Oddbins: By Popular Demand

TRANSMISSION THROUGH THE MAILS OF ANARCHISTIC PUBLICATIONS

M E S S A G E

FROM THE

PRESIDENT OF THE UNITED STATES,

TRANSMITTING

A COMMUNICATION FROM THE ATTORNEY-GENERAL RELATIVE TO THE TRANSMISSION THROUGH THE MAILS OF CERTAIN ANARCHISTIC PUBLICATIONS.

April 9, 1908.—Read; referred to the Committee on the Judiciary and ordered
to be printed.

To the Senate and House of Representatives:

I herewith submit a letter from the Department of Justice which explains itself. Under this opinion I hold that existing statutes give the President the power to prohibit the Postmaster-General from being used as an instrument in the commission of crime; that is, to prohibit the use of the mails for the advocacy of murder, arson, and treason; and I shall act upon such construction. Unquestionably, however, there should be further legislation by Congress in this matter. When compared with the suppression of anarchy, every other question sinks into insignificance. The anarchist is the enemy of humanity, the enemy of all mankind; and his is a deeper degree of criminality than any other. No immigrant is allowed to come to our shores if he is an anarchist; and no paper published here or abroad should be permitted circulation in this country if it propagates anarchistic opinions.

THEODORE ROOSEVELT.

THE WHITE HOUSE, April 9,1908.

DEPARTMENT OF JUSTICE,
Washington, March 31, 1908.

Sir: On March 20, 1908, I received from you the following letter:

The DEPARTMENT OF JUSTICE:

By my direction the Postmaster-General is to exclude La Questione Sociale of Paterson, N.J., from the mails, and it will not be admitted to the mails

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unless by order of the Court, or unless you advise me that it must be admitted. Please see if it is not possible to prosecute criminally under any section of the law that is available the men that are interested in sending out this anarchistic and murderous publication. They are of course the enemies of mankind, and every effort should be strained to hold them accountable for an offense far more infamous than that of an ordinary murderer.

This matter has been brought to my attention by the mayor of the city of Paterson. I wish every effort made to get at the criminals under the Federal law. It may be found impossible to do this. I shall also, through the Secretary of State, call the attention of the governor of New Jersey to the circumstances, so that he may proceed under the State law, his attention being further drawn to the fact that the newspaper is circulated in other States. After you have concluded your investigation I wish a report from you to serve as a basis for a recommendation by me for action by Congress. Under section 3893 of the Revised Statutes lewd, obscene, and lascivious books and letters, publications for indecent and immoral uses or of an indecent and immoral nature, and postal cards upon which indecent and scurrilous epithets are written or printed, are all excluded from the mall, and provision is made for the fine and imprisonment of those guilty. The newspaper article in question advocates murder by dynamite. It specifically advocates the murder of enlisted men of the United States Army and officers of the police force, and the burning of houses of private citizens. The preaching of murder and arson is certainly as immoral as the circulation of obscene and lascivious literature, and if the practice is not already forbidden by the law it should be forbidden. The immigration law now prohibits the entry into the United States of any person who entertains or advocates the views expressed in this newspaper article. It is of course inexcusable to permit those already here to promulgate such views. Those who write, publish, and circulate those articles stand on a level with those who use the mails for distributing poisons for the purpose of murder; and convictions have been obtained when the mails have thus been used for the distribution of poisons. No law should require the Postmaster-General to become an accessory to murder by circulating literature of this kind.

There was also a letter to you of March 19,1908, from Hon. Andrew S. McBride, mayor of the city of Paterson, in the State of New Jersey, and certain newspaper clippings, two of which contain what purport to be translations of an alleged article in the publication La Questione Sociale mentioned in your letter, and which I understand to be printed and circulated in Italian. The article thus attributed to La Questione Sociale, as translated in the clippings, reads as follows:

We want everybody to be with us. We invite everybody to get together and arm themselves. Seventy-five per cent have only a knife in the house which will only cut onions.

It will be a good thing for everybody to have a gun. When we are ready the first thing to do is to break into the armory and seize the rifles and ammunition. Then all the people will be with us as soon as they see this. The next thing to do is to get hold of the police station, and when the police see that they are not strong enough the chief of police will ask for soldiers.

Even at that the dynamite is easy to get for us. Twenty-five cents’ worth will blow a big iron door down. We don’t want to forget that the dynamite will help us to win. Two or three of us can defy a regiment of soldiers without fear. We will start when no one is thinking anything about it. Then we can beat them man for man. At that time show no sympathy for any soldiers, even if they be sons of the people. As soon as we get hold of the police station it is our victory. The thing is to kill the entire force. If not, they will kill us. After we have done this the first thing to do is to look out for ourselves first, and then for the people who helped us.

