office in said city, to be conveyed by and in the mail, which said circular letters at the time the same were so as aforesaid by the said M. A. Dauphin, sent to and were deposited in the post-office at said city of New Orleans." The offense charged in each of the counts is either a naked sending to the postoffice by another with the proscribed intent or sending to the post-office with the same intent and a subsequent deposit in the post-office, but with no averment that the deposit was otherwise by the procurement of the defendant. Section 3894 is as follows: "No letter or circular concerning lotteries shall be carried in the mail. Any person who shall knowingly deposit or send anything to be conveyed by mail in violation of this section shall be punishable," etc. The validity of the information turns upon the meaning of the word "send;" or, rather, whether the transmission which the statute visits with the penalty is before or after the depositing. If either reading is adopted there is a necessity of supplying an ellipsis, for when the word "send" is used in connection with the mails, the sending may either be "towards or "to" signifying "into" or "in" the mails. If the meaning is that the sending precedes the deposit, it would follow - indeed it was so admitted in the argument that sending outside of the mail, the intent being that the thing should ultimately be conveyed by mail, was an offense whether it reached the mail or not. There may be constitutional authority vested in Congress, under the grant "to establish post-offices" and post roads, to create such an offense, though with reference to the force of a postal criminal statute, extending after letters had left the actual possession of the postal officers, in United States v. Parsons, Judge Betts says: "Legislation of such scope and extent would clearly not be in furtherance of the functions and duties of the Post-Office Department." And again:1"After the voluntary termination of the custody of a letter by the postoffice or its agents the rights of the proprietor are under the protection of the local law and not that of the United States." And it is difficult to see any difference in the dominion of the postal laws over a letter before that custody has commenced and after it is ended. The debates in the United States Senate in the years 1885 and 1836, upon the bill to prevent incendiary publications from being transmitted in the mails, which were participated in by Mr. Calhoun, Mr. Webster, Mr. Clayton, Mr. Buchanan, and to which Mr. Davis, of Massachusetts, so essentially contributed, and the bill itself, are most instructive as to the real nature and proper definition of the term "post-office," as used in the Constitution, and the extent of the power given to Congress over the subject. While there was great conflict of views as to the degree to which the other constitutional guaranties and exemptions qualified the right of government seizure and inspection of papers, it does not appear that any of the Senators claimed that the power could be exercised to any degree outside of the physical limits set up in the bill itself, viz., upon mail matter while being received, transmitted, or delivered by the postmasters and mail carriers:2 I do not make this reference to show that the law would necessarily be unconstitutional, even if it had the construction that the legislation means a sending which would leave the act unconnected with the mails, but as bearing upon the question of the intention of Congress in the use of this word; for had it here created and punished such an offense, it would be one of the few instances, if not the only instance, in which Con 1 2 Blatchf. 107. 2 See Congressional Debates (Gale & Seaton's Reg.), vol. 12, pts. 1 and 2. gress has attempted to regulate the transmission of mail matter on account of what is written or printed, except while in or while physically connected with the custody of the postal officers, i.e., except while physically in or being deposited or being delivered. True, the informations have been framed as if this part of the statute had made the offense to be "to send for deposit, followed by a depositing; " but this form of declaring can not change the statute. If it should be held by the courts that the "sending" intended by the statute preceded or might precede any deposit in the mail, it would leave an attempted but unaccomplished sending-i.e., a sending "towards" or "to," in the sense of "towards," the mail with the intent to have a conveyance by the mail-as unmistakable an offense as sending into the mail. But I think the meaning of this enactment is that the sending should follow the deposit, and should be "through" or "in " the mail. It makes the essential ingredients of the sending to be three: (1) knowledge of the character of the circular; (2) a causing to move forward as matter to be conveyed by mail; and (3) a violation of this section. Circulars concerning lotteries, so far as Federal law is concerned, may be lawfully sent anywhere, from any point to any point, with any intent, provided it be not in violation of this section. "In violation of this section " means in violation of the general and sole prohibition upon which it all rests, and in aid of which its penalties were established. That general prohibition is, "shall not be carried in the mail." No sending could conflict with this prohibition which was not effected in the mail. It has been urged that these words, “in violation of this section," qualify only the word "anything, "and were intended merely to indicate the thing prohibited; i.e., circulars concerning lotteries, etc. But merely dealing with the prohibited thing is not the act constituted a crime. It is dealing with the prohibited thing in the prohibited manner. The prohibited thing must be sent. It can never be questioned that sending, to be made an act cognizable by criminal laws, must be bounded by words which define it, not