai- 
 tor, but a power to eflect these results by the repeal of those 
 laws which violate them all. Yours respectfully. 
 
 I^ew York, Oct., 17, 1878. 
 
[Truth Seeker Tracts. No. 150. J 
 
 The Liberty of Printing. 
 
 AN ADDRESS AT THE SECOKD ANNUAL CO^GREFS OF anR 
 NATIJNAL LIBERAL LEAGUE, AT SYRACUSE, OCT. iQ, 
 1878. BY THE nON. E. P. HURLBUT, OF ALBANY, N. Y. 
 
 Mu. Phesident. and Brethren op the National 
 Liberal League— Ladies and Gentlemen: My tulject 
 is " The Libeily of Pnuiing " — i matter ot tae utmost coa- 
 cern to an enlightened age, and priceless in a laud of f:ee- 
 dom ; and should I stumble under its weight, by reason of 
 age Oi infirmity, I trust that, in your charity, I may hav 
 ertdit at Itast for good intentions, which are considtred by 
 some as cot a mean order of talents. 
 
 The Liberty of Printing — what is it? It is, spe^ikifg 
 figtiratively, to enjoy an intellectual atmosphere as free as 
 ti,e material cne which we breathe, being on our guard 
 against impurities. 
 
 It is to stimulate acd be stimulated by the oxygen and 
 ozone of the cultured human intellect, avoiding the deadly 
 maliiia lurking in the marshes and sewers lying at the base 
 of the depraved mind. 
 
 It is the parent of science, the educator of our race, the 
 unfettered moral and intellectual giant, under whose tieud 
 aod at whose call mankind hav torn the serf's collar from 
 their necks, broken the chains of kings and- emperors, and 
 compelled pope, prelate, and priest to giv a reason for the 
 faith that is in them, or thenceforth to resign their leadei- 
 ship of mankind. 
 
 In France it demolished the Bastile; in Spain it abolihhed 
 the Ii quisition, and in New Eaglnnd Cotton Mather as an 
 '* institution ;'* alihough the la'ter died hard, maintaining 
 with his latest bieath "that there is a God, a devil, and 
 witches." 
 
 Public sentiment, stimulated by the press, abolished the 
 
2 THE LIBERTY OF PRINTINO. 
 
 slave trade in Great Britain, slavery in her West India colo- 
 nies, and finally slavery in these United S*ites. It consoli- 
 dated Italy, and thut up the vicegerent of heaven in the 
 Vatican. Without the liberty of printing, a democrat'c 
 republic cannot exist; a plea for the former is a plea for its 
 life. 
 
 Thus knowledge, science, virtue, human enlightenment, 
 and progress — law, order, and free government — are found- 
 ed on books, as the world was once fabled to rest on Atlas. 
 We hav been taught to reverence the Book ; let us rather 
 hold all good books to be sacred. 
 
 But all books are not good; and here we encounter a diffi- 
 culty which the wisest philosophers, jirisfs, and statesmen 
 hav been greatly embarrassed in their attempts to remove. 
 
 Attend to one of the most gifted of mankind, treating of 
 this subject. "I deny not," says he, " but that it is of the 
 greatest concernment in the Church and Commonwealth to 
 hav a vigilant eye how books demean themselves, as well as 
 men, and thereafter to confine, imprison, and do sharpest 
 justice on them as malefactors: for books are not absolutely 
 dead things, but do contain a progeny of life in them, to be 
 as active as that soul whose progeny they are ; nay, they do 
 preserve as in a vial the purest efficacy and extraction of 
 that living intellect that bred them. I know they are as 
 1 vely and as vigorously productive as those fabled dragon's 
 tteth, and, being sown up and down, may chance to spring 
 up armed men. 
 
 "And yet, on the other hand, unless wariness be used, aS 
 good almost kill a man as a good book ; who kills a man 
 kills a reasonable creature, God's image ; br^' he who de- 
 stroys a good book kdls reason itself — kills the image of 
 God, as it weie, in the eye. Many a man livs a burden to 
 the e^rth ; but a good book is the precious life-blood of a 
 master spirit, embnlmned and treasured up on purpose to a 
 life beyond life. It is true, no age can restore a life, where- 
 of, peihaps, there is no great loss; and revolutions of ages 
 do not oft recover the loss of a rejected truth, lor the want 
 of wbich whole nations fare the worse. We should be wary, 
 Ihertfore, what persecutions we raise against the living 
 labors of public men — how we spill that seasoned life of 
 man, preserved and stored up in books; since we see a kind 
 of homicide may be committed, sometimes a martyrdom ; 
 
THE LIBERTY OF PRINTING. 8 
 
 and if it extend to the^hole impression, a kind of massacre, 
 whereof the execution ends not in the slaying of an elemental 
 life, bat strikes at the ethereal and fifth essence, the breath 
 of reason itself — s'a>s an immortality rather than a life." 
 
 Thus wrote that great scholar, statesman, and poet, John 
 Milton, on "The Liberty ©f Unlicensed Printing." Ilia 
 argument was designed to overthrow a statute, then in full 
 force in England, "To regulate printing, that no book, 
 pamphlet, or paper shall be henceforth printed, unless the 
 same shall be first approved and licensed by such, or at least 
 one of such, as shall be thereto appointed." The statute once 
 abolished, he claimed that all printing should be free — ex- 
 cept that authors should be held responsible for the abuse of 
 their freedom; or, to use his own words, that the law should 
 ** thereafter confine, imprison, and do sharpest justice on 
 them as malefactors," for the printing of offensive books. 
 
 How are we to enjoy the benefit of good books without 
 incurring the evil of bad ones? 
 
 In the olden time it was attempted to draw the line in 
 Greece; and books which were regarded as Atheistical and 
 blwphemous, or libelous, were burned, and the authors 
 banished. Of books tending to voluptuousness they took 
 no heed ; and an ancient poet complained that for this rea- 
 son there was a dearth of chastity. 
 
 Ancient Rome did but little on the subject ; some books 
 were condemned and burnt — books that were blasphemous 
 — but a censorship was never established until after the in- 
 vention of printing, when the popes were alarmed at its 
 influence in the diffusion of knowledge. They prohibited 
 the printing of certain heretical books, and foibade their 
 subiL'cts to read them, by their famous Index, under pain of 
 censure or excommunication. 
 
 This censorship spread ever Europe like a malarious at- 
 mosphere, until even liberty-loving Ecgland at last em- < 
 braced it. But as she was the last to adopt, so, let it be 
 remembered to her honor, that she was the first to abolish 
 it ; and now, so far as I know, the main, if not the only 
 restrictions which are in practical operation on the liberty 
 of the press in that country are in reference to libels on 
 private character, and obscene books, prints, drawings, and 
 pictures. 
 
 In tlie&e United States there has never existed a censor- 
 
4 THE LIBERTY OF PRINTING, 
 
 ship of the press ; but of late it has been compelled to 
 attend to a grim farce, in which a noiable Paul Pry has been 
 the sole actor. Such Las been ihe success of his perform- 
 ances that he has completely " brought dowu Ibe house " — 
 but mainly, 1 trust, on his own head. ;Now, while I do not 
 object to the ostensible aiaa and obj.^cc of this piocenure, — 
 to wit, the suppression of ob.-cene l.teratuie — I piotesi, in 
 the name of liberty and human rights, sgHiDht ibe comse 
 and manner of it, as low and mean, too cunning to be inno- 
 cent, loo sharp to be honest, oppressive, and at war with the 
 whole theory of administration in a free government. 
 
 Let us examine this subject, with a view to secure the just 
 freedom of the pres?, and b.^, the same time to pievt-ni so 
 much of its licentiousness as is practicable. 1 know this is 
 delicate ground, and is rendeied doubly so under our com- 
 plicated system of government; so ihat we need all the 
 lights of the law, and of human experience and philosophy, 
 in order to achieve success. 
 
 Now, as I have said, Eogland intends th'it her press .s-hall 
 be free ; and yet in the reign of her present bentficent 
 queen she has passed statutes again*t obscene books, pic- 
 tures, etc , and endeavored to suppress them. 
 
 The wilful exposing of an obscene print, or indecent exhi- 
 bition, is an indictable offense at common law, lankiog 
 with the indecent exposure of the person. As there is no 
 absolute freedom for man in the social state, so there is and 
 cm be none for the press. All social and moral freedom is 
 limited by ii«?hts. There ia a natural, and there is a civil 
 freedom ; and the latter only is accorded to man in the 
 social state. The first, if he were ll^e only ape-like man 
 existing at the beg nnicg of our evolution, was absolu eiy 
 free. But the moment Le came to have peeis, he lound he 
 had to conduct within certaiu limits, wh;ch resptcied tbe 
 rights and feelings of other?, or he would be treated not as 
 a lespeclable Adam, but n-ther as the first '*iraa.'p.'' 
 
 At ieng-h, afier long ages of experience in the soc'al 
 state, the idea of not doirg to another what he would not 
 have done to himself becau-c seated in the fibres of his 
 brain, aLd was trans^mitted by herediiy, so that now ihe 
 essence of bll morality nnd all law may be summed up in a 
 precept of eight words, and can be taught without express 
 
THE LIBERTY OF PRINTIXQ. 6 
 
 revelation or a burdensome priesthood, to wit, Be just and 
 kind to all sensitke beirgs. 
 
 There fs, as 1 was saying, no liberty in the social state 
 which has not respect to ottiers' rights and feelings. You 
 mny not slander a man or woman without being amenable 
 to the law ; and yet this responsibility, which is a decidtd 
 infiingemenl of the absolute freedom of speech, obtains in 
 every state in the Union. 
 
 The constitutions of these states all, however, declare 
 that speech f-hall be free ; but by what language do they de- 
 clare it? In thi^ — to wit: "Every citizen may freely 
 speak, write, and publish bis spntiments on all subjects, 
 beivg refponsiblefcr the aliis". of tlat rigid ; and no law {•hall 
 be passed to restrain or abridge ihe liberty of speech or of 
 the press." And in the New York Cons itution it is written 
 that ** in all prosecutions or indictments for libels, the truth 
 may be given in evidence," clearly showing that the consti- 
 tutional freedom of speech and of the press, thus secured 
 to every citizen, was to be limited by the rights of others ; 
 that l.belers should be held responsible as for an abuse, and 
 that the jast restraint and punithment of the licentious ex- 
 ercise of that freedom was not to be legarded as a violation 
 of it. 
 
 If by the words, *• being refponsible for the abuse of that 
 right," it were intended to limit such abuse to libils on 
 private character, as some contend, why did not the framers 
 of the Constitution say so in exact words, instead of em- 
 ploying a phraseology which implied a great deal more ? 
 They were familiar with Ihe common law, which went fur- 
 ther, and condemned as offeoders as well the authors of 
 ohk»cene prints, drawings, and pictures as others who cfP^nd- 
 ed agains^t good morals and manners. 
 
 The Constitution of Louisiana in the days of Edward 
 Livingston declared that " Printing presses should be free 
 to every person who undertakes to examine the proceedings 
 of the Legislature, or any branch of the government ; that 
 the free communications of thoughts and opinions are one 
 of the inva'uable rights of man, and that every citizen may 
 f-ffly peak, wrir.e, and pdnt on any subject, being responsi- 
 V.efur t"<e abuse of that liberty.'* 
 
 Mr. Livingston was appointed a commissioner to frame 
 a criminal code under this Constitution. He was a truly 
 
6 THE LIBERTY OF PRINTING. 
 
 great man, statesman, and jurist. No American laxvyer 
 ever enjoyed a higher reputation, either at home or abroad. 
 He was a firm supporter of the liberty of the press, and his 
 code provided penalties against its infringement. Ue was 
 liberal in his views of religi-rn, and expressly provided, for 
 the first time in this country , that the religious opinions of 
 a witness should neither affect his competency nor his credi- 
 bility. His code as reported was the admiration of jurists 
 and publicists all over the world, and will endure as a per- 
 petual monument to his fame. I feel the utmost assurance 
 that, in fracaing the law on this subject, Mr. Livingston 
 weighed most critically all the objections that can be raised 
 against a law punishing the authors of obscene prints. 
 While deliberating on the provisions of the common law as 
 to the offenses of a moral nature, he had doubts and misgiv- 
 ings as to what portion of them he would embody in his 
 code; and, "while yet he had formed no decision," he 
 wrote to a learned doctor of the civil law, expressing his 
 doubts and difficulties, asking for advice and suggestion, and 
 Baying that one of his embarrassments arose from " the dif- 
 ficulty of defining the offense." He objected to the "gen- 
 eral expression of the English law," as *' putting too much 
 power in the hands of a fanatic judge with a like-minded 
 jury." But after full reflection, he at last settled upon the 
 following as a safe and salutary law, and reported it to the 
 Legislature of Louisiana for enactment. 
 
 Title sixteen of his code concerns " Offenses against Mor- 
 als," and the second chapter of this title provides for the 
 punishment of '* Offenses against Decency," the first section 
 whereof is as follows: 
 
 "If any one shall make, publish, or print any obscene 
 print, picture, or written or printed composition, manifestly 
 designed to corrupt tbe morals of youth, or shall designedly 
 make any indecent or obscene exhibition of his person, or 
 the persons of others, by which pudicity " (modesty or 
 chastity) "is offended, he shall be imprisoned not more 
 than six months, or fined not more than one thousand dol- 
 lars, or both; and the imprisonment, or a part of it shall be 
 jn close custody." 
 
 This statute he considered to be in enti: e harmony with 
 the liberty of the press, as secured by the American Consti- 
 tutions; and I emphatically concur in his opinion, and see 
 
^HE LIBERTY OP PRINTING, 7 
 
 now how wise and guarded is the law he proposed. The 
 print or picture must be "obsceiw." The instinct of every 
 man and woman of ordinary intellect and common modesty 
 defines the meaning of that word. You seem to need hardly 
 any explanrt,i-i>n about it, any more than you do to define 
 the peculiar odor of that animal of which this country is so 
 happy as to enjoy the monopoly, and known to our natural 
 history as mepJiiiis Americana. Your sense of smell defines 
 his odor. So in the case of an obscene picture; you look at 
 it, and turn away offended, disgusted. You read the ob- 
 scene book, and are shocked in erery modest fibre of your 
 brain. If you need any further guide, the common law 
 everywhere prevalent will supply illustrative cases. 
 