We must get into the armory; and in case we can not, then we wall blow it down with dynamite. Then, when we are ready: we must set fire to three or four houses in different locations on the outskirts, which will bring out the fire department and all the police. Then we will start a fire in the center of the city. This will be an easy thing to do, as the police and firemen will be on the outskirts.

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I have carefully examined the law relating to the subject-matter of your letter of March 20, and in accordance with your direction submit the following report thereon. I must premise, however, by saying I have not sought information as to the accuracy of the translation of the article, nor yet as to the character of the publication itself, and the antecedents or purposes of its publishers, except in so far as these are indicated by the alleged passage in the same article hereinbefore set forth. If this publication does not come within the class of periodicals entitled to transportation in the mails as mailable matter of the second class, for reasons other than the sentiments it expresses, or the illegal or immoral character of its contents the Post-Office Department has ample authority to deny it admission to the mails, and I am informed that in fact this has been done for reasons altogether independent of the peculiar characteristics of the alleged article called to your attention. Moreover, while it would be appropriate, of course, to ascertain all the material facts respecting the periodical concerned, or the individuals responsible for its publication before instituting proceedings of any kind which might affect their rights or interests, I understand your instructions as directing a report upon the assumption that the alleged newspaper in question, and others of a similar character habitually publish articles substantially similar to the one translated in the clipping sent me. Your letter asks in substance:

First. Whether the publication of such articles constitutes a criminal offense on the part of the publishers.

Second. Whether this offense is punishable by the Federal courts.

Third. Whether such publications are criminal or excluded from the mails by any existing statute of the United States.

Fourth. Whether, if they are not, the Congress can constitutionally enact a law or laws providing for their exclusion and their treatment as crimes.

Fifth. Whether, in the existing condition of the law, the Postmaster-Genera] can be compelled to admit such publications to the mails and transport and distribute them as mail matter.

1. The article in question supposing it to have been accurately translated, constitutes a seditious libel, and its publication, in my opinion, is undoubtedly a crime at common law. (See Russell on Criminal Law, vol. 1, sec. 1, chap. 28, p. 595.)

In Rex v. Lovett (9 C. &. P., 462), Littledale, J., says:

If the paper has a direct tendency to cause unlawful meetings or disturbances and to lead to a violation of the laws, it is a seditious libel.

Referring to the above-mentioned offense, Professor Greenleaf says:

This crime is committed by the publication of writings blaspheming the Supreme Being, or turning the doctrines of the Christian religion into contempt and ridicule, or tending by their immodesty to corrupt the mind and to destroy the sense of decency, morality, and good order; or wantonly to defame or indecorously to calumniate the economy, order, and constitution of things which make up the general system of law and government of the country; to degrade the administration of government or of Justice; or to cause animosities between our own and any other foreign government, by personal abuse of its sovereign, its ambassadors or other public ministers; and by malicious defamations expressed in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby to expose him to public hatred, contempt, and ridicule. This descrip-

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tive catalogue embraces all the several species of this offense which are indictable at common law; all of which it is believed are indictable in the United States, either at common law or by virtue of particular statutes. (B Greenl. Ev., 164.)

In Starkie on Libel (1st ed., p. 525) the test of the criminality of such a publication is said to lie in the answer to the following question: “Has the communication a plain tendency to produce public mischief by perverting the mind of the subject and creating a general dissatisfaction toward government?” In the publication you have called to my attention all persons reading it are urged to procure arms, to seize, or, if that be impossible, to destroy by dynamite certain public buildings; to resist forcibly, and, if practicable, kill police officers endeavoring to discharge their duties as such, and also the military forces which might be sent to aid in the restoration of order. It is immaterial whether the writer referred to the Regular Army of the United States or to the organized militia of the State of New Jersey in this connection, and the criminal character of his utterance is not affected by the fact that he failed to designate any particular policeman or any individual officer or enlisted man of the Army or militia among his intended victims.

A person delivered a ticket up to the minister after sermon, wherein he desired him to take notice that offenses passed now without control from the civil magistrate, and to quicken the civil magistrate to do his duty, etc.; and this was held to be a libel, though no magistrate in particular was mentioned. (Bacon’s Abrig., tit. Libel (A) 2; Russell on Crimes, vol. 1, p. 623.)

