Defendants were indicted, under the act of March 3, 1825, for obstructing and retarding the passage of the mail, etc. They pleaded that Farris, the mail carrier, had been indicted for murder in a State court of Kentucky, and that a bench warrant was issued by said court and placed in the hands of Kirby, sheriff of the county, and that Farris was arrested on said warrant, without any intent on the part of the defendants to retard the mail. The judges were divided in opinion as to whether the defendants were liable on the facts stated.

Mr. Justice FIELD delivered the opinion of the court.

There can be but one answer, in our judgment, to the questions certified to us. The statute of Congress, by its terms, applies only to persons, who "knowingly and willfully" obstruct or retard the passage of the mail, or of its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation. When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves from the execution of which a temporary delay to the mails unavoidably follows.

All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged. Process of that kind can, therefore, furnish no justification for the arrest of a carrier of the mail. This is all that is decided by the case of United States v. Harvey, to which we are referred by the counsel of the government. The rule is different when the process is issued upon a charge or felony. No officer or employe of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the constitution and laws. The public inconvenience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges is far less than that which would arise from extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for Congress to exempt the employes of the United States from arrest on criminal process from the State courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language.

All laws should receive a sensible construction. General terms should

18 Law Rep. 77.

be so limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.

The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted "that whoever drew blood in the streets should be punished with the utmost severity," did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire "for he is not to hanged because he would not stay to be burnt." like common sense will sanction the ruling we make, that the act of Congrsss which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder. The questions certified to us must be answered in the negative; and it is so ordered.

Mr. Justice MILLER did not sit in this case.

And we think that a

OBSTRUCTING THE MAIL.

UNITED STATES v. MCCRACKEN.

[3 Hughes, 544.]

In the United States Circuit Court, Virginia, 1878.

Preventing a Horse from being taken from a stable to carry the mail, is not obstructing the mail.

HUGHES, J. The law declares that no one shall obstruct or willfully retard the passage of the mail, or any carriage, or horse, or carrier, carrying the same.

It contemplates an obstruction while the mail is passing from one place to another, and the obstruction of a carriage and horse while engaged in carrying the mail, the mail being in transitu.

The indictments under trial are for the offense just described, of obstructing and retarding a horse and vehicle in and while actually carrying the mail.

TE

Now this is a very different offense from that of preventing a horse from being taken out of a stable to be used for the purpose of carrying the mail. This particular section of the law does not contemplate such an act, and therefore it is useless to go on with the case. I would have to set aside the verdict if the jury should render one of guilty.

The prosecution submitted to a verdict of not guilty.

POST-OFFICE LAWS-UNLAWFUL FRANKING

DEWEES' CASE.

[Chase Dec. 531.]

In the United States Circuit Court, North Carolina, 1869.

Franking Printed Matter sealed in envelopes is not franking letters, and though unlaw. ful does not subject the offender to punishment.

John T. Dewees, representative in Congress of the United States from the Raleigh District in the years 1868-69, made some arrangement with one Cunningham, by which the latter was enabled to transmit his business circulars through the mails without paying postage thereon. The circulars were printed, sealed up in envelopes, franked by Dewees as member of Congress; or the franked envelopes were furnished by Dewees, and used by Cunningham, it did not appear which.

For this he was indicted in this court, and found guilty by a jury. Whereupon he moved in arrest of judgment that the indictment described no offense for which punishment was denounced by the laws of the United States.

CHASE, C. J. An indictment was found against the defendant, charging that he, a member of Congress, franked letters, not written by himself, namely, envelopes which he consented should be used by one Cunningham for the purpose or transmitting through the mail, free of postage, certain mailable matter properly chargeable with postage; which franked envelopes were used by Cunningham. Upon this indictment the jury found the defendant guilty.

A motion has been made in arrest of judgment. The ground of the motion is that the act described in the indictment did not constitute the offense of franking letters in violation of law within the meaning of section 28 of the act of March 3, 1825. It is more particularly insisted, first, that the indictment does not allege that Dewees franked any letter as a member of Congress; second, that it does not negative

the conclusion that the letters were written by others under his direction, and on the business of his office; and, third, that a printed circular letter, contained in a sealed envelope, is not a letter within the meaning of the act of 1825.

That act provides that, "if any person shall frank any letter or letters other than those written by himself, or by his order, on the business of his office, he shall, on conviction thereof, pay a fine of ten dollars."

