Fine and imprisonment were the punishments for unlawfully delaying, embezzling, secreting, or destroying any letter or package not containing money; but if the letter or packet contained any kind of money, negotiable paper, bonds, or warrants, the punishment upon conviction was death. The carrier was forbidden to desert the mail before he reached his destination; robbing any carrier,[100] the mail, or the postoffice was punishable by death. Ten dollars was the penalty for an unlawful use of the franking privilege. One half of all the fines recovered went to the persons informing and prosecuting for the offences, and in 1797 it was provided that accomplices in the commission of postal crimes should be subject to the same punishment as the principals.[101] In 1810 whipping was abolished,[102] but the death penalty for a second robbery, or for putting the carrier’s life in jeopardy, was continued. This is strong evidence of congressional insistence upon the sanctity of the mails, since in 1825 only fine and imprisonment were the punishment for assaults on the high seas, or within admiralty jurisdiction with intent to commit a felony.[103]
Upon the basis of these early regulations, Congress has passed many laws calculated to prevent interference with the mails or their misuse; most of the original crimes are still forbidden and the changes made have been in detail rather than character, with one important exception: there has gradually been built up an Index Expurgatorius of articles which it is unlawful to deposit in, or to take from, the mails for purposes of circulation. But with this exception, the penal laws do not differ radically from those of a century ago.
Nearly all “Offenses against the Postal Service” have been brought together as Chapter 8 of the Criminal Code of the United States.[104] It is now unlawful to conduct, or profess to conduct, a postoffice without authority; to carry the mail otherwise than according to law; to set up private expresses; to transport persons unlawfully conveying the mail; to send letters by private express or for carriers to convey them over regular post routes otherwise than in the mail; to wear the uniform of a carrier without authority or to pose as a carrier of the United States mail when such is not in fact the case. Injuring mail bags, stealing postoffice property, stealing or forcing mail locks or keys, breaking into or entering a postoffice, unlawfully entering a postal car, stealing, secreting and embezzling mail matter or its contents,[105] assaulting a carrier with intent to rob and robbing the mail; injuring letter boxes or mail matter; “knowingly and wilfully” obstructing or retarding the passage of the mail, all are crimes punishable in the federal courts.
It is an offence for any employee of the service to detain, destroy or embezzle a letter or newspaper; for a ferryman to “delay the passage of the mail by willful neglect or refusal to transport”; for the master of a vessel to fail to deposit with the postoffice all mail from abroad or to break bulk before making such delivery. No one may sell or use a cancelled stamp or remove the cancellation marks; postal employees, moreover, are prohibited from making false returns to increase their compensation, from unlawfully collecting postage, from failing to account for postage or to cancel stamps, and from issuing a money order without payment.
There are also, as I have indicated, a number of laws denying the use of the mails for the transmission of obscene or libellous writings, lottery tickets and advertisements, fraudulent matter, poisons, intoxicating liquors, explosives and similar articles which come under the ban of the police power. Furthermore, the complexity of political life and more numerous administrative problems in the service, have given rise to a separate class of offences; thus it is criminal for a member of Congress to be interested in a public contract, or a postal employee in a mail contract; or for an employee to make or receive a political contribution. There is, finally, the so-called “newspaper publicity law,” the concluding paragraph of which compels, under penalty of a fine, the marking as an advertisement of all reading matter for the publication of which a valuable consideration is received.[106]
Marshall’s dictum in McCulloch v. Maryland has remained unquestioned; it has never been doubted that Congress has the power to punish offences against the mails themselves, or neglect of duty by postal employees. The constitutionality of such legislation has never been attacked; the courts have only been called upon to decide technical points. For example, the word “rob” is used in its common law sense; jeopardy “means a well-grounded apprehension of danger to life, in case of refusal or resistance”; pistols are dangerous weapons within the meaning of the law; and “all persons present at the commission of a crime, consenting thereto, aiding, assisting, or abetting therein, or in doing any act which is a constituent of the offence, are principals.”[107] The detention of mail by one employed in the postoffice, refers to a letter or packet before it reaches its destination; the taking must be clandestine and the intent criminal.[108] An indictment for advising a carrier to rob the mail must aver that the offence has been committed;[109] a sword in the hand, although not drawn, is a dangerous weapon; a pistol is presumed to be charged.[110] These are some of the questions that the courts have been called upon to determine.
Nor has there been any dispute as to the power of Congress to establish a monopoly by forbidding private postal enterprises.[111] As was pointed out in an early case, “No government has ever organized a system of posts without securing to itself, to some extent, a monopoly of the carriage of letters and mailable packets. The policy of such an exclusive system is a subject of legislative, not of judicial inquiry. But the monopoly of the government is an optional, not an essential part of its postal system. The mere existence of a postal department of the government is not an establishment of the monopoly.”[112] Thus questions have arisen as to the extent and scope of the original provision and the amendments that have been made to it.
In 1834, for example, New Orleans citizens complained of slow mails, and proposed a plan of forming a private association for a daily express line to New York. But the project being referred to Chancellor Kent for his opinion, he advised that “the objects of the association cannot be carried into effect, in the way proposed, without violating the postoffice law.”[113] In 1844 the Attorney General gave an opinion that letters carried over mail routes by private carriers could not be charged with postage, nor could the letters be detained; the only available course was “to enforce the penalties to which all unauthorized carriers of letters on the mail routes are by law subjected.”[114]
As for the general interpretation of the statute, a federal circuit court, in holding that it was not unlawful to carry an unstamped letter of advice concerning money shipped by express, said: “These provisions of the postoffice law, being in derogation of common right, must be construed strictly, and in the absence of clear and explicit language, forbidding the carriage of a letter, under the circumstances indicated, we must hold that the right to do so is not interfered with.”[115] The Supreme Court of the United States, however, had previously declared that the act was undoubtedly a revenue law,[116] although “not drawn with all the precision and explicitness desirable in penal legislation.” And the rule of interpretation as laid down by the Department of Justice was that the acts “are not subjected to the narrow rules formerly applied in the construction of penal statutes.... In our courts, such acts receive the same construction that would be put upon any other remedial legislation; that is, a fair, sensible, practical interpretation, without reference to any merely technical rule in favor of the accused.”[117]
The question arose in 1858 as to the legality of carrying letters to and from the postoffice in a town where a public carrier had not been appointed. The attorney general was of the opinion that the act forbade this. “A person,” he said, “who intends to make the carrying of letters his regular business, or part of his business, and to do it periodically for hire, in opposition to the public carrier, is legally incapable of receiving authority to take letters out of the postoffice for that purpose.”[118] But when the question went to the courts, a contrary position was taken. The Act of March 3, 1851[119] authorized the postmaster general “to establish postroutes within the cities or towns.” The court held that the word “postroutes” was not synonymous with “postroads” used in that portion of the act of 1827 which made criminal attempts to compete with the federal government in carrying the mail. Hence private letter carriers violated no law. This decision,[120] however, was overruled when Congress extended[121] the provisions of the Act of 1827 to all postroutes already, or thereafter established, and in 1872[122] declared letter carrier routes within cities “postroads.”[123]