alone in intent, but which characterize it as necessarily involving motion. There could then be no definite or punishable sending unless it be in violation of this section; that is, the thing sent must be carried or sent in the mail. In the case of Paulina v. United States,1 the court had to determine the effect of just this qualification upon the meaning of a penal clause. The thing prohibited was the putting on board of goods from one vessel to another. The qualification was "contrary to the provisions of this act, or of the act to which this act is a supplement." The court say: " "Most apparently, then, both the letter and spirit of the law must be disregarded, or it must be admitted that the putting on board that is rendered culpable must be such a putting on board as is 'contrary to the provisions' of the original or supplementary act." Though the prohibited thing had been confessedly done, since it had not been done contrary to the provisions of the act, the thing was held not to be within the statute. The rule which should govern courts in determining in such case the limit of the act declared punishable is thus stated by Chief Justice Marshall: " "But should the court conjecture that some other act not expressly forbidden, and which is in itself the mere exercise of that power over property which 17 Cranch, 52. 2 p. 65. 3 p. 61. office in said city, to be conveyed by and in the mail, which said circular letters at the time the same were so as aforesaid by the said M. A. Dauphin, sent to and were deposited in the post-office at said city of New Orleans." The offense charged in each of the counts is either a naked sending to the postoffice by another with the proscribed intent or sending to the post-office with the same intent and a subsequent deposit in the post-office, but with no averment that the deposit was otherwise by the procurement of the defendant. Section 3894 is as follows: "No letter or circular concerning lotteries shall be carried in the mail. Any person who shall knowingly deposit or send anything to be conveyed by mail in violation of this section shall be punishable,” etc. The validity of the information turns upon the meaning of the word "send;" or, rather, whether the transmission which the statute visits with the penalty is before or after the depositing. If either reading is adopted there is a necessity of supplying an ellipsis, for when the word "send" is used in connection with the mails, the sending may either be "towards" or "to" signifying "into" or "in" the mails. If the meaning is that the sending precedes the deposit, it would follow - indeed it was so admitted in the argument - that sending outside of the mail, the intent being that the thing should ultimately be conveyed by mail, was an offense whether it reached the mail or not. There may be constitutional authority vested in Congress, under the grant "to establish post-offices" and post roads, to create such an offense, though with reference to the force of a postal criminal statute, extending after letters had left the actual possession of the postal officers, in United States v. Parsons, Judge Betts says: "Legislation of such scope and extent would clearly not be in furtherance of the functions and duties of the Post-Office Department." And again: "After the voluntary termination of the custody of a letter by the postoffice or its agents the rights of the proprietor are under the protection of the local law and not that of the United States." And it is difficult to see any difference in the dominion of the postal laws over a letter before that custody has commenced and after it is ended. The debates in the United States Senate in the years 1835 and 1836, upon the bill to prevent incendiary publications from being transmitted in the mails, which were participated in by Mr. Calhoun, Mr. Webster, Mr. Clayton, Mr. Buchanan, and to which Mr. Davis, of Massachusetts, so essentially contributed, and the bill itself, are most instructive as to the real nature and proper definition of the term "post-office," as used in the Constitution, and the extent of the power given to Congress over the subject. While there was great conflict of views as to the degree to which the other constitutional guaranties and exemptions qualified the right of government seizure and inspection of papers, it does not appear that any of the Senators claimed that the power could be exercised to any degree outside of the physical limits set up in the bill itself, viz., upon mail matter while being received, transmitted, or delivered by the postmasters and mail carriers.2 I do not make this reference to show that the law would necessarily be unconstitutional, even if it had the construction that the legislation means a sending which would leave the act unconnected with the mails, but as bearing upon the question of the intention of Congress in the use of this word; for had it here created and punished such an offense, it would be one of the few instances, if not the only instance, in which Con 1 2 Blatchf. 107. 2 See Congressional Debates (Gale & Seaton's Reg.), vol. 12, pts. 1 and 2. violation of this section." The revised act declared that the specified articles "should not be carried in the mail," and that the crime should consist "in depositing or sending them," as matter "to be conveyed by mail," "in violation of this section." Is it not manifest that while there is a change in the order of words, and, in one or two instances, the substitution of one word for another, and a change in the dependence of sentences, that there is not such "change in the language" as should be "regarded as evidence of intention to vary the statute?" Both the original and revised statutes include letters and circulars. A sealed circular is, for all purposes affecting the postal offices, a letter. But circulars were for the most part unsealed, and their character could, therefore, be ascertained. The much lower postage