In this instance the publication not only suggests but urges arson, murder, riot, and treason against both the State and the National governments. There can be hardly a clearer or stronger case of a seditious libel at common law.

2. It is quite clear, however, that such a publication constitutes no offense against the United States, in the absence of some Federal statute making it one. This was determined in the early case of United States v. Hudson and Goodwin (7 Cr., 32), decided February 13, 1812. The report says:

This was a case certified from the circuit court for the district of Connecticut, in which, upon argument of a general demurrer to an indictment for a libel on the President and Congress of the United States, contained in the Connecticut Courant of the 7th day of May, 1806, charging them with having in secret voted $2,000,000 as a present to Bonaparte for leave to make a treaty with Spain. The Judges of that court were divided in opinion upon the question whether the circuit court of the United States had a common-law Jurisdiction in cases of libel.

The court determined in this case that the courts of the United States have no common-law jurisdiction in criminal cases, pointing out that no provision of the Constitution or statutes enacted under its powers had conferred such jurisdiction, and decided that it could not be implied from the mere necessity of protecting the Federal Government in the execution of its constitutional duties. The court says in conclusion:

Certain implied powers must necessarily result to our courts of Justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which can not be dispensed with in a court, because they are necessary to the exercise of all others; and so far our courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases, we are of opinion, is not within their implied powers.

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From the foregoing considerations I conclude:

(1) That the printing and circulation of the paper in question, supposing it to be correctly translated, was clearly an offense at common law.

(2) That of this offense the courts of the United States have no jurisdiction in the absence of any act of Congress declaring it a crime and authorizing its punishment.

3. In compliance with your instructions, I have very carefully investigated the statutes of the United States to see if they contain any provision making such a publication an offense against the United States or authorizing its exclusion from the mails. United States Revised Statutes, section 3893, as amended by the acts approved July 12, 1876 (19 Stat. L., 90), and September 26, 1888 (25 Stat. L., 496), contain the following provision:

Every obscene, lewd, lascivious book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, letter, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where or how, or of whom, or by what means any of the hereinbefore-mentioned matters, articles, or things maybe obtained or made, whether sealed as first-class matter or not, are hereby declared to be nonmailable matter, and shall not be conveyed in the mails nor delivered from any post-office nor by any letter carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, and any person who shall knowingly take the same, or cause the same to be taken, from the mails for the purpose of circulating or disposing of, or of aiding in the circulation of or disposition of the same, shall, for each and every offence, be fined upon conviction thereof not more than five thousand dollars, or imprisoned at hard labor not more than five years, or both, at the discretion of the court.

There can be, I think, no doubt that, in a sense, this article is a “publication of an indecent character;” but it is not, in my opinion, “indecent” in the sense in which the word is used in this section. It is also clearly an “article or thing intended * * * for * * * immoral use,” for its purpose is plainly to suggest several grave crimes, including treason, murder, and arson, an such a purpose is undoubtedly immoral; but the particular immoral purposes which the Congress intended to render matter unmailable under this provision of law are not such purposes as inspired the article in question. The language of the section shows clearly that it was intended to exclude matter either literally “obscene” in the sense generally attributed to the word, or of a nature ejusdem generis with obscenity. In this case the rule noscitur a scoiis must be applied to such words as “indecent” and “immoral” in the construction of a highly penal statute, and I can not advise you that the section above quoted authorizes either the prosecution of the persons mailing the paper in question or its exclusion from the mails.

The act of June 18,1888 (26 Stat. L., 187), as amended by the act of September 26 of the same year (ibid., 496) is as follows:

That all matters otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which any delineations, epithets, terms or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another may be written or printed, or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be

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conveyed in the mails, nor delivered from any post-office nor by any letter carrier, and shall be withdrawn from the mails under such regulations the Postmaster-General shall prescribe; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, and any person who shall knowingly take the same or cause the same to be taken from the mails, for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of the same, shall for each and every offence, upon conviction thereof, be fined not more than five thousand dollars, or imprisoned at hard labor not more than five years, or both, at the discretion of the court.

I have no doubt that the publication in question would come within the terms of this statute, if the article to which you have called my attention were printed on its cover or wrapper or it were so folded that this part of its contents might be exposed to public view. Its language is undoubtedly “libelous,” “scurrilous,” “defamatory,” and “threatening,” and if deposited in the mail in such manner that, without removing the cover, this language might be read by other persons than the one to whom it was addressed, it would unquestionably come within the prohibition of the act. I infer, however, since there is no statement as to the nature of its inclosure, that this paper was so wrapped and folded as not to disclose the article in question, or, at all events, that you wish my opinion as to its criminal character and the propriety of its exclusion from the mails independently of the question of its inclosure, and in case its publishers should provide a wrapper which would conceal its contents, and if thus inclosed, it would seem clearly not to come within the provisions of this statute.

