some cases, by the direct action of the officers of the postal service. *** In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals. *** All that Congress meant by this Act [Act of March 3, 1873] was, that the mail should not be used to tranport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished.

The same inhibition

has been extended to circulars concerning lotteries, institutions which are supposed to have a demoralizing influence upon the people. There is no question before us as to the evidence upon which the conviction of the petitioner was had; nor does it appear whether the envelope in which the prohibited circular was deposited in the mail was sealed or left open for examination. The only question for our determination relates to the constitutionality of the Act; and of that we have no doubt."

In U. S. v. Bennett (U. S. C. Ct., S. D. N. Y., 1879), 16 Blatch. 338, the constitutionality of the Acts of Congress declaring unmailable "obscene, lewd or lascivious" matter, was called in question, but Justice BLATCHFORD, then Circuit Judge, held that the question had been "definitely settled by the decision of the Supreme Court in Ex parte Jackson," supra. "That decision," the Court said, "related to a statute excluding from the mails letters and circulars concerning lotteries, but the views of the Court apply fully to the present case." The same views apply with equal apt

ness to the Acts of Congress now under discussion. There can be no doubt as to their constitutionality.

The main questions that will arise under this legislation will be as to what "delineations, epithets, terms or language" fall within the statutory prohibition. The descriptive words used in the Act of September 26, 1888, are as follows: "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." The meanings of the adjectives "indecent," "lewd," "lascivious" and

obscene," were well settled, prior to 1888, in numerons prosecutions under the postal laws then in force. In U. S. v. Bennett, supra, Judge BLATCHFORD held, after a careful and thorough consideration of the meaning of these words, that the test within the meaning of the statute is, "whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of this sort may fall." This case has been generally accepted as a correct interpretation of the statutory language, and the test laid down has been frequently applied by other courts: U. S. v. Britton (Commissioner's Ct., S. D. Ohio, 1883), 17 Fed. Repr. 731; U. S. v. Bebout (U. S. D. Ct., N. D. Ohio, 1886), 28 Id. 522; U. S. v. Wightman (U. S. D. Ct., W. D. Pa., 1886), 29 Id. 636; U. S. v. Slenker (U. S. D. Ct., W. D. Va., 1887), 32 Id. 691.

"Libelous" is another word with a long settled technical legal meaning, which it is unnecessary to con

sider here. "Defamatory" has also a settled meaning. "Words which produce perceptible injury to the reputation of another are described as defamatory:" Anderson's Dict. of Law; Odgers on Libel and Slander, I. "By defamation is understood a false publication calculated to bring one into disrepute:" Cooley on Torts, 193. "Scurrilous," however, is a new word to the law. It is defined in none of the law dictionaries, nor in any reported case. It was originally used, as already stated, in the Acts of Congress of June 8, 1872, and March 3, 1873, and in the Revised Statutes, but was omitted from the Act of July 12, 1876. Webster defines scurrilous as "containing low indecency or abuse; mean; foul; vile; obscenely jocular." In U. S. v. Smith (U. S. C. Ct., D. Ky., 1882), 11 Fed. Repr. 664, the words "d-d scoundrel and rascal," are recognized as coming within this term. "Threatening," as used in these Acts, also requires judicial definition. Anderson's Dict. of Law defines a threat to be "a menace of destruction or injury to one's life, reputation or property." Whether any threat whatever, however mild, if written upon an envelope or postal card, will render the writer liable to the penalties prescribed by Congress, has not yet been decided. If the language of the statute is to be literally interpreted, this must be the construction placed upon it.

In addition to these adjectives, descriptive of non-mailable matter, the prohibition is extended by the Act to language, etc., calculated and intended "to reflect injuriously upon the character or conduct of another." These broad ords seem to cover an immense

field, which was not reached by the earlier statutes. It was evidently the intention of Congress to absolutely close the mails to all unsealed matter which was not merely of a character to offend the instincts of propriety and decency, but which was calculated in any way to bring another person than the writer into disrepute or lower him in the esteem of those before whose eyes such matter might happen to come. The truth of the allegations makes no difference, nor does the Act confine the forbidden references to the person addressed. Language relating to a third party is equally within its penalties.

The Act under consideration is of such recent date that there have as yet been but few reported decisions construing it.

In U. S. v. Olney (U. S. D. Ct., W. D. Tenn., 1889), 38 Fed. Repr. 328, the defendant wrote upon a postal card as follows: "Mr. Editor: I thought that you was publishing a paper for the wheel, but I see nothing but rotten Democracy. I am a Republican and a wheeler, and you can take your paper and Democracy, and go to hell with it." The Court declined to charge, as a matter of law, that these words were scurrilous within the meaning of the Act, but left the question to the jury, subsequently sustaining a verdict of guilty.