 But this wise and cautious law-giver did not; stop with 
 the one word " obscene ;" the book or print must also be 
 " manifestly designed to corrupt the morals of youth " — the 
 author having the wisdom toforsee Ihat any further abridge- 
 ment of the liberty of the press would woik more evil than 
 good ; while the suppression of obscene prints, designed, 
 or mainly tending, to corrupt the morals of youths, was 
 such a beneficial work as no law giver could properly neg- 
 lect. 
 
 There are those who demand that the statute shall define 
 what it means by "obscenity." With jurors in general it 
 would not be necessary, and it requires their verdict in or- 
 der to convict. 1 confess 1 hav not the capacity to define it 
 by words, so as to preclude all possibiUy of error in the 
 courts. That cannot be done for any law. Perhaps the 
 only thing that can be done would be to specify ctrtain 
 prints that shall not be deemed obscene, which would be 
 saying what is not rather than what is obscenity. You see 
 the difiicnlty when the law is applied to pictures, in which 
 case you would have to giv illustrations, in order to be defi- 
 nite, and your statute book itself would become pictorial 
 and immoral at once. The picture defines itself, and so do 
 most obscene prints. A lawyer would say, after adopting 
 Mr. Livingston's provision, leave it to the juries and the 
 courts under the common law, and be sure you have intelli- 
 gent juries and competent judges. 
 
 1 hav no objection, however, to a proviso, by which it 
 should be declared that an agument or treatise written in 
 
8 THE LIBERTY OF PRINTI^'G. 
 
 sincerity and good faith— in which no obscene words 
 should be employed, althouch its doctrine?, if carried into 
 practice, would hav a corrupting influence — should not be 
 deemed within tbe meaning of the statute against cb-cene 
 prints; but I feel assured that, when we narrow down the 
 cffense, as in the Louisiana code, we shall be reasonab y se- 
 cure from dangerous constructions. 
 
 A case has arisen in which the author of a pamphlet, 
 without employing an obscene word, has advocated a course 
 of conduct between the sexes utterly subversive of civiliz i- 
 tion, the family, and the state ; hading to a return to tbe 
 manners of the ape-like man, or rather to those of the man- 
 like ape. It is a clear case of inverse evol-jtion; of an au- 
 thor, as the phrase is, "exceedingly backward in coming 
 forward," and particularly forward in going backward; but 
 I should pause long before I held it to be obscene in a legal 
 Stn e, or if so, such a species of obsceniiy as the law cuuld 
 condemn, without danger of trenching on the freedom of 
 discussion and ihe proper liberty of printing. 1». might be 
 indictable in the couit of Judge Lynch, as " an assaut aiid 
 battery " on society and morals, and the culprit be punished 
 according to his code, which some are inclined to legnrd as 
 an implied and necessary supplejsient .to the democratic 
 constitution of government. 
 
 When young and sanguine, I published certain essays on 
 human lights, in which 1 remember to hav argaed in favor 
 of their natural origin ; sna among oiher things 1 main- 
 tained that a man had a legbl r'ght to be a fool, since nature 
 made him so ; but that society could not allord to allow 
 him to be a knave, however nature may hav abused him, 
 and now that 1 am old I see no reason to depart Irom that 
 doctrine, and 1 would app'y it to the liberty of printing. 
 If there were nothing else to be considered but praciica 
 b lily, think what an army of martyrs would spring up in 
 the literary world under a contrary rulel As the world 
 even now can scarcely contain all the foolish books, includ- 
 ing dollar iind dime noveh, so the prisons could by no 
 mt-aos conain thtir au hors ; and moreover Dime Nature 
 woud have to gel up a special evolution of IMlsbury's in 
 ordf-r to supply the keepers ! 
 
 Ilere, then, I take my &tand. I will ask no further limita* 
 
THB LIBERTY OP PRINTING. J^ 
 
 tion of the liberty of printing ihan the co(l»? of Mr. L* vin*?:- 
 stoa crratep, ard I ircline to arcfp! lo Ifsp. It is in bar- 
 mony -with ibe common law, it is coi stitu ienal ; it ia 
 called lor by the culiivaltd stntimentsof m^ik ml; aid it 
 is conserrative of the morals of youth. If vre mnintain -he 
 residue of our criminal code, 1 t us I y no mesDs < m-t th^t. 
 
 llbvlng now dfHWD a lire of s^paiaii n beiwren the lib- 
 erty of the press and its licentious* abu^e in the pi>^to gov- 
 ernmen^.p, we are prepared to look at the Coi'sti ution of the 
 Uni^f-d States, and to tee "what rule is to obtain in cur Fed- 
 eral Union. 
 
 AVe encounter at once the provision in the Constitution of 
 the Uaited States, that " Concref s s-haU m ke no Uw 
 fibrideing the freedom of speech, or of the pre^s:" so ih<it 
 the qnes'jon a^ain rfcurp, "What is this fierdom of the 
 press; and is it one In the stHtes and in the con'f der^icy ? I 
 hav labored in vain uoliss I hav sh >wn tha^ it is not abso- 
 lute and unlimited; that the pre?<8 is not at liberiy lo print 
 false libels on priv&te cbarscler, ror to publish obscene 
 prints or pictures. This would not be freedom, but licen- 
 tiousness; aod in is nowhere written th^t laws cnnnot be 
 passed by the proper 8uthoritie«» restrainiig that. That 
 which the state constitutions tnd la^so'dau on this sub- 
 ject defines the freedom of the p-ess. Nay, the frwrn^rs of 
 the coDStilutions of the states and also cf the United 
 S.ates, in employing the phrase *' freedom of the prePs," 
 used it in the ten-e well understoi rl, jicd as d» fioed by the 
 writers on the common law; and kt us see whm th^y say on 
 the subj ct. Sir William Blackf^tone, the most a- com- 
 plished of Ibem a'l, who wrote befoi^any of thee consti- 
 tu ions were framed, hf 1 Is this langUig*": 
 
 •'Tde liberty of the press is indeed tsseutial to ihp na'nre 
 of a free s'ale; but this consists in laying no j^Tevious 
 restraints on puljlicatiocp, and not in fieedom from ceoj^ure 
 for criminal matters whin published. Every ficeman has 
 an ut doubted right to lay what fen iment be pleises before 
 the puhlir; to forbid this is to destroy the fiec^om of the 
 pr s>; but if he publishes whnt is impn p-^^r, mischi-^ vous or 
 illcghl, he must take the cons«quence8 of his own tfmerity. 
 To sulj-.ct the press to the restrictive power of a lic^^nser, 
 Ki was f( rmerly done both before and since the R volution, 
 is to subject all freedom of sentiment to the prejudices of 
 
10 THE LIBERTY OF PRINTINGr 
 
 one man, and make him the arbitrary and infallible judge of 
 ail controverted points in learning, religion, and govern- 
 ment." 
 
 He argues then in favor of punishing the licentiousness of 
 the press, and concludes thus: "And to this we may add 
 that the only plausible argument heretofore used for the 
 restrainiDg the just freedom of the press, * that it was neces- 
 sary to prevent the daily abuse of it,' will entirely lose its 
 force when it is shown (by a reasonable exertion of the laws) 
 that the press cannot be abused to any bad purpose without 
 incurring a suitable punishment; whereas it never can be 
 used to any good one when under tke control of an in- 
 fipector. So true it will be found that to censure its licen- 
 tiousness is to maintain the liberty of the press." 
 
 Now, I hold that the phrase, "freedom of the press," 
 means the same in the Federal and the state constitutions, 
 and in all nothing mere than freedom from previous censor- 
 ship ; the states, and not the Federal Government, ha^ijiig 
 the power to punish abuses. 
 
 And now assuming that the states where the printing is 
 conducted by their laws condemn and punish obscene 
 prints, can a paper containing matter condemned by such 
 laws gain any new right or exemption by being placed in the 
 mails? Is it suddenly cleansed there? The obscene print 
 was not free at its birth, and can gain nothing by setting 
 out on its travels through the mails. The stigma and the 
 disability still rest on it. It was never free (except from a 
 licenser), and can never become so until obscene literature 
 becomes innocent and right by the common law ard the 
 statutes of the several states. And when that shall happen, 
 it will be of little consequence what matter shall be printed 
 or mailed, for law, reason, and morality will hav departed 
 from the land. 
 
 It is a maxim of the law that a man shall gain nothing by 
 his illegal act. A print that lias no right to exist can claim 
 no protection from the law, which does not cherish, but 
 rather abates, nuisances. Shall the law, then, not only 
 protect, but carry thousands of miles, and distribute to tens 
 of thousands of people, prints which it condemns as infa- 
 mous, and whose authors it punishes by fine and '.mprison- 
 menl? Sball the government become an accessory after the 
 fact, and at the same time hold its lash over the head of the 
 
THE LIBERTY OF PRINTING. 11 
 
 principal? This would be to the last degree unreasonable. 
 The ftate and Ft^deral governments together constitute a 
 complete sovtrdgrdy over the press and the distribution of 
 printed matter through the mails, and this would be the 
 sum of their ^'om^ operations; the state would define and 
 control the liberty of the press, would punish and condema 
 obscene prints, and imprison offenders; while the United 
 States would circulate such prints to the utmost limits of 
 the very f tate that forbids and punishes them. The state 
 would fine the ofi^ensive author and printer, while the Uni- 
 ted States would take a fee from them, a reward as carrier, 
 and assist their trade in corrupting the morals of youth. 
 The state would hav acted wisely, but Uncle Sam wwuld 
 bav played either the knave or the fool, and he might 
 devoutly cry '*//i Ood we trust " forever, and stamp it holi- 
 ]y on every poor penoy he has got, but he would share the 
 fate of other hypocrites, for nobody would trust him. 
 
 J^^j^the power to establish post-offices, and post-roads, 
 an^ocarry the mails having been delegated as a Federal 
 power, resides in the Government of the United S ates, to 
 the exclusion of the several states. In executing this 
 power, the Government is clothed with a limited sovereign- 
 ty, and may do whatever is necessary and proper or con- 
 ducive to the end of carrying the mails, so as to answer the 
 intent and object of tluir inbtitution. It may appoint aad 
 control its agents; may puuith fraud, robbery, and other 
 offenses which obstruct, hinder, or prevent the success of 
 the mail enterprise. When it punishes a robbery, or other 
 offjnse against the mails, it is not for the purpose of a gen- 
 eral correction of the public morals, or of enforcing any of 
 the Ten C:'mmandments, but to enable it to succeed in 
 safely delivering the mails. It is the duty of the Govern- 
 ment to remove all obstacles to the complete and beneficial 
 exercise of its power, which is useful, beneficent, and con- 
 cerns all the people. It therefore punishes offenses which 
 interrupt, prevent, or embarrass its operations, lest it should 
 fdU short and fail of its duty. 
 
 Bat the power delegated to the General Government was 
 bestowed by the states, which made criminal the printing 
 and sending abroad of obscene publications; and when they 
 surrendered the power of carrying the mails, did they intend 
 to destroy or defeat their own purposes, and to arm an 
 
12 THE LIBERTY OF TtS.VsTV<rG, 
 
 enemy in the agent which they created that phould dQ^troy 
 the (fficacy of their own kw!^? Was it not expected that 
 the power delegated should be so (Xt^nis-eil as not only to 
 be beneficial, but innocent in i»s operation? that in re"*peot 
 of the raatier carried, the sta'es and the Uaited Stites 
 fchould act in concert? that ihe latter i.bould not dii^semiuate 
 wttHi ihe forcopr stamped with iofamy? 
 
 Would the date itself, if carrying tin rr.a'l, imprison the 
 oh.tcene author, at<d yet carry aitd didnbide his flthy gtcd^f 
 And sba 1 we ho:d to such a narrow construction of the 
 Federal powers as will make the states and the United Spates 
 thus pUy at cross-purposes? I think not. 
 
 By yivffing the mails with obscene matter, the service is 
 made to ejceed arid overdo its proper cffice; tobehaimful 
 and a nuii-ance rather than a benefit to the people ; and it 
 seems hardly to be straining a point to hold th9t, by 
 the delegation of power to Congress to make all laws 
 nece^saiy and proper to carry into eflfect the powers 
 conferred in re!erence to the miil«, auihorify is 4iiliM!d 
 to prevent as well the mischiefs of cariyicg obscene 
 litf-raiure as those ari-ing from mail robberv, so that the 
 tervice should be protec ed i-s well from the dangers of ex- 
 cessive, as those of inadequate performance, and be not only 
 useful, but harmless — at least to tuch extent as not to be 
 accessory to crime. It is but a mode, in either case, of pro- 
 ttc ing its^limited sovereignty, and discharging its office witii 
 integrity and decent dignity. 
 
 The case is widely different from that presented in the 
 days of Jackson, when Congress was agitated by a proposal 
 to exclude printed articles against slavery from the mails. 
 Slavery is not sanctioned by the law of Nature, nor by the 
 common law, and can only obtain by local and wrongful 
 legislation. Being contrary to natural right, and offensive 
 to the ju^t sentiments of the civilized world, it was univer- 
 sally lawful, and even commendable, to write and speak 
 against it. 
 
