the post-office department was relied upon for evidence as well as the custom-house. The net revenue accruing from the postoffice during the year preceding the reduction, amounted to £1,659,509, 178, 2d. And it is notorious that at a recent date Sir James Graham, the home secretary, after having been detected in opening certain diplomatic letters which passed through the mails, and being charged with it in parliament, carefully avoided anything which should seem like a waiver of a right to do so. He even admitted that it had been done before.

The right of the sovereign to a monopoly of the post-office in European countries, rests upon one of these powers, and unless one at least of them belongs to our federal government, we think their right to a monopoly fails. Has the government, then, any such powers? If it has, it must derive them from the constitution itself. It cannot take either of them as a ne

cupation by the Spaniards. But posts on the present footing are a modern invention.

In France posts were established by an edict dated June 19, 1464, in the reign of Louis XI., the great object of that crafty monarch being to possess himself at the earbest time of all that was going on within and without his kingdom. It was a part of his police system. In the year 1619, under the reign of Louis XIII., the system was completed, and a more regular form given to it by the appointment of a controller-general of posts. In 1676 the practice of farming out the postal revenue was introduced by the minister Louvois. This was continued until 1791, after which the government collected its own rates. But the Post-office was subordinate to the grand department of finance, and its receipts relied on to contribute to the general revenue. As to the right of the government to control the transmission of intelligence, it may be stated that in 1825, letters sent by commercial couriers from Paris to London were broken open, and it was said, in answer to complaints, that the right to send couriers was a privilege, in consideration whereof the government had the right to examine the contents of the letters, and as late as 1828 an executive department existed, entrusted with the unsealing of letters. Since its abolition (January, 1828,) the secret police have always been in the habit of opening letters, although every postmaster had been required to take an oath to observe the inviolability of letters.

In England, a postal system seems first to have been established by Stat. 12, Car. II., anno 1660, which authorized the king to settle a post-office, and appoint a governor. Posts of a certain sort had existed long before. In the time of the Scottish war, there had been one set of posts to perfect the communication with the army in the North. The universities had their posts. Under the reign of the first Charles a postal franchise was confirmed by the king to William Frizell and Thomas Witherings. (19 Rymer, Feed. 385.) The object was the accommodation of the English merchants, and the principal business of the postmasters was to furnish horses for those who wished to travel expeditiously, and to despatch extraordinary packets on special occasions. But after the act of 12 Car. II., the post-office receipts formed part of the revenue of the realm. By Stat. 15 Car. II., cap. 4, the revenue of the general post-office was settled on the Duke of York and his heirs male, and by Stat. 1 Jac. II., C. 12, it was enacted that this revenue should belong to the king and his successors.

cessary incident to sovereignty, for by the terms of the constitution itself, and the familiar doctrine of constitutional law, all the attributes and incidents of sovereignty, not granted by express terms or by necessary implication, are reserved to the

states.

First, then, as to making the post-office a source of general revenue. This right was earnestly claimed, as we have seen, by the executive officers in the earliest days of the government, and it has been assumed to a certain extent in all the subsequent legislation, although the tendency has been to throw part of the expenses of the department upon the general government. But, most clearly, the constitution does not say that the post-office shall be relied on as a source of general revenue. In the enumeration of powers in the eighth section are these paragraphs:

"1. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States.

"2. To borrow money on the credit of the United States."

Expressio minus, exclusio alterius is the rule of constitutional interpretation. These are the only sources indicated for raising funds "to pay the debts and provide for the common defence and general welfare." Their enumeration confines the government to them. And we think it clear that neither of the indefinite terms, taxes, duties, imposts, and excises, can include post-office charges. We are confirmed in this impression by the fact that in Mr. Patterson's basis of a constitution contained in a series of resolutions proposed to the convention, he thought it necessary to enumerate the post-office rates as a legitimate source of revenue.' The convention rejected his language, and, we think, his theory also. Besides, if we include postoffice rates under the term " taxes," how can we meet the fundamental principle of the constitution, that taxation and representation must go together?

The other doctrine, that the government has a right to control the transmission of intelligence may answer for the crumbling monarchies of Europe, but it is at variance with all the principles of a republican government. It savors of despot ism, of martial law. It is fatal to the freedom of speech and of the press, and as such is directly denied by the first amend

12 Madison Papers, 863.

ment of the constitution. The claim was once made in this country by the introduction of a bill to prevent the circulation of incendiary matter through the mails. The origin and history of this bill need not be detailed, but without referring to the exciting causes which suggested it, we must adhere to the opinion that the moment the power of searching and sifting the mails is surrendered to the government, the independence of the nation is gone. The principle is too clear for argument.