There are some other provisions of law, such as those relating to letters, circulars, etc., connected with lotteries or spurious money and those prohibiting the transportation of noxious insects in the mails, which declare certain classes of matter unmailable, but they do not affect the case of an article of this character and I am obliged to report that I can find no express provision of law directing the exclusion of such matter from the mails, or rendering its deposit in the mails an offense against the United States.

4. There can be no doubt, however, that the Congress has full power under the Constitution to exclude such publications from the mails. As is said by Mr. Justice Field, in ex parte Jackson (96 U. S., 727, p. 732):

The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.

In the case of in re Rapier (143 U. S., 110), the present Chief Justice says, page 134:

It is not necessary that Congress should have the power to deal with crime or immorality within the States in order to maintain that it possess the power to forbid the use of the mails in aid of the perpetration of crime or immorality.

Many other authorities might be cited to the same effect. It has been, it is true, sometimes contended that the right to use the mail constitutes a form of property which is protected from “confiscation” under the fifth amendment, or that such use can not be denied to any citizen without an infringement of the rights secured by the first amendment; but these contentions have been repudiated by high authority and seem to me clearly untenable in view of the decisions of the Supreme Court cited above.

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I have the honor therefore to advise you that it is clearly and fully within the power of the Congress to exclude from the mails the publications similar to the one set forth in the clippings inclosed with your letter, and to make the use, or attempted use, of the mails for the transmission of such writings a crime against the United States.

5. There remains to be considered the interesting and important question whether, in the absence of any legislation by Congress either directing or prohibiting the transmission of such publications through the mails, the Postmaster-General, in the exercise of his authority as head of the Post-Office Department and acting under your instructions, has the right to exclude them, and this question is one of no little difficulty. It must be premised that the Postmaster-General clearly has no power to close the mails to any class of persons however reprehensible may be their practices or however detestable their reputation; if the question were whether the mails could be closed to any issues of a newspaper, otherwise entitled to admission, by reason of an article of this character in any particular issue, there could be no doubt that the question must be answered in the negative. Since, however, under the provisions of United States Revised Statutes, section 3882, and section 12 of the act approved March 3, 1879 (20 Stat L., 359), newspapers may be fully examined either at the office of mailing or at the office of delivering, if such examination shall incidentally disclose the fact that a newspaper contains matter similar to the clippings sent with your letter, then, inasmuch as “all printed copies struck off from one common impression, though they constitute merely secondary evidence of the contents of the paper from which they are taken, are considered as primary evidence of each other’s contents” (Taylor on Evidence, sec. 388; Rex v. Watson, 32 How. St. Tr., 82), this fact may be reasonably held to prove that the entire issue of the paper contains the same matter. Under such circumstances can the Postmaster-General exclude such issue from the mails.

At first sight it may seem that his right to do this is denied by the decision in Teal v. Felton (12 How., 284). In that case the postmaster at Syracuse, N. Y., refused to deliver to the plaintiff a newspaper sent him by mail because there was a mark on the wrapper in addition to the address, and the Postmaster-General, by circular, had directed that newspapers having marks on their wrappers should not be delivered, except upon the payment of full letter postage. The plaintiff brought a suit in trover for the value of the newspaper, and obtained a verdict and judgment for 6 cents. The case finally reached the Supreme Court, and it was determined by that tribunal, first, that the law did not justify the instructions of the Postmaster-General, and, secondly, that the person to whom a newspaper is addressed being its owner, can sue the postmaster for its value, if he refuses to deliver it when this is duly demanded at the office of delivery.

The court says (p. 292):

The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination, by the person to whom they are addressed. When tendered by the latter or by his agent, he has the right to the immediate possession of them, though he has not had before the actual possession. It then they be wrongfully withheld for a charge of unlawful postage, it is a conversion for which suit may be brought.

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And so in the case of Commerford v. Thompson (1 Fed., 415), in the United States circuit court for the district of Kentucky, the court, Brown, J., says (p. 419):

While there is undoubtedly power to prescribe what shall or what shall not be carried by post (ex parte Jackson, 96 U. S., 727-732), the mails are prima facie intended for the service of every person desiring to use them, and a monopoly of this species of commerce is secured to the Post-Office Department. (Rev. Stat., sec. 3982.) It is then scarcely necessary to say that the officers of the Department are the agents of the public in the performance of this service, and that no postmaster, whether acting under the instructions of the Postmaster-General or not, can lawfully refuse to deliver letters addressed to his office, unless special authority for so doing is found in some act of Congress.

These authorities and some other decisions and dicta which might be cited to the same effect are entitled to great respect, but, after a very careful consideration of the subject, I do not think they are decisive of the question here involved. That question may be thus stated: Is it the intention of the Congress, as expressed in the Federal statutes on this subject, that the mails should be used to convey libelous solicitations for the perpetration of treason and felonies with knowledge on the part of the Postmaster-General and his subordinates that they are used for this purpose?

In the argument of Mr. James C. Carter for the petitioner in the case of in re Rapier, he supposes this question to be asked (143 U. S., p. 117):

Is it true, then, that the Government of the United States is placed in the singular attitude that it can not discharge its duty of maintaining a mail service without extending the facilities which that service affords to criminals of every description to aid them in the commission of crime?

This question is no less material to the construction of the postal laws than to their constitutionality. The Congress undoubtedly has power to say what shall and what shall not be mailable; but, in the absence of compelling language, surely a construction of the statutes should not be adopted which would render officers of the Government accessories to grave crimes and convert the post-office into an agency destructive of the ends of all government. In several statutes relating to the postal service there has been an implied recognition that matter offered for delivery might be excluded from the mail, although no statute was in existence prohibiting its transportation. Thus, United States Revised Statutes, section 3890 provides for the punishment of “any postmaster who shall unlawfully detain in his office, any letter or other mail matter the posting of which is not prohibited by law,” and in United States Revised Statutes, section 5471, provision is made for the punishment of “any person employed in any department of the postal service who shall improperly detain, delay * * * any * * * newspaper.” It is obvious that these words “unlawfully” and “improperly “ are mere surplusage unless the detention might under certain circumstances be lawful and proper, notwithstanding that the posting of the mail matter might not be “prohibited by law.” So in section 15 of the act approved March 8,1897 (20 Stat. L., 359), it is said: “Nothing in this act shall be so construed as to allow the transmission through the mails of any publication which violates any copyright granted by the United States.” There is, in point of fact, no statute expressly prohibiting the transportation through the mails of publications violating the copyright law. The

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proviso just quoted assumes that because such publications are unlawful they will or may be excluded from the mails, and guards against any construction of the statute in which it is contained which might relieve them from this implied prohibition.

In the consideration of this question it is important to bear in mind the relations of the United States to persons using the postoffice. As is said in Teal v. Felton, above cited: “The United States undertakes to convey letters and newspapers for those to whom they are directed;” that is to say, it undertakes the business of a messenger. In so far as it conveys sealed documents its agents not only are not bound to know, but are expressly forbidden to ascertain what the purport of such messages may be; therefore, neither the government nor its officers can be held either legally or morally responsible for the nature of the letters to which they thus, in intentional ignorance afford transportation. But in the case of printed matter, intended for general circulation, and which, by virtue of the statutes above mentioned, and in consideration of the reduced rate at which it is transported, the officers of the Post-Office Department have the legal right to thoroughly inspect, it seems obvious that neither these officers nor the Government which employs them can escape responsibility for the consequences if they knowingly transport matter which becomes, and which they must know might be reasonably expected to become a cause of crime.

It is said by Mr. Justice Field in ex parte Jackson, supra, referring to the postal laws (96 U. S., 733):

In their enforcement a distinction is to be made between different kinds of mail matter—between what is intended to be kept free from inspection, such as letters and sealed packages subject to letter postage, and what is open to inspection such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.

It seems clearly unreasonable to construe these laws without regard to this distinction, and no less unreasonable to give them a construction which would make the Postmaster-General and his subordinates conscious, even if involuntary, agents in the solicitation of treason and felonies and the circulation of seditious libels.

There is another aspect to this question. To determine whether those responsible for such publications have a legal right to their transportation in the mails, it may be material to determine whether they would have any adequate remedy if refused such transportation. In the case of Commerford v. Thompson, above cited, while the court held that there was no right to exclude from the mails the matter excluded in that case, it also held that the remedy by injunction was not open to the plaintiff. The language of the court is as follows (1 Fed., 422):

Conceding that the act of the defendant in detaining these letters was unauthorized, and that the complainant might maintain an action at law for damages, it dose not necessarily follow that he is entitled to an injunction. The writ of injunction does not issue as a matter of course, even if the complainant has made out a technical right to relief. An application to the court of chancery for the exercise of its prohibiting powers or restricting energies must come by the dictates of conscience, and be sanctioned by the clearest principles of justice. The granting of an application is largely a matter of discretion and is addressed to the conscience of the chancellor, acting in view of all the circumstances connected with the case. A party seeking this extraordinary

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remedy must come to court with clean hands, and show, not only that his claim is valid by the strict letter of the law, but that in justice and equity he is entitled to this particular mode of relief.