 The exception in a few Southern states, created by urjast 
 legislation, could not render a dissertation against slavery, 
 ■written and printed in a free country, unlawful in itseir. If 
 the paper were innocent in its inception, by the law of the 
 place where it had its origin, it did not lose its character by 
 being placed in the mails. And so it is evident that Congress 
 
THE LIBERTY OF PRINTING. 13 
 
 could not throw it out of the mails without trespassing on 
 the right of property and abusing its power. The only act 
 of repression could be done bj the slave state after the ma'l 
 service was completed. The paper was innocent when placed 
 in the mails, innocent while being transported, and when 
 dtllvered, and could only become offensive by force of a 
 local law, opent.ing on ;he person to whom the printed 
 matter was addressed, after he had received it. JNo wonder 
 that learned jurists and wi?e senators refrained from laying 
 hands on such printed matter, and thrusting it out of the 
 maih, a'? mentioned in the very able and ingenious argument 
 of Mr. Wakeman, delivered at the late " Indignation Meet- 
 ing " in Boston. 
 
 But the printed matter which I would exclude from the 
 mail:* is unlawful in the place of its oriein, unlawful during 
 its transit, and unlawful at the place of its destination. Its 
 preparation is a crime, its author a criminal, its p^>^8e>ieif'n 
 and circulation a crime, in most, if not all, civilzed coun- 
 tries, and wherever the common law prevails, or Its spirit 
 has been embodied in a statute; and if the carrier or distrib- 
 utor be a private person, he would be particps cruninis in 
 judgment of law. And now shall we place the Federal 
 Government in the same category? 
 
 This government assumes the burden of the mail?; it may 
 say when and where it will carry ihcm, what it will cnrry, 
 and what it will not; for it seems too clear for debate llMt a 
 power to choose implies also a power to reject. Aod if 
 there be a power to reject any printed matter — as I contend 
 there is, if it be obscene and unlawful — an incidental power 
 exists to make that rejection effectual. This is usuhUv done 
 by the infliction of pains and penalties; and in the infl ciion 
 of these the government proceeds, not as against moral 
 offenses, but offenses against the proper regulation o* the 
 mail service. I concede that any step beyond this wool \ be 
 pure usurpation and tyranny on the part of the Federal Gov- 
 ernment, 
 
 It is a business, this carrying of the mails, within the 
 competency of private persons. Let us imagine our UdcI'^ 
 bim carjying the mail-bag on his own broad shoulilers, h«v 
 lug told everybody what he would carry and what ho would 
 not, and a person skould come and insist upon cramming 
 his maU*bag with bad matter which the old geatleman had 
 
14 THE LIBERTY OF PRINTING. 
 
 sworn he would not carry, I think our uncle would make no 
 bones of settling the matter off-hand, pedlbus et manibus, to 
 the utter discomfiiure of the assailant; and he would eeive 
 him right. It would be a mode, according to the rhetoric 
 of such cases, of "putting a head oa him" — an article of 
 furniture which he would seem greatly to need. 
 
 It is conceded that a single undivided sovereignty like the 
 Government of Great Britain can exclude obscene literature 
 from the mails by seizing the foul prints, and the infliction 
 of pains and penalties. But it is claimed that in our distri- 
 bution of powers between the states and the Federal Gov- 
 ernment this authority has not been conferred on the laiter. 
 Where, then, can it be found? If reserved to the states, or 
 the people, it is clearly not available; for no state can touch 
 the mail service without trenching on a power it has in gen- 
 eral terms delegated to Congress; and no popular mass can 
 meddle with the mails without being guilty of riot. So it is 
 left that, if the Congress of the United States has not the 
 power to exclude obscene prints from the mails, this one item 
 of sovereignty is lost, and our government has tied its hands, 
 so as to be at the mercy of those who deal in obscene litera- 
 ture as a profession and business. A construction of the 
 Federal Constitution which leads to such a conclusion is 
 surely too narrow to be sound. 
 
 Now to my mind there seems to be nothing in the way of 
 protecting the mails from foul matter but the fear of violat- 
 ing the freedom of the press; and as I trust you are by this 
 time satisfied that there ought to be no obstacle in that, wc 
 come to the inquiry, What is the Federal Government to do 
 in reference to obscene prints? 
 
 In my judgment. Congress should declare that such prints 
 are not mailable matter; but in doing so should employ the 
 word "obscene" only, following the language of the pro- 
 vision in the code of Mr, Livingston as to the corruption of 
 youth; being exceedingly particular, so that no religious 
 fanatic or visionary moralist could find a word or clause on 
 which to base a persecution of anybody for God's sake! 
 
 A God of ordinary ability is supposed to be capable of 
 taking excellent cAe of himself, and to scorn the assistance 
 of a creature but imperfectly developed from the ape. 
 
 The law should then aflQx such a penalty as would be suffi- 
 cient to deter people from mailing obscene publications, and 
 
 J 
 
THE LIBEETY OF PBINTING. 15 
 
 no more; for the object is not to make a moral code, nor a 
 penU ct de, nor enforce a creed, nor build up a catechism, 
 Lutsimp.yio protect tbe governmeni in the fit and proper 
 d.s-h-irge of iis fane ion as mail carrier. 
 
 A fiue of a moderate sum for the first offense would be 
 suflicient, say not exceeding fifty or a hundred dollars; and 
 for the second offense, imprisonment not exceeding six 
 months. In all cases where punishment and penalties are 
 infl cted, the legislature should be careful to observe [the 
 supreme law, wtiich ordains that excessive fines shall not be 
 impoi^ed, nor ciuel and unusual punishments ioflicted. 
 
 If the GoverQuieot should find it necessary to go further, 
 and to seize the foul matter mailed (a delicate procedure, 
 and one which nothing but necessity can warrant), it would 
 encounter a provision in the Constitution securing the peo- 
 ple pg^inst unreasonable searches and seizures, and forbid- 
 ding warrants for that purpose except upon probable cause, 
 and i?upported by oath. The pecple are not secure from all 
 searches, but only from unreasonable ones, Without proba- 
 ble cause and legal warrant. 
 
 So us=ed are the people to this, that the first thing a plain 
 man thinks of when he loses anything mysteriously is a 
 se«rch warrant. It is the one idea with him, as was an 
 " aiibi" in every case at law with Tony, the venerable parent 
 of Sam Weller. 
 
 It maybe a very difl5cult process, but it can hardly be 
 deemed *' unreasonable," to search for and to seize prints 
 whose aim is to corrupt, youth, whose existence is a crime, 
 and which are forced into the mails against the express in- 
 junction of the law. I will leave this to the mothers of the 
 laud: they hav a right to be heard on this subject, and to 
 bav their feelings respected by the laws. Let their quick 
 sense of fitness, their apt and delicate judgment, make the 
 decision, and woe to that man and that nation that ventures 
 to disregird i I 
 
 But if the Government shall b3 compelled by the persist- 
 en( e of wrung doers to seiza th'3 foul prints, how shall this 
 be done? Tne only course which occurs to my mind, from 
 what leflcjctioa I hav been able to bestow on the subject, 
 would be to commit the search to the several deputy post* 
 masters, who should apply to a United States commissioner 
 or judge for a warrant, and under that to seize the suspected 
 
Id THE LIEEKTY OF PEINTINa. 
 
 prints, and carry them before the officer issuing the warrant, 
 ■who should determine on readins; or inspection whether ob- 
 fc ne, ani Icndicg lo corrupt ihe morals ot 3'outh, nr not. 
 It he h' li them ob-cene, the owaer sho Id h^v notice acd a 
 light of appeal t ) the (Jiicu i Court, and thence to the Su- 
 preme Cjurt of the Uai cd ttates:; for uo man should be 
 thus deprived of his property, and stigmu^z-d as a public 
 offender, without the lu'l benttiv of a judicial irial. 
 
 It is better that obscene literature thouU prevail for a 
 season than that any man, however humble, however de- 
 praved, shouli hd deprived of his leg J rights without due 
 process aLd the enlightened j'ldgment of the law. 
 
 Citthren of the National Liberal League, you are organ- 
 ized to pel form a necessary and a noble work — no less than 
 that of per feeling our systtm of free government, bounded 
 by a wise and viituous generation, and intended to cilect a 
 perfect separation of the Caurch from the S:ate. The task 
 which you hav assumed to execute is herculean, taxing your 
 streog.h and resources to the utmost. You hav to make 
 war on the myths, traditions, and prejudices of long ages. 
 You hav a thoroughly organized majority, misled by their 
 spiritual guides, to contend against — a m^j )rity which, 
 though differing in many things, and forever disputing 
 among themselves, nevertheless is alwaj'S ready to unite 
 again?t you, as a common enemy; and you see Catnolic and 
 ProtJStant hugging each other in sweet embrt«ce, as of late 
 in New ila.vtn, while maintaining the Bible, prayer, and 
 psalmody in the common schools. If fell the discordant re- 
 ligious sects could unite, they would paralyze your efforts, 
 lender the idea of a purely secular government infamous, 
 and make rel glon the parent and master of the state. The 
 pi in of our forefathers would be stamped out, and time 
 might restore tbat grand Christian invention, the lnqui?i- 
 tiui-. 
 
 Be sure, then, that you do nothing to unite and cons >li- 
 date forces so dacgerous to a free state. As yet you a-e not 
 lurioui ded by such intelligence as will forgive your slight- 
 en mii>tcke in rcascnirg, or error in morals. A bclitver can 
 do with impunity what will excite the utmoi^t horror if done 
 by a skeptic. As such of you as have no Redeemer may 
 not commit fraud nor forgery, nor rob a bank, nor poison, 
 nor commit adultery with impunity, so you cannot commit 
 
THE LIBERTY OP PRI!JTI>r<*. 17 
 
 a mistake, even in respect of the liberty of unlicensed print- 
 ing, without casing d )wn en your lieada and on your cau-e 
 Ibe loudest denur ci itioas of the ''unco guid." ** A!i I h- !" 
 would Sfiy those w^io pardon the olf jQ8e3 of the godly, " it 
 is just as we expected. These Inlidels oppose cur holy 
 religion from no other mo'ive than lo gel lid of the moral 
 ^e^traiuts which it imposes ; for you see that wh«-re two or 
 threa of them are gathered together, they incontinently be- 
 tnUe themseivea to leading and circulaiinir lUe 'Fniiis of 
 Philosophy ' and ' Cup-d*8 Yokes.'" And all the congreg.i- 
 tioa would lilt up their pious voices, and (xclaim in 'he 
 language of the immortal Widow Bedott, " O E der S:iilfl:s, 
 how true thit is ! " 
 
 I entreat you, therefore, to be wise ; and being in fact the 
 true friends of moraUty av.d enlightened freedom, that you 
 take no such position on the subject of the freedom of the 
 press as will enable even a Jesuit to argue that you are Ahe 
 friends of Tcentiousness. 
 
 Above all thin^p, reverence the family as founded in 
 Kature, and tolerate nothinc which can corrupt the morals 
 of youth. All power, even the moit salutary, is capible of 
 being abused ; but an argument based on its abuses cannot 
 overthrow the power itself, if otherwise, no government 
 could stand. Let imperfect liws hd amended ; let unjust 
 onfs be abolished ; h-t abuses in administratioa becorr.ced; 
 and when government appoints tocfliceone who, l.ke SUan, 
 becomes 
 
 " The tempter ere the accuser of mankind." 
 a spy whose moral qualities fall below the requirements of 
 even that mean t ffice, let Jiim, but not the government, be 
 abolished. 
 
 Judge Hurlbut then read the following draft of a United J 
 Slates fctatuie on this subj-ct : 
 
 A LAW TO PREVENT THE FORWAKDTNG AND DTSTFIBUTION 
 OP OBSCENE LITERATUKE BY THE MAILS. 
 
 Sect. I. He it enacted, dc. 
 
 That there shall not be forwarded by the mails, 
 nor distributed by any dc-pu'y post-master, any 
 obscene print, picture, drawing, or printed com- 
 position, manifestly designed, or mainly tending, 
 to corrupt the morals of youth. 
 
i^l8 THE LIBERTY OF PRINTING. 
 
 Sect. II. If any person fhall deliver at any post-cfflce, 
 •with intent to bav forwarded, or distributed, any- 
 obscene print, picture, drawing, or printed com- 
 position, mentioned in the pieceding section, he 
 shall be fiued for the first offense, not fxcteding 
 dollars, and for the second or any subse- 
 quent cflense shall be imprisoned not exceeding 
 
 '• months. 
 
 Prov dedf Jiowe'ver, that no printed book, argu- 
 ment, esiay, treatise, or disquisition, put forth in 
 sincerity and good faith, and in which no obscene 
 •words, phrases, or pictures shall be employed, 
 although its doctrines or sentiments, if carried in- 
 to practice, would have a bad influence on society 
 or government, shall be deemed obscene •within 
 the meaning of this law. 
 
 REPLY BY THE EDITOR OF THE 
 TRUTH SEEKER. 
 
 "We are sure our readers will be glad that •we bav repro- 
 duced from The Index {he Uon. E. P. Hurlbut's able address 
 upon this subject, given on the second and third pages of 
 this issue. As an argument in favor of freedom of speech 
 and freedom of the press it is sound and is on the side of 
 American liberty. But inasmuch as it is regarded as the 
 ablest argument that has been produced in favor of retain- 
 ing the Comstock postal laws upon the statute books, and as 
 — aside from the slanderous charges and reiterations that 
 those in favor of the repeal of those laws are vile abettors of 
 immorality and indecency — it is about the only argument 
 that has been advanced by the *' high moral " party, it is to be 
 regretted that it is not clear on the point as to where the 
 United States obtains the anthority to take cognizance of 
 the morality and rpinions of the citizens of the various 
 states. Here is where the Judge's paper fails to impart the 
 information which thousands are so anxious to obtain, and 
 very many will be sorry that he passed over this vital point 
 60 easily. And from this very fact we perceive the weak- 
 ness of the position that such marplots as Anthony Com- 
 stcck hav any rights under the General Government to im- 
 pose upon the freedom of speech, the freedom of the press, 
 
 J 
 
REPLY. 19 
 
 and the freedom of the mails. All who are desirous to 
 learn how the United States Government obtains the right to 
 inquire into the opinions and moral sentiments of the peo- 
 ple of this couctry, and to employ its courts to convict and 
 punish them therefor, will be disappointed in Judge Huil- 
 but's addiess. 
 
 So far as he quotes ihat eminent jurist, Edward Living- 
 ston, in Iramicg the ciiminal code of Loui&iaca, it is all 
 right. Ever}' Liberal in the country will admit that Llvirg- 
 Bton was correct in his definition of obscenity, and that the 
 penalties under the state law which he named were just and 
 reasonable. It is under state laws that obscenity is a crime 
 and should be punished. But the judge quotes nothing from 
 Livingston or any oiher jurist in favor of the General Gov- 
 ernment's taking cognizance of obscenity or punishing it. 
 Here is just the point of difference between the " high moral " 
 party and those they characterize as low, vile, and indecent — 
 the one holding that the General GovernmcLt has the right 
 to inquire who is obscene, and to punish tbem with severity, 
 while the other insists that the General Goverment has noth- 
 ing to do with it, but that it belongs exclusively to the states 
 as Livingston proposed. As this is the groued upon which 
 the Liberals of the country are divided, and as it was upon 
 this point that the National Liberal League disagiecd, we 
 can but be sorry that the Judge had so litile to say about it. 
 He did not quote any jurist or any authority whatever m 
 favor of the General Government's taking the obscenity 
 business from the hands of the states, ^v here it justly be- 
 longs. The Judge hits the matter squarely on the head 
 when he says : '* The states and not the Federal Government 
 hav the power to punish abuses." This is emphatically 
 the doctrine of the hated Repealers, and if the holding of it 
 makes them amenable to the charge of immorality, vileness, 
 and indecency it ought to apply to the Judge as well. If it 
 is indecent for them to deny the powers of the Federal Gov- 
 ernment in cases of freedom and censoifchip, the Judge is 
 also indecent. 
 
 The Judge certainly does not make a strong argument 
 when he undertakes to show that the Federal Government 
 
 ; possesses the power of inquisitorial jurisdiction over the 
 moral quality of the mails. He very correctly states that 
 
 ijthe power conferred upon Congress by the Constitution to 
 
20 REPLY. 
 
 est^iMisli postcfilces and post-read-", confers rho the implied 
 pooifr tojunihli robbery and other rflcnses against tbo mails 
 w h'f h liin'/cr ani obstruct the poiti;! servi( e, which p^vver is 
 strictly ]f;r posial furpofe?. lie distinctly srys of the Gen- 
 c lU Gt vernmt'Dt that " wh( n i*: pucisbes a robbery, or ( ther 
 (ff^n f figaicst the mailp, it is not for a general correction of 
 the I ubl c morals, or of enforcirg any of the T n Com- 
 n .-.ncmvLt-, bnt to enable it to succeed in safely delivering 
 th-t moils." Bat this is i o a'^gument in favor of iiquiiing 
 into the epiniors (r morals cf tho:c who deposit metier in 
 the mails, and there is no sort of ani.1 >gy between the two 
 cases. The first is to facilitate the transmission of the 
 mails by removing cbstiuc'ions, while the o'her throws 
 olstmclions in iho wsy of fuch transmission by holding the 
 mnil nLaittr un?il it is examined and then throwing it out if 
 ff und to be of an immoral characrer, or what a fallible or 
 bgoted man would consider immoral. PanisLing mail 
 rcb^ers bears no similaiity to questioning the opinions and 
 morals ( f these using tht mai's How the mail robber* giv 
 the Government the power to be a moral itquisitor we fail 
 to I ee. 
 
 The Judge seems to favor a somewhat moderate methcd 
 of procedure, wlien he says: " The law should ^flBx such a 
 penalty as wclI 1 be SLfficient to deter people from mailing 
 obfcece pull cation^', and no more; for the ol j ct is not to 
 m^ke a mcnl cede, nor a penal code, nor enlorce a creed, 
 nor build up a catechism, but simply to protect the Gov- 
 ernment in the fit and proper discharge of its function as 
 mail carrier." Bat why the Government, in order to pro- 
 tect itself in the capacity of mail carrier, should find it 
 necessary to ex-imine into the moral character of the mail 
 matter intrusted to it is not made clear. 
 
 But further on, the Judge makes the proposition for a sys- 
 tem of censcrship and espionage which to us seems the 
 most monstrous and most destructive of the freedom of the 
 press and of personal r'ghts cf anything that h^s been yet 
 proposed. lie says: "The only course which occurs 
 to my mind, from what reflection 1 hav been able to 
 bestow on the s=ul j^ct, would be to commil the search to the 
 eevtral deputy postmasters, who shall apply to a United 
 States Commissioner or Judge for a warrant, and under that 
 to seize the suspected prints and carry them before the offl- 
 
 ] 
 
REPLY. 21 
 
 cer issuiDg the warrant, who should determine on reading 
 or infpeclion wliether obscpne a-'d tendicg to corrupt the 
 morals of youth or not " !N .»w is that a pr«clicab!e process 
 Jor a Judge to propoee ? 11 w are the po-traa'^Jeri to sajcll 
 out • b c< DC mn)l mj.t er except they open it and cximine it, 
 and, P^ul Piy lik*^, look over wbat the people i-tnd out, ? Ic 
 could only be Oone by cstablishiDg a fy>tem of espioniige 
 the most repugnant ever known in the world 1 Atid then 
 whon the deputies or clerks think theyhw found some- 
 thing that is not quite conect or that m'ght tend to corrupt 
 the mortilj of youih, they must go to a commissioner or 
 jji^ge for a warrant, when the f«)ispected matter must be 
 taken before taid conmissioner or judge, who must read it 
 over acd src whether it leally is improper to be sent for- 
 ward, or wleiher it must be detainfd and Ihe mailer pun- 
 ished by a suit in the courts of the United Slates, and this 
 Judge llurlbu:. calls facilitating the mail service, and advo- 
 c.tes it upon (be giounds that mail robbers are punishtd ! 
 This) is reprej-eultd as a powerful and uuansweiab e ar<ju- 
 ment in favor of the Comstock postal Uws, to oppose which 
 i voo be dcDounced by the immaculate "reformers," as vile 
 and obscene. 
 
 If the post < ffice in th-s city be taken as one Piost reces- 
 eary to be insptctcd and sciuliLized for indecent matier, 
 where at least a hundred tons of mail mater leave d>ii y, a 
 full reuinuent ol" deputies or inquisitors would be rtqtiired 
 to ferret out the ima>oral matter that might be mailed ; and 
 if 5-uch quar-tities are constanily being seoJ. to f chooU a', d 
 fcenninaries as Comsiock and Abbot assure us are beio;; sent, 
 it would require a great number of commissioners or j idges 
 to issue wai rants and bring to justice the vde (fftnders. It 
 wonl'i make such an inquisition of the general po&t-cfQce 
 and United .S ates courts a3 would put Dominic an<l Tor- 
 qu<.'mad4to shsme. Ii cannot be believed that the Ameri- 
 can people are yet ready for a censorship of this kind, 
 and it can hardly be believed that the intelligent Libetal«s of 
 the country are prepired to accept a sys'em of espionage of 
 that soit, or that it is netd ul to uphold such a rule in 
 Older not to he denominated F.eelovers, defenders cf ob- 
 scenity, etc. Far sooner would we indorse what the Judge 
 utters when he says: "It is better that obscene literature 
 should prevail for a season than that any man, however 
 
22 REPLY. 
 
 humble, however depraved, should be deprived of his legal 
 right", without due process and the enlightened judgment 
 of the law." That sounds far better than proposing the 
 odious system of inquisition we hav briefly considered. 
 
 He states a potent truth when he says : '* A believer -can 
 do with impunity what will excite the utmost horror if done 
 by a skep'ic. As such of you as hav no Redeemer may 
 not commit fraud or forgery, nor rob a bank, nor poi- 
 son, nor commit adultery with impunity, so you cannot 
 commit a mistake, even in respect of unlicensed printing, 
 without calling down on your heads and on your cause the 
 loudest denunciations of the 'uncoguid.'" This is partic- 
 ularly true, but it seems a very indifferent argument to con- 
 vince Liberals why they should advocate throwing away 
 the guarantees of the Constitution, which is the only pro- 
 tection we hav for the liberties of the people, and advocat- 
 ing a censorship and an inimical tribunal which will judge 
 skeptics and Freethinkers far more severely than believers 
 and favored ones and pronounce them guilty of sending 
 obscene matter when in others it would not be noticed. If 
 that is a good reason why unbelievers should shout them- 
 selves hoarse in favor of Comstockism we fail to see it. 
 
 Hither than to advocate this tyrannous and unfriendly 
 rule, we insist it would be far better to punish obscenity by 
 such state laws as Edward Livingston devised for Louisiana 
 and fcimilar to those which every state has in its criminal 
 code. The state laws are amply sufficient for almost all cases 
 of obscenity, aip*-4t is certainly better to Jiv them a fair 
 trial before making a detective spy system of the post-office 
 department. The aphorism which the Judge quotes from 
 Blackstone is worthy of repetition. "The liberty of the 
 press is indeed essential to the nature of a free state. . . . 
 Every freeman has an undoubted right to lay what senti- 
 ment he pleases before the public ; to forbid this is to de- 
 stroy tbe freedom of the press." In the same connection 
 we will also quote a worthy sentiment from Chas. A. Dana: 
 " Liberty cannot be overthrown in this countiy by direct 
 attacks. The only dunger is that it may be insidiously un- 
 dermined. " It is in yielding assent to the plausible doctrines 
 advanced by Judge Hurlbut, and more urgently demanded 
 by Anthony Comstock and Francis E. Abbot, that Liberty's 
 greatest danger lies. 
 
MB. WAKEMAN's reply TO JUDGE HURLBUT. 23 
 
 THE CAMPAIGN AGAIKST IJWCOXSTITU- 
 
 TIO\AI. PO§TAL, LAIVS A^O ESPIOIV- 
 
 AGE OVER THE IHIAILIB). 
 
 a reply to some parts of the address of hon. 
 e. p. hurlbut of albany (formerly justice of 
 the supreme court of the state of new 
 York) on "the liberty of printing," deliv- 
 ered BY HIM BEFORE THE SECOND ANNUAL CON- 
 GRESS OF THE NATIONAL LIBERAL LEAGUE, HELD 
 AT SYRACUSE, OCT. 26TH AND 27tH, 1878. 
 
 To the Editor of tJie Index : "Wit and age com- 
 bined are so pleasant tfiat it is an unpleasant duty to 
 question their gifts. In this view I have some sym- 
 pathy with the minority whose ^^ Jillibustering " pre- 
 vented me from replying to Judge Hurlbut's address 
 on the day it was delivered. Since then a similar 
 feeling of reluctance to appear publicly in opposi- 
 tion to our venerable friend, added to my repug- 
 gance to the whole subject, has even given a hue 
 of pleasure to the engagements that have kept my 
 pen from paper. Indeed, if you had not put out 
 that address in pamphlet form as ^^ proving unan- 
 swerably the constitutional right of Congress to pro- 
 hibit the circulation of obscene literature through 
 the mails " — a claim the Judge never made for it — I 
 should have left it to the second thought of the read- 
 ers to furnish the answers that seemed to the major- 
 ity of those who heard it itjady enough, for its effect 
 <7a8 to largely increase the vote of that majority. 
 
*?4 MR. 
 
 But fortunately the dissent of those who favored 
 the repeal of espionage was largely balanced by 
 their delight at the first half of the address, which 
 was really in favor of ^^ liberty of printing^'' and 
 which seemed to them a substantial answer to the 
 latter half of the address against it. In clear, sen- 
 tentious utterances the Judge echoed the feelings of 
 all Liberals, and I hope all Americans, as to the price- 
 less value of the liberty of printing, includii g, of 
 course, the circulation of printed matter. To that 
 he rightly attributes " the downfall of ignorant 
 authority, the abolition of slavery, the general prog- 
 ress of the world," and adds these memorable words : 
 *'' Without the liberty of printing a democratic 
 republic cannot exist ; a plea for the former is a 
 plea for its lifeJ^ 
 
 These are our common premises. Do they lead 
 to his conclusion, or to mine ? Do they lead to an 
 espio7iage over the mails or to their inviolability 
 under the Constitution ? 
 
 At the outset, let every intelligent reader be ad- 
 monished that though this may be a question of 
 constitutional law to some extent, he is not to give 
 up his right of private judgment and submit to law- 
 yers or courts. The Constitution was made for the 
 whole people to understand, and they are to deter- 
 mine what it means. There is always an appeal to 
 them just as in Parliamentary law there is always a 
 final appeal to the House. Intricate questions of 
 real estate, commercial law, or private rights are 
 generally left to a Court's control. But questions 
 of public liberty and of government, although al- 
 ways in this country questions of constitutional 
 construction, are determined by the people. They 
 
TO JUDGE HURLBUT. 25 
 
 must, therefore, take care to understand the funda- 
 mental law of the land, and never commit its mean- 
 ing to any learned profession, departments, or 
 Courts. For the lawyers, like the Judge and myself, 
 will disagree ; the departments, as in the case of 
 these postal laws, will seek to use " ulterior powers ;" 
 the Courts, and especially the Supreme Court of the 
 United States, will too often be found on the wrong 
 side of any question of liberty. This was abund- 
 antly shown by the instances cited in my Faneuil 
 Hall speech. In every case there cited the people 
 reversed the courts by repealing the laws. By the 
 quiet and efficient use of vote, voice, and influence 
 the people cnn jq that way always protect themselves 
 and preserve thei/ liberty and the Constitution. 
 The position now is very similar to what it was 
 when the Dred Scolt decision nationalizing slavery 
 was rendered. It did not take liberty-loving citi- 
 zens then very long to discover their true path out 
 of the mazy tangles of law arguments. They knew 
 by instinct that the Federal Government was never 
 intended or formed to protect slavery, and as soon 
 as their attention can now be clearly called to it, 
 they will know that it was not intended nor formed 
 to be an Inquisition over the mails, the press, and 
 the people, by its post-office. 
 