made their use much more frequent for purposes of advertisement, as distinguished from correspondence, and therefore they stood as the chief means of scattering alluring notices. The prohibition against carrying or forwarding would have little application to letters, but, enforced by vigilant post-offices, would have great efficacy with reference to circulars, which would probably be the great means for diffusing the information sought to be suppressed. The importance of the prohibition against "carrying" would, therefore, be manifest to all who were legislating to secure the object of excluding from the mails circulars belonging to the specified class. It must not be forgotton that the exclusion of this class of matter from the mail first appeared in the form of a postal regulation, unattended by any imposition or penalty,1 that, subsequently, Congress emphasized this regulation by punishing those who deposited and those who conveyed,2 that no good reason can be assigned why the punishment of those who convey circulars of the prohibited class should be withdrawn; that, on the other hand, a wide void would be made in the system of legislation on this subject unless such punishment be maintained; and that it has been altogether withdrawn from the statute in the revision, unless the word "sending" means after the depositing has been affected, and through the officers who have custody of the mail. There are difficulties and doubtless omissions of preventive measures if we adopt any of the proposed constructions; but, considering the greater difficulties which any other construction opposes, I am of the opinion that the proper conclusion is that by the section 3894 the Congress meant to re-enact the then existing law upon the subject, at least without any omission of the chief means of enforcing the entire prohibition, and that the sending denounced and punished is knowingly forwarding or causing to be forwarded through the mail, as matter to be conveyed by mail, i.e., as mail matter, after the prohibited article has been deposited in the mail, and could not include the naked sending to the post-office, which is alone charged in the informations. Let there be judgment sustaining the demurrers. 83m. Postal Laws - Mailing Indecent Matter-Sealed Letter. A sealed letter addressed and mailed is not within the phrase "other publications of an indecent character" in the United States statute.3 § 83n. Mailing Obscene Letter-Letters to Person Addressed aloneIndecent Matter not Exposed. — In U. S. v. Williams, the defendant was arrested 1 Act. of 1868, 15 Stats., p. 196, sec. 13. 2 17 Stats., p. 302, sec. 149. 4 3 U. S. v. Loftis, 12 Fed. Rep. 671 (1882). 43 Fed. Rep. 484 (1880). upon the complaint of Anthony Comstock, agent of the Society for the Suppression of Vice, upon the charge of sending an obscene letter through the mail. An examination took place before United States Commissioner J. J. Allen, for the purpose of determining whether there was sufficient cause to send the case to the grand jury. ALLEN, Commissioner. The defendant is charged with having violated the provisions of section 3893, as amended by section 1, act of July 12, 1876. The portion of the statute to which the charge relates is as follows: "Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of indecent character, * and every letter upon the * * ** envelope of which, or postal card upon which, indecent, lewd, obscene terms or language may be written or printed, are hereby declared to be nonmailable matter. And any person who shall, knowingly, deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, * shall be deemed guilty," etc. The particular act complained of is the depositing in the mail of Greenpoint Station, Brooklyn, on or about September 23, 1879, an obscene and indecent letter, inclosed in an envelope, addressed to Mr. George Rowland, of Greenpoint. Several questions are involved in this case: Is the letter referred to obscene or indecent? Is it such an one as is embraced by the statute? Was it deposited in the mail? And is the evidence such as to justify the belief that the defendant violated the statute as alleged? The letter is evidently obscene and indecent. Obscene matter is that which tends to deprave and corrupt the morals of those whose minds are open to such influences. This is the test given by Chief Justice Cockburn in Regina v. Hicklin, and adopted in later cases. In the case of Heywood,5 an obscene writing was defined as one offensive to decency, indelicate, impure, and an indecent one, as one unbecoming, immodest, unfit to be seen. Applying these tests, it is manifest that the letter in question is both obscene and indecent. 3 The proof of deposit in the mail consists of the postmark upon the envelope, and the testimony of the post-office officials. Both the English and American courts have held that postmarks afford presumptive proof of deposit in the mail, and, although some effort has been made to show that these postmarks might have been affixed otherwise than by the postal officials, there is sufficient evidence that the letter was deposited in the mail as charged. The question next to be considered is whether the letter referred to is shown by the evidence to be within the scope of the law. The offense charged is statutory, and the determination of this question depends upon the construction to be given to the statute upon which the charge is based. I find no reported case in which this precise question has been discussed and decided, and it will be necessary, therefore, to refer to the series of legislation upon the subject. The act of March 3, 1865, provided that "no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character" should be admitted into the mails, and punished their deposit therein. The act of June 8, 1872, added to the prohibited matter "any letter upon the envelope of which, or postal card upon which, scurrilous epithets may have been written or |