The first objection may, therefore, be easily disposed of. The penalty is pronounced against any person who commits the offense of unlawful franking. It was sufficient, therefore, to allege that Dewees committed the offense without alleging that he was a member of Congress. If this were otherwise, we think that the indictment which charges that John T. Dewees, member of Congress, committed the offense, is a sufficient allegation that he was a member of Congress when the offense was committed.

Nor do we think that more weight should be given to the second objection. In an indictment for a statutory offense, it is sufficient that it is substantially set forth, though not in the precise words of the act.1

In the present case the fact that the letters were not written by the order of the defendant on the business of his office, is sufficiently negatived by the affirmation that the envelopes which he franked were used, with his consent, by Cunningham, for the purpose of transmitting free through the mail matter chargeable with postage.

The only serious question is that presented by the third objection, that the franking of envelopes for the transmission of printed circulars through the mail is not the franking of letters within the meaning of the the act.

It is not denied that the franking of these envelopes, for the purpose intended, was a violation of the law.

The franking privileges of members of Congress cover only correspondence to and from them, printed matter issued by authority of Congress, speeches, proceedings and debates in Congress, and printed matter sent to them. It is very clear that the circulars franked by the defendant did not come within either of these descriptions. The franking therefore, was unlawful.

But, is it made a penal offense by the act of Congress? The answer to this question depends on the meaning of the word "letter" as used in the act.

It is strenuously insisted on behalf of the defendant, that the word means only a manuscript letter. In support of this view, it is urged, that the act itself in denouncing a penalty for franking letters other than

1 U. S. v. Batchelor, 2 Gall. 15; U. S. v. Pond, 2 Cur. 265.

not every treason is within that statute. Treason to any other government than our own would not answer its requirements. An Irish or Hungarian rebel would hardly be excluded from practicing as an attorney here, if otherwise qualified, because of his treason to the British Queen or Austrian Emperor. Treason is very truly and justly regarded as the highest crime known to the law, but that is only true of treason against the State which enacted the law; for of treason against any other State the law takes no notice, and Sir Walter Scott but expressed the common judgment of mankind when he said that 'treason upon political accounts, though one of the highest crimes that can be committed against a State, does not necessarily infer anything like the detestation which attends offenses of much less guilt and danger.'

"Indeed it must not be forgotten that in this case no treason against the State of West Virginia, whose Courts are invoked to consider the subject, has been either proved or confessed, and the only acts stated that could amount to the crime of treason were perpetrated against the United States, and for which the party has been pardoned by that government. Now it would be straining the point too far to hold, as contended for, that the war being waged against the United States, of which the State of West Virginia was one, was, therefore, waged against her in the sense contemplated in the statute against treason, and that, therefore, the acts in question were treason against the State and felony within the statute. For while it is not intended to deny that the same act might constitute treason against the United States and also against the State, and the traitor be held responsible to each for his treason, respectively, yet, to constitute treason against the State, it is not enough to wage war against the United States generally or collectively, or as component parts of the National Union, but it must be done directly against the State, in particular, by invading her territory, attacking her citizens, subverting her government and laws, or attempting her destruction by force, etc., and that too by a citizen of the State; for none but her citizens owe her allegiance, and are, therefore, bound by that allegiance to protect and defend her against all assaults of her enemies. Others may be enemies, but the citizen only may be enemy and traitor also, and the latter no less because he is the former. The temporary disability which attaches to the applicant on account of his character of enemy ceased when that character terminated, and that was when he submitted to the government and took the oath of annesty on the terms prescribed by the President. It is true that act would not relieve from the consequences of treason, if any, committed by him against the State, yet as only the citizen can commit that crime it can not be laid to the applicant's charge on the facts confessed, unless the court should hold the act of February 3d, 1863, void, which declares that any citizen of the State, who shall thereafter levy war against the United States, etc., shall be considered as having expatriated himself as far as regards this State, and shall thenceforth be deemed no citizen thereof. And if in point of law no citizen of this State, then, in point of law no traitor to the State."

§ 62. Object Must be of Public Nature. — In R. v. Frost, it was laid down that to constitute levying war against the Crown the object of the insurrection must be of a general nature. As if a person act as the leader of an armed body of men which enter a town, and their object be neither to take the town nor to

1 People v. Lynch and others, 11 Johns.

2 Prize Cases, 2 Black, 109.

549.

3 9 C. & P. 129 (1837).