 Another matter preliminary and necessary, is that 
 the reader should become familiar with the great 
 and e')nstilutional distinction between the powers 
 and functions of the state governments and the 
 Federal or National Government, especially in regard 
 to criminal jurisdiction. To this end, I will suppose 
 the reader to have read my Faneuil Hall speech and 
 Answer to Index criticisms on the same. As the 
 
26 ME. WAKEMAN^S REPLY 
 
 address of Judge Hurlbut was to some extent in- 
 tended as an answer to those publications, a knowl- 
 edge of them is certainly necessary to the under- 
 standing of this discussion. 
 
 We come now to the main question, and in the 
 end we think it will be found to amount to this : 
 
 Shall the United States or General Government 
 acquire a oiew and unlimited criminal jurisdiction 
 over the lives, liberty, and property of the people 
 by means of a discriminatien in regard to the mean- 
 ing and sentiments of postal matter, not required 
 for postal purposes, and enforce it by an espionage 
 and penalties not required for postal protection ? 
 
 The Judge may not intend this, but it will be found 
 that the construction he contends for implies it, and 
 makes it the real question. 
 
 We say this is a new claim. For one hundred 
 years the simple grant of postal powers in the Con- 
 stitution, to wit, "To establish post-offices and 
 post-roads," was held in law and practice to mean 
 that the United States, through their Congress, had 
 power to run and regulate " the entire postal system 
 of the country " for postal purposes / but not for 
 moral, religious, political, or any ulterior purposes. 
 
 We say also, that this is a claim for unlimited 
 power. There is no limit to the use of the prec- 
 edent it establishes. These postal laws began in 
 3 872 by excluding all lottery matter from the mails, 
 then in 1873 matter that might be deemed o5sce7/-e, 
 immoral, etc., was excluded, and this kind of legis- 
 lation has been extended in 1876, as will appear from 
 all the laws on the subject hereto annexed. This 
 legislation is intended for no postal purposes, but aa 
 expressly stated by the Supreme Court in the Jacl 
 
TO JUDGE HURLBUT. 27 
 
 son case, to suppress " matter deemed injurious to 
 public morals," and " institutions which are supposed 
 to have a demoralizing influence upon the people." 
 If such " matter " and " institutions" can be consti- 
 tutionally discriminated against in the mails, so can 
 any other matter or institutions which the whim of a 
 Congressional majority may wish to destroy. Similar 
 laws will, when the necessity is deemed sufliciently 
 pressing, certainly be enacted against blasphemous, 
 irreligious, revolutionary, socialistic, riotous, incendi- 
 ary, or insurrectionary, etc., etc., matter and institu- 
 tions. If this power is once granted, the majority 
 are in duty bound " to protect the people " in every 
 way by it. The post-office is a necessity of every 
 civilized person, and the minority are at their mercy. 
 The Constitution, as the bulwark of the liberties of 
 the states and the people, will be practically swept 
 away. 
 
 To argue for this new unlimited power before a 
 meeting of American citizens, and above all. Liber- 
 als, ought to have been like arguing for the Dred 
 Scott decision in a Republican Convention, and it 
 was no wonder I had to thank the Judge for increas- 
 ing the majority for " repeal." 
 
 The Judge thinks that Congress has this power 
 under the Constitution, and that it may be executed 
 with safety to liberty. 
 
 I think that the Constitution grants no such power, 
 and that it is a usurpation most dangerous to liberty. 
 We must then, first in order, look at this question of 
 alleged constitutional power, and then consider its 
 dangerous consequences to liberty. The Judge has 
 chosen to consider the consequences first. This is 
 often done where the conclusion is felt rather to jus- 
 
28 MR. wakeman's reply 
 
 tify th^ premises instead of following from them, 
 and should always lead us to suspect their soundness. 
 But many are willing to help row the boat if they 
 believe it carries their treasure. To put the part of 
 the address relating to this supposed United States 
 power logically, we must read its paragraphs in their 
 inverted order, and begin with his proofs of the exist- 
 ence of this power near the middle of the second 
 half of his address. We will review his reasons in 
 that inverse order and close with his attempt to har- 
 monize this supposed power with liberty and the 
 freedom of the press. 
 
 I. The first ground assigned for this power is evi- 
 dently his main reliance, and may be called the 
 argument of lost sovereignty. 
 
 It is well known that this power of espionage has 
 been used in all despotic and monarchical govern- 
 ments, and even to some extent in England, whence 
 our law and government were derived. It is conceded 
 that the government in those countries does inspect 
 the mails and use them as a means for the detection of 
 criminals. This is now done constantly in Russia, as 
 I have good reason to know from letters lately re- 
 ceived from there. Thus, throughout Europe the 
 post-offices are regular traps to catch political and 
 social, as well as . moral and criminal, offenders. 
 Thus the real purpose of the post-office has been 
 prostituted for purposes of oppression and extortion, 
 or the banishment of every opponent of tyranny and 
 despotism. 
 
 Now, says the Judge, this attribute of sovereignty, 
 having once belonged to our people, as it did to the 
 Englis?! people and their government, must now be 
 lodged either in our state or national governments 1 
 
TO JUDGE nURLBUT. 29 
 
 for it cannot have been lost. But the states have it 
 not, for they can do nothing inside the post-offices; 
 therefore the General Government must have it ! 
 
 The answers to this are plain enough: 
 
 (1.) It is an amusing instance of what logicians 
 call the fallacy of " proving too much," which as we 
 shall find is a constant attendant upon the Judge 
 throughout his treatment of this question of power. 
 If this " item of sovereignty " has been inherited or 
 possessed by our state or national governments, so 
 have all the other abuses or "items of sovereignty,'* 
 to which we have referred, and the state and na- 
 tional governments are very derelict in not exercis- 
 ing them for "the good of the people." Nor is 
 this " item " limited to obscenity, but it must in- 
 clude all other purposes for which the English 
 Government has used it. 
 
 (2.) The next and conclusive answer is the fact 
 that our people, out of their unlimited and absolute 
 sovereignty, have chosen to establish a limited Fed- 
 eral Government, and have also limited the sover- 
 eignty of the state governments by constitutions, 
 and in so doing, have determined not to use thou- 
 sands of "items of sovereignty" that they might 
 have used, and which other " undivided sovereign- 
 ties " do use. 
 
 They might have formed an empire like Russia, 
 or a limited monarchy like England, and in such 
 cases would have exercised all of the "items of 
 sovereignty " suitable to those Governments. But 
 in forming a Federal Government " to secure the 
 blessings of liberty to ourselves and our posterity," 
 they laid aside many " items of sovereignty" exercised 
 by other peoples and governments, but deemed by 
 
30 MR. WAKEMAN's EEPLY 
 
 them " dangerous to public and private liberty and 
 utterly inconsistent with the genius of free institu- 
 tions," as the Liberal League stated it at Philadel- 
 phia in 1876. The people may, out of their absolute 
 sovereignty amend or lay aside our present Consti- 
 tution and return to the forms and " items of sover- 
 eignty," called a despotism, but until they do this 
 such possible items of sovereignty not granted by 
 the Constitution to the General Government remain 
 in the states and people, not lost at all, but in disuse 
 until they choose to change our present constitutions, 
 national and state. 
 
 (3.) That this inspection and espionage of postal 
 matter was one of those " items of sovereignty " our 
 republican fathers were expressly anxious to get 
 rid of, is clear enough from contemporaneous his- 
 tory ; from their declaration that the postal power 
 was to be " harmless in every j^oint of vieicf^ and, 
 also, from the express and limited grant "to establish 
 post-offices and post-roads," icith no general power 
 over them othervnse^ much less, power to use them 
 for governmental or any ulterior powers. A little 
 attention, to this latter point may be needed. The 
 grant of postal power is for ia postal purpose as 
 plai% as words can make it. The words do not 
 intrust the general power to Congress to make gen- 
 eral laws on the subject, as Parliament might do, 
 or as Congress might do in regard to foreign com- 
 merce, coinage, weights and measures, patents, bank- 
 ruptcy, copyrights, piiacies, or offenses against the 
 laws of nations. Over all these subjects Congress 
 has jurisdiction by a general grant of power, but the 
 postal power is simply to " estahlishy'' i.e., to do a 
 
TO JUDGE HURLBUT. 31 
 
 specific thing for its own sake and purpose, and no 
 more ! 
 
 This special limitation was necessary to rendf 
 the power " harmless,'''^ and free from usurped crim- 
 inal jurisdiction and espionage. The Britis^h Gov- 
 ernment had intercepted and broken open letters 
 and papers for every reason that seemed to them 
 good. The inviolability of the mails was an instinct 
 of republicanism, while espionage is the necessity of 
 all spiritual and political despotisms. Our fathers 
 were expressly careful not to grant this latter power, 
 so liable to abuse, and so completely at war with 
 the sentiments of the American people. They de- 
 termined to bury this " item " with its brother items 
 of tyranny, beyond the power of resurrection, and so 
 they gave a special power that had been used under 
 the confederacy (without thought of espionage) 
 and merely added " and post-roads " to the former 
 power of the confederacy " to establish post- 
 offices." The post-office vas thereby for the first 
 time emancipated, and, in America, its contents were 
 no longer to be under the espionage, interception, 
 and violation, as if in a detective bureau, of the gov- 
 ernment. Our Fathers, when they snatched the scep- 
 ter from tyrants, took with it that " item of sover- 
 eignty,'' post-office espionage. It is clear that this 
 power was not granted by the United States Consti- 
 tution in wurds or intention, and that to imply it 
 as an " item of sovereignty " would bring on us all the 
 " items " we had a revolution to get rid of. 
 
 II. The next ground the Judge takes is stated in 
 these words : *' For it seems too clear for debate 
 that a power to choose implies also the power to 
 reject," and to enforce the rejection by penalties. 
 
82 MR. wakeman's reply 
 
 This is nothing more than the old argument of Mr. 
 Justice Field, and which v/as completely answered 
 in my Faneuil Hall speech. Instead of being too 
 clear for debate, it is so manifest a begging of the 
 question that it is ridiculous to argue it seriously. 
 The power to exclude has ever been for postal pur- 
 poses, and this fact entirely negatives the notion 
 that exclusion for any other purpose is lawful. 
 To assume that there is a general right of exclusion 
 because there is a right to do it for postal purposes 
 is simply absurd, and assumes what is to be proved. 
 
 But the Judge's humor comes to the relief of his 
 logic. He represents " Uncle Samuel " as aj^ersonal 
 mail-carrier, who, " having said what he would 
 carry and w^hat he would not," puts " a head " on 
 any one who puts stuff he think's " dirty " in 
 meaning in his mail-bag. 
 
 But Uncle Samuel, by permanent and unchange- 
 able contract to the exclusion of all others, went 
 into the mail-carrying business simply as such 
 and for his employers in common. He worked 
 a hundred years without regard to the sentiments 
 of the inclosed matter his employers sent. Now 
 certain fanatics tell him there may be some 
 lottery matter in his bags, or papers "dirty" in 
 meaning. He thereupon begins to dictate to his 
 employers as to what he will take, and instead of 
 delivering his letters and papers he sits down by the 
 road and tries, in a blundering way, (for he has more 
 good nature than critical judgment,) to rpell out 
 the lottery matter and dirty papers and destroy 
 them, and then to find out and punish the senders ! 
 Unless his employers are fools they will put "a 
 head " on Uncle Samuel that will enable him to 
 
TO JUDGE HURLBUT. 33 
 
 attend to his business and fulfil his contract of mail- 
 carrying better than this. A private mail-carrier 
 would soon find his head broken after such antics.- 
 
 But the Judge concedes that, after all, Uncle 
 Samuel has no right to destroy this dirty matter or 
 reject it on moral grounds. He says that the penal- 
 ties to enforce this right of rejection can only be 
 " not as against moral offenses, but offenses against 
 the proper regulations of the mail service. I con- 
 cede that any step beyond this would be pure usur- 
 pation and tyranny on the part of the Federal Gov- 
 ernment." This is an inevitable, but a fatal, admis- 
 sion. 
 
 It is only as against postal offenses, after all, that 
 the Judge finds any right to reject any printed 
 matter or to impose penalties for sending it. He 
 is thus compelled to give up the right loholly or to 
 assert that moral purposes are postal purposes. 
 
 HI. The Judge therefore undertakes to show that 
 moral purposes are, or may, or ought to be, in some 
 way or to some extent, postal purposes. In other 
 words, that Uncle Samuel, simply as mail-carrier, 
 and nothing more, has a right, xmder the Constitu- 
 tion, to search for and throw out of the mails, and 
 to punish those who send, matter he deems obscene, 
 immoral, or criminal. 
 
 That moral purposes are not postal purposes was 
 pointed out at length in my Faneuil Hall speech and 
 answer to Index criticisms. It was shown that all 
 attempts to exclude matter by inspection of its 
 meaning, and to punish crimes by espionage and 
 decoy, could only detract from the use, income, and 
 " conveniency " of the postal service as such ; and 
 that no justification was possible for such practices 
 
34 MR. WAKEMAlf's REPLY 
 
 unless the post-office could be used for the " ulterior 
 purpose " of supervising the morals of the people 
 and detecting criminals, purposes, in the words of 
 Daniel Webster, " expressly unconstitutional." Now 
 what are these offenses ? and where is the right to 
 impose any penalty for them found ? It is a well- 
 known rule of law that no penalty can be imposed 
 by implication, and that there can be no penalty 
 created without express authority. 
 
 The Judge answers none of these arguments — as, 
 indeed, who can ? — but he endeavors to push them 
 out of sight by suggesting new aspects, which the 
 slightest examination shows to be illusory and 
 guilty of including and " proving too much." 
 
 1. The first of these suggestions is, that unless 
 the mail-carrier looks over and throws out, and pun- 
 ishes the sender of, bad and criminal postal matter, 
 he is particeps criminis in its consequences. 
 
 The answer is that the mail-carrier does not under- 
 take to be responsible for the character of the mail 
 matter, and without assuming a responsibility he can 
 in no wise be guilty of a wrong. It is only his con- 
 tract and duty to carry the mails, not to supervise 
 their contents. He has no knowledge or intention 
 that makes him share the criminal character or pur- 
 pose of the matter enclosed any more than the cap- 
 tain of a vessel who carries it. 
 
 The argument to the contrary proves too much. 
 If the duty of supervision exists, it must be thor- 
 oughly performed, or the moral responsibility will 
 certainly attach. Letters and matter of all kinds 
 must be then thoroughly inspected. It will never 
 do to let rascals get ahead of the Paternal Govern- 
 ment by a little mucilage, sealing-wax, or string. 
 
TO JUDGE HURLBTTT. 35 
 
 Everything must come open, so that the people may 
 be as thoroughly protected from any " improper" and 
 impious influences as they are in Russia, or the 
 government will certainly be morally responsible 
 and particeps criminis. 
 
 2. The Judge next argues that obscene matter may 
 be excluded for this reason, that " By stufting the 
 mails with obscene matter, the [postal] service is 
 made to exceed arid overdo its proper office ; to be 
 harmful and a nuisance, rather than a benefit, to the 
 public ; and it seems hardly to be straining a point 
 to hold that, by the delegation of power to Con- 
 gress to make all laws necessary and proper to carry 
 into effect the powers conferred in reference to the 
 mails, authority is derived to prevent as well the 
 mischiefs of carrying obscene literature as those 
 arising from mail robbery, so that the service should 
 be protected as well from the dangers of excessive, 
 as those of inadequate performance, and be not only 
 useful, but harmless, at least to such extent as 
 not to be accessory to crime. It is a mode, in either 
 case, of protecting its limited sovereignty and dis- 
 charging its office with integrity and decent 
 dignity." 
 
 I quote the Judge's words in full on this point 
 because they fill me with wonder and astonishment, 
 as things mysterious are apt to do ; and because the A 
 Judge, at Syracuse, seemed "to set special store" 
 by this argument as one that might hold; and be- 
 cause it seems to me that the non-lucidity of the 
 style is a picture of the same kind of thought. The 
 Judge, usually so admirably clear and concise in his 
 expression, would never have left us this sentence 
 unless he had been severely tangled up by a notion 
 
80 ME. WAKEMAW'S EEPLT* 
 
 that would not stand simple and clear expression 
 without vanishing. 
 
 When analyzed, this argument of excessive per- 
 formancCy (1) begs the question, (2) confounds things 
 that have no relation to each other, and (3) " proves 
 too much." 
 
 The reasoning is, that because the postal service 
 has constitutional power to protect itself from inad- 
 equate performance of its office, caused, for instance, 
 by mail-robbery, therefore it must also have power 
 to protect itself from the excessive performance of 
 its service, which the carrying of obscene literature 
 would be. >^ 
 
 (1.) But whether it would be an excessive per- 
 formance of the postal service to carry what may be 
 offered, not detrimental to itself, is a question that 
 takes for granted the whole issue. We do not see 
 how a postal duty can be excessively/ performed any 
 more than any other duty. It cannot be excessive 
 if the matter is constitutionally mailable, and that is 
 the very question. 
 
 (2.) But whether the performance would be ex- 
 cessive or not, can in no wise be proved, because the 
 postal service has the power to punish mail robbery, 
 which would be destructive to it. That is for a 
 plain, necessary postal purpose, to wit, to prevent 
 injury to itself. The bad effect that certain mailed 
 matter may have upon the people is certainly not a 
 similar postal injury, nor an injury to the people, 
 which the post-office ie responsible for, as it would 
 be if. it allowed its service to be destroyed by rob- 
 bery ; for 
 
 (o.) This argument, if allowed, like the former 
 one, proves too much. If the postal department is 
 
TO JUDGE HURLBTTT. 37 
 
 to regard the carrying of criminal or " improper " 
 matter as "an excessive perf ormp.nce " of its 
 duty, then it is in duty bound to see to it that it 
 carries no improper matter. It must protect itself 
 from all "excessive performance" by making the 
 national post-office a national sieve to cull out what 
 it may deem to be non-injurious to the people ; and 
 it must destroy the rest, with penalties to the senders. 
 
 The Judge can never escape the fatal assumption 
 that goes with every attempt to sustain any United 
 States postal law of this kind, that is, that it must 
 be executed by an espionage amounting to a censor- 
 ship of all mailed matter. For the power and right 
 claimed involves the moral duty of its use to protect 
 the people against everything that may be criminal, 
 immoral, or injurious. The new Inquisition has its 
 moral responsibility, which, if it assumes, it must 
 execute ; and what, to use his own words, may not be 
 " accessory to crbne^^? 
 
 (4.) The Judge next tries to show two further 
 grounds for supposing that there may be an " excess- 
 ive performance " of postal service, which the United 
 States should be protected against by these new 
 postal laws. These'are : 
 
 (1.) From the nature of the postal grant : Be- 
 cause the people and states, by the Common Law or 
 statutes, prohibited the circulation of certain matter, 
 therefore they could not have granted to the General 
 Government power to carry the same. 
 
 (2.) From comity : Because the laws and depart- 
 ments of the General Government were not designed 
 to defeat or play at " cross purposes " with the state 
 laws, and so to injure the people ; therefore what the 
 Common Law and states prohibited must have been 
 
88 MR. wakeman's reply 
 
 prohibited tc the General Government, and it must 
 
 protect its mails from such excessive performance in 
 carrying things the Common Law and states have 
 prohibited. 
 
 The answers to all this are simple and conclusive: 
 (1.) The people and states who made the Constitu- 
 tion never,m/ac^, made any such distinction. There is 
 no intimation that the post-office was to be used to 
 carry " lawful matter ;" and for a hundred years no 
 Buch pretense has been thought of. Besides, we 
 have shown, on the contrary, that the postal law is 
 in the same words as under the confederacy, in 
 which the General Government ran the post-offices 
 without any such distinction. It was left entirely 
 to the state laws to determine what matter should or 
 should not be circulated by mail or otherwise. If 
 this power of exclusion is a postal power, then it 
 belongs exclusively to the General Government, and 
 the states have, and have had, no right to punish for 
 mailing anything, which is absurd. 
 
 (2.) This division of postal power and service into 
 two kinds, excessive and 7ion- excessive, according to 
 state laws or the common law, would have been 
 ridiculously impracticable, and is so now. When- 
 ever any state or any number of states change their 
 laws about lotteries, or obscene literature, or libels, or 
 blasphemy, or any matter " accessory to crime," then 
 it becomes an " excessive service " for the mails to 
 carry such matter in those states. The United 
 States laws are to be limited by the state laws ; and 
 what is lawful in the state where the mail is made 
 up, must be lawful elsewhere and vice versa. But 
 how is it that these very Comstock postal laws prohibit 
 the mailing of lottery matter, which is perfectly inno- 
 
TO JUDGE HURLBUT. 39 
 
 cent at Common Law over the whole Union, including 
 Kentucky and Louisiana, where lotteries are legal and 
 the states often use them ? What becomes of the ex- 
 cessive service in such case? But how can we be sure 
 that every "deputy postmaster" will be accurately 
 acquainted with the annually changing laws of every 
 state on every topic? And if he is not, he will 
 certainly be rendering excessive mail service in some 
 of our forty states and territories, and the Govern- 
 ment will be particeps criminis and " accessory to 
 crime "! Need we say more ? 
 
 (3.) In the Senate debate of 1836 on incendiary liter- 
 ature, this " comity " question was presented by Mr. 
 Calhoun, not as involving an excessive postal per- 
 formance, for he never suggested anything so ridic- 
 ulous, but as a matter of Federal duty not to act at 
 cross 2nirposes with the states which, in his view, had 
 only made the General Government, and which was 
 therefore surely their ministrant. On this ground 
 he claimed that incendiary literature should be non- 
 mailable and non- deliverable on inspection by the 
 deputy postmaster in states where it was prohibited 
 by criminal laws. This was decidedly disallowed 
 by the Senate, as without ground in fact, as wholly 
 impracticable, and as involving the espioiiage of the 
 mails. 
 
 But the Judge seeks to discriminate between mail 
 matter that he wishes to repress and this anti-slavery 
 matter, which he says was always innocent and mail- 
 able because it was so at Common Law and in the 
 state where it originated. But this discrimination 
 will not hold a moment. If the state laws have 
 anything to do with the mails, " insurrectionary " 
 matter became illegal just as soon as the mail passed 
 
40 MB. 
 
 into a slave state, and should have been destroyed by 
 the deputy postmaster of that state, unless according 
 to the Judge's argument, the United States should 
 be vi^illing to be particeps criminis in the violation of 
 the laws of that state by an excessive use of the postal 
 power. How could there be a more flagrant in- 
 stance of " excessive power" than in thus violating 
 the comity of a state, and acting in direct cross pur- 
 poses to its policy, safety, and criminal laws ? 
 
 The common-law excuse mentioned by the Judge is 
 but another instance of the utter futility of his distinc- 
 tion, for these very Comstock postal laws began in 
 1872 by excluding all lottery matter from the mails. 
 There is certainly no common-law or postal reasons 
 for excluding lottery matter any more than " relig- 
 ious " or any other matter. In what possible sense 
 can the carrying of it be an " excessive postal ser- 
 vice " ? Lotteries were lawful at the Common Law, 
 and ip all of the states when the Constitution was 
 adopted, and so remain in several of them, and in 
 Kentucky and Louisiana they are specially legalized 
 and used by those states. The postal laws in ques- 
 tion declare all lottery matter non-mailable in all 
 of the states, whether legal in them or not, and 
 a penalty is created for doing an act legal under the 
 law of the place of the contract. In view of these 
 facts, it is evident the Judge's discriminations will 
 not cover and are worthless even as excuses for this 
 usurpation. 
 
 (4.) But the Judge seems to suppose that there must 
 be some special constitutional magic in the " Com- 
 raon LawP In the delivery of his address he stop- 
 ped to remind his audience that they heard "nothing 
 about the Common Law at Faneuil Hall," ag though 
 
TO JUDGE HUELBUT. 41 
 
 that had been designedly avoided. It was not 
 avoided, but was not mentioned because I supposed 
 that people who knew their waj'' to Faneuil Hall 
 knew that the United States have no Common Law 
 jurisdiction, and nothing to do with the punishment 
 of common law offenses. It seemed to me therefore 
 absurd to assume that any one would argue that 
 because an offense is one at Common Law the United 
 States could do indirectly what it had no power to 
 do directly, that is, to eroct the post-office into a 
 criminal tribunal to detect and punish common-law 
 offenses. No reasoning short of this can find any 
 common-law excuse for these postal laws, and the 
 proposition is too absurd to spend time upon. An 
 indirect usurpation is the most unjustifiable, as well 
 as the most dangerous possible. 
 
 But the Judge seems to infer that it is an " ex- 
 cessive service" for the postal department to be 
 engaged in doing acts that are against the Common 
 Law, and that carrying matter condemned by the 
 common-law is of this character. This is (1) sim- 
 ply a confusion of a public service with a private 
 crime, and (2) again, it "proves too raueh." 
 
 (L) The act of mailing anything, whether ob- 
 scene, blasphemous, or libelous, is not a common- 
 law offense, although the circidation of obscene, 
 blasphemous, and libelous matter is such an offense. 
 This circulation may be made by express, railroad, 
 boat, or mail, but no crime or offense attaches to the 
 means of the conveyance, circulation, or even ^9wW^'ca- 
 tion. It attaches only to the person or party who 
 has the criminal intention, L e., to the sender at one 
 end of the rDute, and to the receiver and distributor 
 at the other. It is only these persons who have had 
 
4ii MB. 
 
 guilty intent that can be properly punished for 
 any crime. The Common Law is ready for them 
 in every state of the Union, and is fully sufficient. 
 It only remains to those who would protect youth 
 and the public purity to see that it is enforced, as 
 we shall show when we come to that question. 
 
 But (2) the notion that the Common Law makes 
 the postal service excessive or unlawful in some way, 
 when possibly used as an instrument to aid in com- 
 mitting offenses, " proves too much " in three ways 
 at least. 
 
 It may, nay, must be, applied to all matter that 
 may be used for criminal purposes, especially blas- 
 phemous and libelous publications which are com- 
 mon-law offenses as much as the obscene. It cannot 
 morally or consistently be limited to the latter only, 
 for, 
 
 It makes the postal department morally liable 
 for the innocence from crime of all mailed matter as 
 far as the common law is concerned. If this liabil- 
 ity exists it is a terrible responsibility which the 
 National Government must exercise as thoroughly 
 as possible, or be guilty of all of the crimes that its 
 espionage might have prevented. 
 
 The " deputy postmasters " must be so edu- 
 cated in the large number of common-law offenses 
 that they can unerringly detect and confiscate all 
 matter committing or tending to commit such of- 
 fenses ! 
 
 Surely no rational reader will wish one to follow 
 further an argument fraught with such absurdities. 
 
 5. We are led by the foregoing to another point 
 which the Judge seems to think very terrible. If the 
 National Government does not exclude from the 
 
TO JUDGE HURLBUT. ^ 
 
 mails matter criminal at Common Law or by tb« 
 statute laws of the several states, then it becomes 
 not only particeps criminis, but actually makes 
 innocent^ matter which was criminal in its very 
 inception. And this it cannot do; therefore, the 
 matter remains criminal, and the National Govern- 
 ment, having such matter in its exclusive possCosion 
 and control, must destroy it, and punish the offender 
 who placed it there. 
 