In U. S. v. Davis ( U. S. C. Ct., W. D. Tenn., 1889), 38 Fed. Repr. 326, the exact language upon the postal card is not contained in the report of the case, but sufficiently appears from the opinion of the Court (HAMMOND, Ct. J.), which was as follows: "Since the extention by this Act of former statutes on this subject, there can be no doubt that that which is written on

postal cards must be clean and decent, and wholly free from the objections embodied in the language which has been quoted from the Act of Congress. Of course the courts must reasonably construe the words of the Act, and not allow a hypercritical judgment to take advantage of the elasticity of the language used by Congress, necessarily so general in its description of the offense, by bringing within the Act words or thoughts that are only rude, impolite, or not in good taste according to the standard of decency prescribed by the purists in language and thought. But, on the other hand, obvious indecency of thought or expression, according to the common sense, should not escape the penalty of this statute, nor that which obviously is calculated and intended to reflect injuriously upon the character or conduct of him who complains or is mentioned in the writing. And not only may the precise words be weighed in determining the question, but the whole context of the writing, and its evident spirit and tone, as they 'display' the meaning of those words, may be looked to by the court and jury. Inasmuch as the Act does not include profane language in its description of the offense, except as it may be embraced in the other terms used by Congress, and since in the common understanding the word 'damned' is called 'profanity,' it may be doubted if the use of that word was intended to be punished always. But this writer says: 'You can order the car back, and be damned.' In connection with the next phrase, which for sake of decency I shall not quote, although they have no dependence upon each other, and in connection with the whole writing in its tone

and spirit, it is both "indecent' and 'scurrilous' in the sense of the lexicographers, as well as the common understanding of its use. The next phrase above referred to is so vulgar as to admit of no doubt of its indecency, and the writer knew it to be so, and confessed by the use of only an initial letter for the most offensive word. If it be only 'slang,' still it is of that coarse, gross and essentially vulgar kind, that it cannot be placed upon a postal card without offending all. sense of decency, even among the commonest and coarsest of men, and the use of all such phrases is prohibited by this new Act of Congress. Again, the writer says: 'You are sharp, all of you are on the beat.' This, again, may be 'slang," but it is calculated, and obviously intended, to reflect injuriously upon the character and conduct of the addressee. Finally, he says: 'Tell that Radical to send my book back as he agreed.' To those familiar with the bitterness of current political strife and its evolution of distasteful epithets, there will be no doubt that this one was intended for opprobrium of a severe kind, innocent as the epithet seems to common speech, and it was thought by the writer to be 'defamatory' unquestionably.

"If the subject matter of this writing were political, having in view the almost unrestrained license in the use of defamatory epithets in political writing of almost every kind, except the very highest grade, and the fact that such epithets, which in the beginning are intended to denote ignominy and turpitude, become in the process of political conflict, by a process of development, badges of honor and distinction, and are cheerfully ac

cepted as such, I should say that this phrase did not come within the Act of Congress and was blameless, like 'Abolitionist,' 'Black Republican,' 'Copperhead,' 'Carpet-Bagger,' 'Scalawag,' 'Rebel Democracy,' 'Confederate Brigadier,' 'Bourbon,' 'Free Trader,' 'Tariff Robber,' 'Mugwump,' and the like. But the subject-matter of this writing is the return of the patent model of a car of some kind about which the writer was angry and ugly in his temper, and about which he writes indecently,' scurrilousy,' with evident purpose to defame and injuriously reflect upon the conduct of his correspondent. The commonplace and excessively vulgar style of the writing does not relieve it from its criminal character under this statute. One can be commonplace, and even vulgar, without being indecent and defamatory in the legal sense of the statute, as one may be either of these, or otherwise may violate the statute, without being commonplace or vulgar. That which shocks the ordinary and common sense of men as an 'indecency' is the test, as it is also with the other descriptive terms of the Act."

The principal case deals with an attempt to collect a debt by sending a communication through the mail by postal card, calculated and intended to humiliate and injure the persons addressed in public estimation. The Court there recognizes the fact, which is shown by the Congressional debates upon the subject; that one, if not the main, intention of the Act was to utterly suppress the "practice of enforcing the payment of debts by mailing postal cards or letters bearing offensive, threatening or abusive matter, which was open to the inspec

tion of all persons through whose hands such postal cards or letters happened to pass." The Act, says. Judge HAMMOND, was "instigated, as we all know, by the use of the mails by money collecting agencies to compel by such threats, designs and offensive epithets, delinquent debtors to pay their delayed debts:" U. S. v. Huggett (U. S. C. Ct., N. D. Ohio, 1889), 40 Fed. Repr. 636, 643. But the principal

case holds with much reason that the intention was only to exclude from the mails matter which was of an offensive nature. A mere dun, couched in proper language, may still be made upon a postal card, without rendering it nonmailable. If the dun, however, is coupled with a threat of suit, or even of placing the claim in the hands of a law agency or lawyer, it falls within the statutory prohibition.

Under Section 3893 of the Revised Statutes, as amended by the Act of July 12, 1876, the mails were open to all communications for the purpose of enforcing the collection. of debts, however abusive or threatening their language might be, provided it was not of an impure or immodest character. Thus, where a collector mailed his notices in an envelope, upon which was printed: "The Collector of BAD DEBTS, I am looking for an OLD BILL. The DEAD-BEAT Collector hires me to look them up,"-and followed this up with a postal card, upon which was printed: "Sir: Considering how near you can come to fill a bill, I have decided to post you on all the DEAD-BEAT lists I know of in the city, and have accordingly given th different agencies a chance at you." -the Court (NELSON, J.) held that no offense had been comu..ted: