“The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community: it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.” At common law, the committee argued, the king could not sanction a nuisance; by parity of reasoning a nuisance may be denied governmental encouragement.[162]
All of the anti-lottery legislation, enacted by Congress, has been sustained by the Supreme Court of the United States, although, I think, the reasoning might well have been more cogent. In the first case arising under the earlier legislation, the Court declared:
“The validity of legislation prescribing what should be carried, and its weight and form and the charges to which it should be subjected, has never been questioned.... 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.”[163] And in a later case, under the act of 1890, the freedom of the press also being at issue, the Court said:
“The states before the Union was formed could establish postoffices and postroads and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish postoffices and postroads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime and immorality within the states in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime and immorality.”[164]
Counsel for the petitioners in this case urged with considerable force that there was a valid distinction between obscene or indecent matter and lottery tickets and advertisements, but to this the Court replied:
“The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offence of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of the petitioners, since it would be for Congress to determine what are within and what are without the rule; but we think there is no room for such a distinction here, and that it must be left to Congress in the exercise of a sound discretion to determine in what manner it will exercise the power which it undoubtedly possesses.”
Special exception is taken by Mr. Hannis Taylor to the doctrines of the Rapier case. He says: “The act against the circulation of immoral literature, which was not drawn in a paroxysm of excitement, exhausts the entire constitutional authority over the intellectual contents of documents passing through the mails that Congress can exercise.” And referring to the exclusion of lottery tickets and advertisements: “This new born heresy—created to meet a special emergency—will be utterly repudiated by the American people the moment when the despotic and irresponsible power over opinion with which the fiat of the Supreme Court has armed Congress, is applied, as it surely will be, to some subject which will arouse and quicken the public conscience.”[165]
As yet, however, there has been manifested no disposition to repeal any of the lottery legislation. Congress has, in fact, made further exclusions, with slight popular protest. The act of July 31, 1912, excludes from interstate commerce, from the mails, and from importation into the United States, “any film or other pictorial representation or encounter of pugilists, under whatever name, which is designed to be used or may be used for purposes of public exhibition.”[166] This, probably, is the most advanced action yet taken by Congress.
It should be noticed, however, in concluding this review, that all articles which Congress has thus far excluded from the mails have been inherently different from the articles which may be transmitted, in that they may have a harmful effect on other mail or on recipients. Explosives, liquids, infernal machines, intoxicating liquors,—all are in their nature dangerous to the mail or to the addressees. Obscene literature and lottery tickets are proper subjects for denunciation by the government and Congress may attempt to minimize their evil by denying them postal facilities. It may be said, therefore, that all prohibitory legislation has had the character of police regulations; each exclusion, when assailed, has been justified on the facts of the particular case, and the Supreme Court has never gone so far as has a lower federal tribunal in declaring that, “Congress has exclusive jurisdiction over the mails and may prohibit the use of the mails for the transmission of any article. Any article, of any description, whether harmless or not, may, therefore, be declared contraband in the mail by act of Congress and its deposit there made a crime.”[167]
Fraud Orders.—The denial of postal privileges when they are used to defraud may be justified upon the same grounds as the exclusion of obscene matter and lottery tickets; Congress has authority to make the use of the mails subject to police regulations. But it is provided that “the postmaster general may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery”[168] or fraudulent scheme, “instruct postmasters at any postoffice at which registered letters arrive directed to any such person or company ... to return all such registered letters to the postmaster at the office at which they were originally mailed, with the word ‘Fraudulent’ plainly written or stamped upon the outside thereof” and they may be returned to the writers under such regulations as the postmaster general may prescribe. But under this section there is no authority to open any sealed letter.[169]