After citing many authorities to sustain this position and examining the facts of the case, in so far as these were disclosed by the record, the court concluded (1 Fed., 425):

In any light in which this case can be viewed, it is impossible to avoid the conclusion that the court is required to lend its aid to a scheme condemned alike by Congress and by public opinion. Complainant should be left to his remedy at law.

How the Congress views the “schemes” disclosed in the article from La Questione Sociale sufficiently appears from the following provision in the act approved March 7, 1907 (34 Stat. L., 908):

No person who disbelieves in or who is opposed to all organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to all organized government, or who advocates or teaches the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific or of officers generally, of the Government of the United States or of any other organized government, because of his or their official character, shall be permitted to enter the United States or any territory or place subject to the jurisdiction thereof.

It is a matter of notoriety, and therefore of judicial knowledge, that this measure was enacted in obedience to imperative demand of public opinion. I can not doubt, therefore, that any court of conscience would reach the conclusion with that announced in Commerford v. Thompson if asked to compel the dissemination throughout the country of the publication inclosed with your letter. Such a court would unquestionably leave the complainant to his remedy at law. What would be the value of that remedy!

It is well settled that at common law the owner of a libelous picture or placard or document of any kind is entitled to no damages for its destruction in so far at least as its value may depend on its unlawful significance. Thus, in the case of Du Bost v. Beresford (2 Camp., 511), a suit was brought for cutting a picture of great value which the plaintiff had exhibited, and it is stated—

It appeared that the plaintiff is an artist of considerable eminence, but that the picture in question, entitled “La Belle et la Bete,” or “Beauty and the Beast,” was a scandalous libel upon a gentleman of fashion and his Iady, who was the sister of the defendant. It was exhibited in a house in Pall-Mall for money, and great crowds went daily to see it, till the defendant one morning cut it in pieces. Some of the witnesses estimated it at several hundred pounds.

The plaintiff’s counsel insisted, on the one hand, that he was entitled to the full value of the picture, together with a compensation for the loss of the exhibition; while it was contended on the other, that the exhibition was a public nuisance, which everyone had a right to abate by destroying the picture.

Lord Ellenborough. “The only plea upon the record being the general issue of not guilty, it is unnecessary to consider whether the destruction of this picture might or might not have been justified. The material question is, as to the value to be set upon the article destroyed. If it was a libel upon the persons introduced into it, the law can not consider it valuable as a picture. Upon an application to the lord chancellor, he would have granted an injunction against its exhibition, and the plaintiff was both civilly and criminally liable for halving exhibited it. The jury, therefore, in assessing the damages, must not consider this as a work of art, but must award the plaintiff merely the value of the canvas and paint which formed its component part.”

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But for the error in the defendant’s pleading there would have been no right of recovery at all in this case; for, in Fores v. Johnes (4 Esp., 97), in which the plaintiff was a print seller in Piccadilly, and the action was brought to recover the value of a quantity of caricature prints, sold by him to the defendant, Lawrence, J., said:

For prints, whose objects are general satire or ridicule of prevailing fashions or manners, I think the plaintiff may recover; but I can not permit him to do so for such whose tendency is immoral or obscene nor for such as are libels on individuals, and for which the plaintiff might have been rendered criminally answerable for a libel.

It may be safely said that ex turpi causa non oritur actio is a well-recognized principle of law; a stronger case could hardly be presented for its application than a claim for damages by a would be murderer, incendiary, and promoter of rebellion against a public officer because the latter refuses to become a party to his crimes, or to use a great public service, supported in large part by the taxes and regulated by the laws of the nation, to aid in the subversion of orderly government and civil society.

While, therefore, in the absence of any express provision of law or binding adjudication on this precise point, the question is certainly one of doubt and difficulty, I advise you that, in my opinion, the Postmaster-General will be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second-class mail matter, which shall contain any article constituting a seditions libel and counseling such crimes as murder, arson, riot, and treason.

I am, sir, yours, very respectfully,

CHARLES J. BONAPARTE
Attorney-General

The PRESIDENT.

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