If, then, the federal government have no power to raise a general revenue from the post-office, and no power of espionage, upon what ground can they claim this exclusive right to superintend the transmission of "mailable matter?" Upon what ground can they claim the right to say what "mailable" matter is? If the last right exists, who shall say where it ends? It may be enacted one year that newspapers and letters constitute "mailable matter," the next that pamphlets and printed books do, and so on, little by little, until the government monopolizes the carrying trade of the country. The absurdity of the claim proves its fallacy. Then there is the grand question recently opened by the invention of the electric telegraph. Perhaps "mailable matter" is transported over the wires, but after the government have monopolized the lightning, we shall look back in melancholy sorrow upon that passage in James Otis's speech, in which he congratulated the people of America that rain and dew did not come from abroad.1

1 We believe this term "mailable matter" was first technically used by PostmasterGeneral Wickliffe during the post-office agitation of 1843-1845. This extreme claim of constitutional rights for the general government was undoubtedly suggested by an honest desire to protect the postal revenue from utter annihilation by the competition of private expresses. Nor would we deny to Mr. Wickliffe the praise which is due to him for the vigilance and energy which he displayed in the discharge of the arduous duties of a most obnoxious office. But the only way to expose the fallacy of this claim of constitutional authority seemed to be to point out its absurdity. Other illustrations might be enumerated. In England, a practice has always prevailed of sending samples of calicoes, cotton goods, &c., through the mail. Why may not our government claim such articles as "mailable matter?" And if they may claim a monopoly in the transportation of small pieces, why may they not extend it to large packages? In short, the moment the right of defining "mailable matter" is conceded to the federal government, the power is practically given them of monopolizing the whole carrying trade.

The question of the telegraph, which is dismissed above with a little pleasantry, is one of vast magnitude. As soon as the apparatus is made more perfect, so that dispatches may be transmitted with more economy and accuracy, it

But even supposing that the government has the right to monop olize the business of transporting mailable matter within its limits, whence comes its right in regard to ship-letters, and its right to pass "retaliatory laws?" These rights must depend on the theory of general revenue, or the theory of espionage. Upon no other ground can the practice be justified of requiring all letters brought by a foreign vessel to merchants in Boston to pass through the office. The vessel may arrive after the office is closed for the night. The gentlemen to whom they are directed may be waiting upon the wharves. Yet the law is imperative. The letters must be sent to the office. They cannot be assorted till morning, and then they cannot be delivered without extra charge. Part of the amount thus charged goes to the master. What is the rest paid for? Why, for delivering the letter, (that is, giving it a place in the office,) and this may be anything but a favor.

But the principle of the retaliatory law is even worse. It is like an export duty, which is clearly unconstitutional. (Const. Art. 1,.§ 9, 5.) It provides that under certain circumstances, no foreign vessel shall take letters out of the country, except upon payment of a fixed rate. Regulations of this sort are generally popular, because the parties apparently affected are foreigners, and not entitled to the protection of our laws, but after all, our own citizens are compelled to pay the extra postage, just as under the operation of a high tariff, the consumers pay the duties. Really, the exercise of such a power seems to be an excess of authority not conferred by the constitution.

As a final result of these reflections, which are necessarily very crude, from the novelty of the question, and which are not perhaps expressed with proper care and dignity, we venture to deny that the post-office monopoly is constitutional. We have not taken this ground at the suggestion of any friends of cheap postage, or of any political reformers. The question of postal reform is already embarrassing congress, and the constitutional ques tion which has so long lain dormant must also soon be agitated. It may become so much involved with other party questions as

will probably prove a fatal competitor to the public mails. Can the government, then, claim the exclusive right to conduct it? We will not anticipate the question, but would only suggest that the surrender of it would give the government an inquisito rial power equal to Napoleon's police system under Fouché.

to render it improper for discussion in this journal, and we were anxious to consider it while it could be considered calmly. If the people wish for cheap postage, let them have it. If they wish to have their letters transported for less than it really costs, let the deficiency be paid out of the general treasury. If congress think it an object to establish a free mail, even to the most deserted posts in Oregon, why have they not quite as much right to do so as to establish a light-house, or to build a fort, or to carry free the letters of president's widows and the soldiers in Mexico? This would rest upon the principle set forth in the Federalist, that the post-office establishment should accommodate the people of the United States. Then, why should not the people of the United States pay for it, or at least make up the excess of expenditure? But the idea of monopoly, the idea that the post-office must pay for itself, that the department is a unit, that its receipts must be equal to every charge that can be put upon it, as for transporting free and dead letters, and the extraordinary expenses in the unsettled parts of the country, and that, to secure this, the competition arising from private enterprise should be destroyed, - this idea, though generally prevalent, seems wholly incorrect. If the government provides satisfactorily for the accommodation of the public, an opposition could not be sustained. If it does not, the people ought to have the benefit of an opposition. It is, after all, a clear principle of constitutional law as well as of popular feeling, that the post-office is made for the public, and not the public for the post-office.

Recent American Decisions.

Circuit Court of the United States for the District of Columbia. HUGH D. MCELRATH v8. BETSEY MCINTOSH ET AL.

The Courts of the United States have no authority to enjoin the officers of the gov ernment against performing any merely ministerial act. Case of Kendall v. United States, (12 Pet. 609,) examined.

The question whether a power of attorney from an Indian woman to another person, to recover the amount due to said Indian woman upon a land reservation (agreeably to the Indian treaties) and to retain half the amount recovered, as a compen