 The answer is very simple : The sender is guilty, 
 and his matter criminal by virtue of the Common 
 Law, or the state laws, but when the matter passes 
 into the mails it passes from those laws into a power 
 that has no Common Law, or state law, or general 
 jurisdiction. It does not become innocent before the 
 laws that made it criminal, but it confers no addi- 
 tional jurisdiction on the General Government to pun- 
 ish for those crimes. The post-office has no moral 
 purpose or quality. It does not take a fee for carry- 
 ing obscene or blasphemous literature, but simply for 
 carrying so much mailable matter, without regard 
 to the sentiments of that matter. It renders nothing 
 innocent because it has no moral purpose or inten- 
 tion. It exists for the general " conveniency " of the 
 public, good, bad, and indifferent, and carries mat- 
 ter of the same quality. Suppose the Constitution 
 had granted to Congress the power " to establish 
 railroads between the states," would it have the 
 right to discriminate between the sentiments of 
 citizens as long as they were enclosed in decent 
 clothes, paid their fare, and behaved just as well as 
 other passengers ? Would it make any difference 
 whether the passenger was a republican or democrat 
 or independent? whether he carried the Bible or 
 
44 MR. wakeman's reply 
 
 "Cupid's Yokes" concealed on his person? Sup- 
 pose such a traveler should be a criminal at common 
 and state law, suspected by the conductor to be flee- 
 ing from justice, or going to commit a crime, would 
 it be the duty of the U. S. conductor to stop the 
 train, search that passenger, and put him off the 
 train, or arrest, or punish him ? Jf he did not, would 
 he, or the Goverment, be guilty, asparticeps criminis 
 of that crime, or of an "excessive performance" of 
 railroad service ? or of making the criminal passen- 
 ger innocent ? But this leads to the same list of ab- 
 surdities we have noted under the last point, and 
 certainly need not repeat again. 
 
 This concludes all the arguments the Judge has 
 put forth on the question of the power of the General 
 Government to enact espionage postal laws. May 
 we not say that they are all useful as illustrations of 
 the futility of the claim ? No ingenuity, however 
 great or original, can make twice two five. 
 
 lY. We now reach the practical application of 
 this power, assuming it to exist, to the freedom of 
 the press. 
 
 The Judge argues that this power of espionage 
 would be no abridgment of freedom of the press, 
 because such freedom at Common Law, as witness 
 Blackstone, means only freedom from previous cen- 
 sorship. We are reminded "that every freeman 
 has the undoubted right to lay what sentiments he 
 pleases before the public; to forbid this is to destroy 
 the freedom of the press." No further definition is 
 needed for this question in hand, but it should not 
 be granted that freedom of the press in America 
 does not mean more than freedom from previous 
 censorship, — freedom in fact from hundreds of 
 
Tc JUDGE HURLBFT. 45 
 
 grounds of prosecution after publication authorized 
 by the common and ecclesiastical laws of England. 
 There, the freedom is also limited by the irresponsi- 
 ble will of Parliament; Jiere, it is granted and to be 
 sustained under constitutions guaranteeing the lib- 
 erty of religious, political, moral, and even personal 
 discussion, subject only to liability before a common- 
 law jury for injury actually done thereby. 
 
 But there is no need of going beyond the above 
 quoted definition of Blackstone to show that the 
 power the Judge contends for is fatal to the freedom 
 of the press in the very sense that he uses the term. 
 Mr. Justice Field in his opinion on this subject in 
 Jackson's case has answered the Judge conclusively. 
 He says : *' 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 circulation is as essential to that freedom as liberty 
 of publishing ; indeed, icithout the circidation, the 
 publication icould be of little value.'''' 
 
 As we showed in the Faneuil Hall speech, Mr. 
 Justice Field drew exactly the wrong conclusion 
 from these premises, but they are perfectly sound 
 and dispose of the Judge's argument at once. The 
 freedom of the mails is but a part of the freedom 
 of publication, whic^ is the meaning of the words 
 "freedom of the press." Publication means unre- 
 stricted circulation. A partial limitation of that by 
 espionage, destruction of matter, etc., is a " prior 
 censorship" of the Press of the most certain and 
 effectual kind, and now more so than ever, when the 
 post-office is its indispensable instrument. Such 
 postal laws take away " the undoubted right every 
 
46 MR. wakeman's reply 
 
 freeman has to lay what sentiments he pleases before 
 the public^'' and to stand the consequences under the 
 laws of the stiates. For, as the Judge truly remarks, 
 " The states, and not the Federal Government, have 
 the jyoicer to punish abuses.''"' Plainly, the offender is 
 to answer before the common-law juries of the 
 states for his abuses. The Constitution forbids 
 Congress in any^way from "abridging freedom of 
 the press ;" it does not in any way authorize Con- 
 gress to punish abuses thereof. To protect, and not 
 to judge, limit, or destroy is the Federal office in this 
 matter. In view of this, how inconsistent is it to 
 say that the Federal Government may, constitution- 
 ally, make publication practically impossible by its 
 postal laws ! Such censorship is a prohibition which 
 prevents " the laying of sentiments before the pub- 
 lic," which, in Blackstone's definition, is expressly 
 " to destroy the freedom of the press." 
 
 The post-office is the life of the press ; when you 
 take away the freedom of the former, the latter falls 
 with it. Liberty of printing is nothing, unless the 
 printed matter can be freely circulated ; and, as the 
 Judge said at the outset, "without liberty of print- 
 ing a democratic republic cannot exist. A plea for 
 the former is a plea for its life." It is with deep regret 
 that I find the Judge closing his public life with a 
 plea which, it seems to me, the^e words condemn. 
 
 In England the incompatibility of the freedom of 
 the press with post-office espionage has been more 
 and more recognized in practice, and by laws re- 
 quired by popular sentiment. 
 
 In our country this whole espionage business was 
 sought to be rendered. impossible by the two most 
 important features of our government. 
 
TO JUDGE HURLBUT. 47 
 
 1. The separation of the state and Federal Gov- 
 ernments, and the committal of the post-offices to be 
 " establishecV^ by the latter only. 
 
 2. The separation of the ecclesiastical and spirit- 
 ual powers from the temporal governments, leaving 
 the former to instruct, advise, and persuade, and the 
 latter to act, judge, and punish. 
 
 (1.) We but echo the voice of the statesmen who 
 framed the Constitution, who said that the " inci- 
 dental" extension of Federal power and criminal 
 jurisdiction would be the grave of American liberty. 
 The laws in question are unmistakable instances of 
 such extension. Not only was there no grant of it 
 in the establishment of post-offices, but Jefferson 
 and his compeers, after securing freedom of speech 
 and the press, would never have been so foolish as to 
 have left this power unrestricted if it had been even 
 dreamed of. They would never have left open a 
 power by which the press could be stricken down at 
 will under the incidental prohibition and espionage 
 power of Congress and the postmasters. 
 
 No better illustration of the danger of this power, 
 even in its milder forms, could be found than the 
 method of espionage and the congressional statute 
 proposed by the Judge himself at the close of his 
 address. Under them the postmasters are to search 
 the mails and retain what they and a United States 
 commissioner deem ohjectionahle on the ground of 
 obscenity, with trial aftericards before a United 
 States court. The property is thus unconstitu- 
 tionally condemned without trial, before it has 
 reached the public at all, or done any injury, 
 and by a tribunal practically secret, irresponsible, 
 and foreign to the people. The supposed of-j 
 
48 MB. wakeman's reply 
 
 ender, or at least his property, is destroyed by 
 an Inquisition without ever having reached the 
 constitutional judges — the public and a jury of his 
 state and vicinage. This as the final result, is the 
 freedom of the press, and all that the Judge would 
 leave us of American liberty ! If the post-office is, 
 for any purpose or pretense however specious, 
 allowed to become a United States criminal tribunal, 
 its jurisdiction is unlimited, for it may judge of 
 everything mailed, and so reach every man, woman, 
 and child. It must also use only powers that belong 
 to the Inquisition, secret examination, espionage, 
 and decoy, for without these it can do nothing, and 
 such postal laws cannot be executed. The United 
 States jurisdiction, if once allowed, must and can only 
 be exercised by means of a criminal procedure en- 
 tirely foreign to our institutions, and which proves 
 at once that this power to use them was never 
 granted to, and must never be construed to be given 
 to, the United States. 
 
 (2.) These postal laws are but another form of the 
 re-union of church and state. They were obtained 
 by the representatives of certain " religious " sects 
 so as to give them, through their agents, the power 
 of supervising public morals according to their 
 views, and in their interest, by means of the tem- 
 poral government and criminal prosecutions admin- 
 istered by their " agent." To this end the power of 
 espionage and decoy were surreptitiously placed 
 over the mails with terrible penalties, which have 
 nothing to do with postal purposes or the post-office 
 whatever. The Comstock laws of the state of New 
 York have been brought to sustain these national 
 lavrs by statutes establishing a Society for the Sup- 
 
TO JUDGE HURLBUT. 49 
 
 pression of Vice — practically under theological in- 
 fluences — to work them, to give half of the fines to 
 their agent, and to even authorize arrest without 
 warrant. 
 
 The success of this ecclesiastical attempt at tem- 
 poral government has brought into play another 
 " Society for the Suppression of Crime " with a distin- 
 guished clergyman at its head, who is actively 
 engaged in disciplining our state Governor and 
 Courts. Besides these two flourishing specialties of 
 spiritual power, we have many other societies for 
 this and that " good object," backed by state laws 
 specially obtained to help the clerical influences to 
 make and administer the laws of tJcis w?or^c? instead 
 of looking after the next. 
 
 Our temporal common law government is pretty 
 well abdicated/ Its duty of administering to the 
 common temporal wants and necessities of the peo- 
 ple is delegated to corporations and monopolies, 
 who tax and fleece the ^^eople without mercy. The 
 duty of protecting the people by administering the 
 common criminal law through the municipal police, 
 District Attorneys, and Grand Juries, preparatory to 
 action by courts, is handed over to these amateur 
 societies, half theological and half criminal. 
 
 This whole method of legislation is contrary to our 
 institutions, ineffectual and disgusting. No power in a i 
 democratic republic should execute the criminal 
 laws except oflicers thereof responsible to the people. 
 These special agents are responsible to no one but 
 the church influences which appoint and sustain 
 them. They are simply the reappearance of the 
 Christian Inquisition. 
 
 Again, this method of administering criminal law 
 
00 MR. WAKEMAN'S REFLT 
 
 is ineffectual. It lives by torturing and scotching the 
 snakes of vice and crime, but never killing them. 
 This espionage-detective system is the nursery of tho 
 crime upon which it feeds. The crime is the stock 
 upon which the amateur official makes a "raid " from 
 time to time to keep him in salary and fame, but which 
 he would really no more destroy than the poultryman 
 would kill off all of his stock at once. Besides this 
 reason, these espionage postal laws can never, from 
 their very nature, be sufficient or effective. The 
 only way is to break up the manufacturies and fount- 
 ains of the mischief under the state laws and by 
 their officers, as was done and can readily be done 
 again. Let this whole business of private and sec- 
 tarian detective criminal prosecution be abolished, 
 and then the police and prosecuting officers can, by 
 the press and people, be made to see and feel the 
 responsibility that officially rests upon them, to en- 
 force the laws effectively and impartially. 
 
 Is it not mortifying if not disgusting, after a hun- 
 dred years of trial, to see our post-office and state 
 criminal laws handed over to an Inquisition and 
 societies of this kind ? But when we find the lead- 
 ers of a League expressly formed "to separate 
 church and state " joining in the effort to render this 
 Inquisition constitutional, what words ought to ex- 
 press our feelings ! 
 
 V. This brings us to consider the motives that 
 lead some Liberals to try to make out this power to 
 be constitutional. These motives are a desire to protect 
 public decency and the morals of youth. I yield to 
 no one in my desire to accomplish these objects, but 
 
 1 know they cannot be effected by the lawlessness 
 of usurpation, or the sentimentalism that is regard- 
 
TO JUDGE nURLBUT. 61 
 
 less of consequences. From the Judge's proposed 
 state law on this subject I dissent, chiefly because it 
 is an attempt to supplant the Common Law which 
 prevails in all the states except Louisiana, for which 
 state Mr. Livingston's code was proposed, but never 
 adopted. The section which the Judge wishes to 
 revive from that oode omits the important point of 
 protecting the general public, as well as youth from 
 offenses against pudicity and decency. This is an 
 important element in the common-law offense known 
 as the circulation of obscenity, and it is one I am 
 unwilling to omit. The privacy and sacredness of the 
 human form and its physical ofiices are protected at 
 Common Law, and all pictures or descriptions of 
 them really obscene are contraband. My views on 
 this subject were expressed in the seventh resolution 
 at the Liberal Convention at ^Vatkins last summer, 
 and I have never since seen reason to chapge them. 
 It will be observed that they are much stronger than 
 the Judge's proposal, but they only embody the letter 
 and spirit of the Common Law, which needs no legis- 
 lation or societies or postal laws or agents to accom- 
 plish more than they can do: 
 
 " 7. Resolved, That we regard the power to sup- 
 press obscenity and indecency to be one of those 
 powers reserved in the U. S. Constitution to the peo- 
 ple and the states, and that it should be exercised 
 by them, not by the passage of laws surreptitiously 
 for religious sects and partisans, but by laws [if any 
 are needed] passed under general consent and after 
 public notice, and which can apply only to unequiv- 
 ocal and well-defined cases; that we regard the true 
 cure for obscenity and all danger therefrom to 
 be the care of children by their parents and guar- 
 
62 MR. wakeman's reply 
 
 dians, and their truthful education, at the proper 
 age, as to the nature and duties of the sexual rela- 
 tions ; that profanity, obscenity, and debauchery are 
 the sure results of retrograde and repressive theolo- 
 gies ; that the Liberal cause is the cause of knowl- 
 edge, liberty, and purity, which are the best guar- 
 antees of each other, and that this Convention 
 hereby emphatically puts itself upon record as in no 
 sense sympathizing with, but as holding in severe 
 reprobation, those who seek, by the circulation 
 through the mails or otherwise of literature of an 
 obscene spirit and character, to corrupt, debauch, 
 and inflame the public, and especially youthful 
 minds ; and it hereby declares its emphatic approval 
 of the use of all such means as may be within the 
 legitimate scope of the government to secure the 
 repression both of the issue and circulation of such 
 matter by the press." 
 
 After careful examination I find that the Common 
 Law in force in every state and territory, except 
 Louisiana, is fully sufficient to effect all that can be 
 reasonably desired on this subject. It can be 
 enforced in any state or at any point from whence 
 the evil is sent, and is a perfect answer to the 
 demands of the friends of purity. Statutes and 
 definitions on this subject are, as Livingston says, 
 often worse than the offenses themselves. The wis- 
 dom of ages embodied in the Common Law does not 
 undertake to define obscenity, but w^hen the case 
 arises its officers send it before the judge and jury 
 of the vicinage who dispose of it so as to protect 
 the public and youth. The repeal of all statutes na- 
 tional and state on this subject would be a return to 
 common sense and Common Law in every way desir- 
 
TO JUDGE HURLBUT. 63 
 
 able. The Judge has done no more important ser- 
 vice than in fostering the spirit of reliance upon the 
 Common Law instead of artificial statutes and socie- 
 ties. It would be well not to set it aside even for 
 Livingston. Let the reader make its acquaintance 
 in the " Hand Books on Criminal Law," by Bishop 
 or Wharton, and he will be surprised at its simplicity 
 and wisdom. The penalties should be modified to 
 the age in which we live; all that has been foisted 
 into it by religious zealots in their efforts to make 
 Christianity a part of it should be removed as 
 foreign, and then I know of no better or safer crim- 
 inal code. 
 
 Instead of yielding to the Judge on the Common 
 Law I will imitate him, and apply to it the " loving 
 satisfaction " he expresses over Livingston. " Here I 
 take my stand. I shall ask no further limitation 
 of the liberty of printing than that imposed by the 
 Common Law under the constitution of my state and 
 country. I incline to ask the protection of the gen- 
 eral public and of youth from having obscenity in 
 any form exposed to their view, or foisted upon 
 them by mail, express, or otherwise, but let the 
 offenses be punished by the states and not the Fed- 
 eral Government — they only having power to punish 
 |i.buses. This is the Common Law ; it is constitu- 
 tional ; it is called for by the cultivated sentiments 
 of mankind ; and it is conservative of the morals of 
 youth. If we maintain the residue of our criminal 
 code, let us by no means omit that." 
 
 But let us by no means permit the criminal legisla- 
 ture and law of the country to pass into sectarian 
 hands under the belief that the Common Law and its 
 process is obsolete or has " faded from the legal hori- 
 
54 MR. wakkman's reply 
 
 zon." Liberty and safety are to be found in it now 
 as ever. 
 
 VI. The foregoing points dispose of all the Judge's 
 address except his own motive for making it, which 
 is the key to it, and brings up, perhaps, the most 
 important subject of all. For that reveals the con- 
 viction which has made such an apology for an 
 unconstitutional law possible from him and others. 
 
 It is an appeal to the Liberals to be measured 
 by the moral standards of their conservative oppo- 
 nents, or else it is merely an appeal to their coward- 
 ice, which the Judge cannot intend. In either 
 aspect every intelligent Liberal must dissent. 
 " Elder Sniffles " must not be allowed to settle the 
 criterion of morality for Liberals, although his con- 
 gregation unceasingly cry " How true that is !" Let 
 us see for a moment how the subject stands before 
 them. 
 
 Between the retrogrades and the progressives lies 
 " the means," as was pointed out in the Faneuil Hall 
 speech, composed of all "mean" people, and the 
 respectable acquiescent majority with Elder Sniffles 
 as their mouth-piece. They have no conception of 
 a state of mifid or morals beyond their own ideal. 
 All different from that, they think below it and act 
 and speak accordingly. The Judge would recog- 
 nize this readily enough as to everything except 
 " morality," and as to that only he urges Liberals to 
 accept the Elder's standard. Whether they will or 
 not, will be determined not by the cry of the latter's 
 congregation, but by honest attempts to adapt new 
 modes of life to the demands of an ever changing, 
 social environment. In these efforts new sugges- 
 tions and even new steps forward in morality will be 
 
TO JUDGE nURLBUT. l^ 
 
 taken in future as they have in the past, only it is to 
 be hoped with the advantage of some knowledge of 
 social science. Each step will be accompanied with 
 the groans of our Judge and the Elder lamenting 
 the degeneracy of their age. It would indeed be 
 better and safer if they could be limited to groans, 
 but they will occasionally resort to argument and 
 then the danger becomes real. They thereby pre- 
 cipitate the change by making the weakness of the 
 old transparent. The extremes are then too ready 
 to advance and so frighten the conservatives into 
 repressive legislation and violence. So it was in the 
 contest between slave labor and free labor, and now 
 the friends of Mr. Heywood bring on a similar 
 social contest between slave love, with its obscenity, 
 and free love, with purity, as they would describe 
 it. The danger is that the weakness of the argu- 
 ments of the Judge and Elder will get us into 
 premature social changes. For instance, they both 
 agree thoroughly that Freelove is " unnatural," and 
 yet in the same breath, almost, they joke about its 
 being a return to the state of nature of the " man-like 
 ape or ape-like man." This talk about reverting to 
 the man-like ape is not funny in the presence of 
 Herbert Spencer's " Sociology," where every form of 
 sexual relation is found to be " natural " to the human 
 race according to its history and environment. Such i. 
 arguments about "reversal" have been thrown up 
 by Comte, Spencer, and Fiske, but have no effect on 
 the " Freelovers " who contend that it is simply a 
 " backwardness in coming forward " in those who 
 make it, because they cannot conceive of any social 
 state better than the one that inevitably gives orphan- 
 age, widowhood, forced maternity, or celibacy, pros- 
 
50 MR. wakkman's eeplt 
 
 titution, private vices unspeakable, marriages often 
 worse than death, and last, and least, " obscenity " 
 itself. The Freplovers show that the natural state of 
 society was the physical and the sexual slavery of 
 woman to man both within the tribe and when cap- 
 tured in war ; that all marriage systems, and even 
 forms, are but continuation of this slavery, until 
 finally the Romish Church recently instituted close 
 monogamy, so that one woman is " given away " to 
 one man whom she promises to obey. Now every 
 shade of the " Freelove Reformer," fnstead of desir- 
 ing to return to any state of nature of this kind, is 
 striving to emancipate woman from it, and to achieve 
 an independence, culture, purity, protection, and 
 sustenance which shall render such slavery as im- 
 possible to women as it has been made to the laborer, 
 who was equally a slave or serf when monogamy was 
 enforced upon woman as the Church took away her 
 liberty and rights under the Roman law. 
 
 Such considerations as the foregoing will always 
 convince the greater part of the Liberals that though 
 they cannot agree fully with Mr. Ileywood, yet 
 they cannot consistently follow the Judge's advice 
 (singular for a judge !) and sacrifice him, by lynch 
 or mob law, to please his venerable friend " the 
 Elder." They will trust to the common sense of the 
 people, and the law of evolution, to effect needed 
 changes in laws and social life, and to modify the 
 extremists who would precipitate or retard social 
 progress. The Reformers may seem to advocate too 
 rashly the opinion of Hamlet that " There is nothing 
 eitber good or bad, but thinking makes it so." But 
 this t?iinhingy or opinion, is also dependent upon 
 social laws and changes that science is including in 
 
to JUDGE nURLBTTT. 67 
 
 her own domain of order, whereby gradual, and 
 therefore beneficial, growth and progress are secured. 
 In the end, by these means, and not by mob law, 
 purity and the family will be indicated, as Herbert 
 Spencer intimates at the close of his "Sociology." 
 
 The real answer to the " Freelovers " is that they 
 have not as yet been able to practically realize their 
 aspirations in such a way as to make them more use- 
 ful to society than the monogamic marriage. As soon 
 as they do, it will be seen that no form of the sexual 
 relation was ever natural or permanent in the human 
 race, and that to talk of the "emancipated " woman 
 as a return to the old slave victim of the lust of tfio 
 tribe or of one man is simply ridiculous. The argu- 
 ments borrowed by the Judge from the Elder on this 
 subject, so easily and idly thrown out, are just 7uch 
 as from their unhistorical character in the past, and 
 their unscientific glance into the future, are in danger 
 of aiding the extreme progressives in bringing upon 
 us the disintegration of oar present marriage forms 
 rashly and not for the public good. Such subjects 
 are still much more tender than those of property and 
 government, and should never be entered upon by 
 those who do not recognize that society is indeed a 
 living organism, and that social experiments too 
 closely resemble vivisection to be ever rashly under- 
 taken. The true reformer will prepare his path, and 
 know well in every step of progress he takes where 
 his foot can be safely put down before he takes it up. 
 Unfortunately, /oo^5 will rush in where angels fear 
 to tread ; then people, of the state of mind of the 
 Judge and the " Klder," are perfectly convinced that 
 no step must ever be taken at all, and that by statute, 
 or even "mob law," as the Judge intimates, all 
 
'58 MR. wakeman's eeplt 
 
 chaoge must be forbidden, and no man be allowed to 
 make a fool of liimself. 
 
 It is quite evident that but for this state of mind 
 the Ju Ige's address, and certainly its closing para- 
 graphs, would never have been written. It is really 
 an apology for the Liberal League addressed to 
 Elder Sniffles' congregation. It yields r.ll the power 
 into their hands in the vain hope that they would 
 not use it to hurt Liberalism. Ihe proper and ex- 
 exprcted answer to this surrender has been made by 
 the most prominent and intellectual successor of the 
 worthy Elder, the Rev. Joseph Cook, in his Boston 
 Prelude, on this Syracuse Congress. He finds the 
 Judge to be the advocate of " looseness j'''' and to all 
 intents and purposes as bad as the "repealers" 
 themselves. Thus will it always happen when the 
 leaders of light and liberty give up their rights and 
 seek approval from the representatives of supersti- 
 tion and bigotry. Liberals will probably prefer to 
 stand by their own convictions, and the right to 
 express them under the Constitution. 
 
 Nor are they to be held responsible in making 
 such claim, for the convictions of each other, except 
 as they expressly assume them. The proper way is 
 to regard all Liberal people as substantially divided 
 like the French Assembly into the Right, the Center, 
 and the Left. All are members of the large mass of 
 Liberalism, but neither representing nor responsible 
 for the others. On the Right might be placed the 
 editor of llie Index and his just hatched Liberal 
 League of America. On the Left would stand Mr. 
 Heywood with his Freelove conventions. Between 
 the two as the Center, we find the great mass of the 
 Liberals of the country in various organizations, and 
 
TO JUDGE HURLBUT. C7 
 
 both seek the same thing — the most effective sup- 
 pression of corrupt literature? 
 
 4. Is it quite the right thing to assume that men 
 and women unconvicted of crime are abettors of 
 crime because they arc not willing to have crime 
 punished by unconstitutional laws ? 
 
 5, After all, is not the demand for that sort of 
 literature — the supply of which to children and 
 youth all decent people wish to suppress — due chief- 
 ly to the parents themselves, who meet the natural 
 curiosity of their children either with evasions, 
 frowns, or absolute lies ? 
 
 G. Grant that there are bad people in the old 
 League — and I indignantly deny that one particle of 
 proof of that has yet been presented — how is the 
 new League to keep them out of its pale, a thing 
 which xKt church has ever yet succeeded in doing ? 
 
 7. Why shall we not all come back to the faith 
 that free speech will cure its own evils so far as they 
 can be cured ? 
 
 8. If the mail-carrier is responsible for the immo- 
 rality of what he carries, how does he escape that 
 responsibility by either shutting his eyes or allowing 
 the package's to be sealed ? If the logic of the 
 Comstock law is at all superior to that of a donkey, 
 why should we not have everything which goes 
 through the mails open to the eyes of a censor 
 morum? Why not make clean and thorough work 
 if we undertake it at all ? Why allow the detestable 
 criminal to defeat us by a Utile mucilage and a high- 
 er-priced stamp ? Are the friends of virtue deter- 
 mined to make practical fools of themseWes ? 
 
 A Fkiskd of Both Leagues. 
 
/ EXTKACTS FKOM THE CONSTITUTION 
 OP 
 
 b NATIONAL DEFENSE ASSOCIATION. 
 
 Article II. — The objects of this Association are ; 
 
 To investigate all questionable cases of prosecution 
 yinder what are known as the Comstock Laws, State 
 /or National ; and to extend sympathy, moral support 
 and material aid to those who maybe unjustly assailed 
 by the enemies of free speech and a free press. 
 
 To rescue those who may be con\dcted and impris- 
 oned for no other crime than exercising the natural 
 right to think their thoughts and express them orally 
 or in piint. 
 
 To defend honest investigators in aU departments 
 of science, and to uphold the right of the people to 
 acquire a useful knowledge of human physiology. 
 
 Finally to employ all peaceful and honorable means 
 to roll back the waves of intolerance, bigotry, and 
 ignorance, which threaten to submerge our cherished 
 liberties. 
 
 Article lH. — Any friend of these pui-poses may be- 
 come an active member of this Association by the pay- 
 ment into its Treasury of the sum of Ten Dollars 
 ($10.00), and the payment of One Dollar (.$1.00) shall 
 entitle the donor to a certificate of honorary member- 
 ship for the period of one year, and to a report 
 from the officers of this Association of its receijDts, 
 disbursements and transactions. 
 
 A. L. RAWSON', Pres. 
 JOHN P. JEWETT, Vice Pres. 
 E. B FOOTE, Jr., M. D., Sec. 
 HUGH B. BROWN, Treas. 
 
 Executive Committee: 
 W. McDonald. | C. Winterburn, M. D. | C. A. Codman. ^ 
 
 T. C. XjELAND, Chairman, 
 
 201 Efist list Street, New York. 
 
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